Sunday, January 07, 2007

McGrath reviews Posner on the subject of plagiarism

Of Judge Posner's "Little Book of Plagiarism," Charles McGrath of the New York Times writes: a useful and remarkably concise overview of the subject, and is in almost every respect a typically Posnerian production: smart, lucid, a little self-satisfied and tilting noticeably toward the economic-analysis end of legal theory.

McGrath's take on Posner's definition: Mr. Posner insists on two main criteria: not just deceit but fraudulence, in the sense that the reader is tricked into behaving differently — into buying a book, say, that he would have ignored had he known it was copied. IPBiz notes that a reader-centric definition of plagiarism was tried in the recent Andersonville / University of Tennessee business, and did not fare well.

Of Kaayva and How Opal Mehta Got Kissed, McGrath writes: Perhaps Ms. Viswanathan’s other great failing, besides cluelessness and the belief, surprisingly common among plagiarists, that you can get away with copying something that practically everyone has read, is that she doesn’t have tenure and friends in high places. IPBiz notes that McGrath seems to understand that cluelessness is no bar to getting into Harvard.

McGrath gets into the double-standard in the difference between how universities treat students and professors as to plagiarism: Mr. Posner acknowledges that in academic circles there is a double standard for plagiarism, with professors often getting off far more lightly than their students. Although McGrath notes that Posner lets off judges easily for taking the work of their clerks, McGrath himself never mentions the Laurence Tribe incident, which led the Harvard Crimson into detailed discussions of the double standard.

McGrath did mention Stephen Ambrose, Doris Kearns Goodwin, Kaavya Viswanathan, Ian McEwan, but indeed did not mention Tribe, Jimmy Carter, or the President of Korea University.

Of the clerk angle, McGrath wrote: In the book he readily acknowledges that judges publish opinions all the time that are in fact written by their clerks, but he excuses the practice on the ground that everyone knows about it and therefore no one is harmed. IPBiz notes that a common view of Ph.D. theses is that of moving bones in a graveyard, from one site to another. Does that excuse plagiarism for Ph.D. students merely because there is a perception that most theses are NOT original? What about the Ohio University students who failed to attribute material in the "background" portion of their theses? If the stuff is in "background," would not the reader of thesis understand that the student did not originate it and thus "no one is harmed"? McGrath and Posner alike don't seemed to be tuned into the reality at Ohio University. What about the debate about "plagiarizing oneself," that materialized at SIU? Certainly no one was harmed by the SIU administrator dusting off some of his earlier work. However, in the Madey v. Duke University case, there might be a different take.

IPBiz notes that in the intellectual property business, patent infringement is strict liability. There is NO independent creation defense. One cannot say "I didn't know about the other work." Furthermore, the question of damages is separate from the question of liability. One cannot say I didn't make any money from infringement, therefore I'm not a copyist. It's too bad that McGrath apparently does not know about Judge Posner's recent foray into the patent business (sitting as a district court judge) and what became of his views when they reached the Court of Appeals for the Federal Circuit. Separately, even in copyright law, which does have an independent creation defense, there are statutory damages (unlike in patent law), so that a low magnitude of commercial success for the copyist does not shield the copyist.

Of course, as noted previously, plagiarism and copyright infringement are two different things. There is NO federal law against plagiarism, and the Dastar case indicates that federal law does NOT protect a true author from a copyist as to "origin of source."

Of the idea, expounded by some, that plagiarism is rare among students, McGrath wrote:

No wonder young people are confused, and no wonder they continue to plagiarize in record numbers, with more than 40 percent of college students admitting to copying from the Internet in 2001. We talk to them about plagiarism in absolute terms, as if we were all agreed on what it was, and yet the literature suggests that once you’re out of school, it proves to be a crime like any other, with the punishment partly depending on whom you know and on how well you pull it off.

When not playing with Posner, the Times is predicting the doom of Time magazine:

NEW YORK TIMES media columnist David Carr takes the opportunity to rain on TIME's first weekend parade:

"At the end of the month, there will be significant layoffs at the magazine division... In the last six months, the huge rate base of Time magazine has been cut by almost 20 percent, the street date has been moved, and at the end of the month, the standard editorial model -- a centralized, well-paid cadre processing every bit of copy that comes in the door -- will be kaput..."

Carr explains: 'A tremendous amount of effort has been expended on TIME's new Web site, which makes its debut Monday."

Carr knocks the print magazine: "In its current state, a thin weekly on increasingly thin paper, TIME magazine is not much of a thing to behold."

[from the Drudge Report]

Fox spoofed plagiarism (from Willy Wonka for use in an essay about meeting George W. Bush) on "American Dad" on January 7, 2007.

Jason Walsh wrote: All around the world academics regularly rail against the Xerox-like characteristics of the Smurf-brained intellectual delinquents in their charge and the corporate entertainment complex is rather priggish about what it likes to call "intellectual property", a term which surely invites the counter "intellectual poverty". Corporations have profits to protect, so their view on these matters is easy to understand - and fun to dismiss. What is impossible to understand, however, is why, at undergraduate level at least, anyone would want to pass off someone else's work as their own. Properly cited references will get you the marks you want - neither original thinking nor primary research are required for a BA or BSc degree.
 [IPBiz: no original, or correct, thinking is required to publish in law reviews. Notice that Walsh only talks about academics talking about students, not about academics talking about other academics!]

Walsh continues: Here's the thing, though - there is no such thing as a new idea. At least, not in the broad "I have invented something that no-one has ever though of" way. As a result, lots of things look, sound and probably even smell rather like other things. 
 [IPBiz: well so much for patent law in Walsh World.]


Blogger Lawrence B. Ebert said...

Somewhat related to clerks doing the opinion writing for judges, the Wall Street Journal blog had some comments on the CJ Roberts salary proposal:

To be sure, lawyers at corporate firms can make a fortune, as Roberts did himself. At his former private sector employer, Hogan & Hartson, partners’ compensation last year was $725,000, reported American Lawyer magazine. Overall, median pay in 2005 for first-year associates at private firms was $100,000, according to a National Association for Law Placement survey, with those at the smallest firms earning $67,500 and their luckier pals at the biggest firms, with more than 500 lawyers, making $125,000.

On the other hand, according to 2004 figures from the U.S. Bureau of Labor Statistics, a federal district judge’s salary is more than 50% higher than that of the median attorney in the U.S. ($95,000). More specifically, the bureau found median pay for lawyers in company management at $126,000; in federal government at $108,000, in legal services at $100,000, in local government at $73,000 and in state government at $70,000. So while judges may make less than many corporate lawyers, they almost certainly make plenty more than the deputy district attorneys, assistant attorneys general, associate public defenders and others who couldn’t or didn’t want to work in the white-shoe ghetto.

Roberts isn’t particularly known as an acolyte of Law and Economics, a legal theory that seeks to harmonize jurisprudence with what its adherents say is rational economic behavior. But he does seem to apply its precepts to judicial recruitment, proposing that unless taxpayers fork over more to the robed ones, the bench will be stuffed with either “(1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase.” Indeed, he noted that most federal judges now come from public sector jobs, rather than the private bar.

Pleas for more money have become the signal feature of the chief justice’s annual reports, predating Roberts to his late predecessor, William Rehnquist. But the document also included a handful of statistics unrelated to how little judges are paid. Criminal cases last year declined 4%, Roberts said, partly because the Justice Department shifted resources from apprehending criminals to counterterrorism operations, which don’t as often result in prosecutions. Bankruptcy cases fell 38%, a striking figure because the prior year, 2005, saw a jump in filings as people rushed to beat a new law making bankruptcy less advantageous.

1:11 PM  

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