The following quotation comes from an article titled “Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights,” which was written by Stuart P. Green and published in Hastings Law Journal, Volume 54, Number 1, November 2002. I have included all the original footnotes, for obvious reasons.
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Plagiarism, Norms, and the Limits of Theft Law:
Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights
by STUART P. GREEN*
. . . . Again and again, plagiarists are referred to as “thieves”5 or “criminals,”6 and plagiarism as a “crime,”7 “stealing,”8 “robbery,”9 “piracy,”10 or “larceny.”11 Even some dictionaries define plagiarism as “literary theft”12 — a definition that is consistent with the term’s etymological origin, the Latin word plagium (which, at Roman law, referred to the stealing of a slave or child).13. . . The first person to use the term “plagiarism” in connection with literary works was the Roman poet Martial, who lived in the first century C.E. Under Roman law, the term plagiori (from plaga, Latin for “trap” or “snare”) referred to the stealing of a slave or child.32 Martial’s rival, Fidentius, had apparently recited Martial’s works to the crowd, as if they were his own.33 In excoriating Fidentius, “Martial compared [Fidentius] to the worst thing he could think of — a slave stealer, a plagiario.”34 The label stuck and would eventually be used for the first time in English by Bishop Richard Montagu, in 1621.35. . .
* Professor of Law, Louisiana State University; Fulbright Distinguished Scholar to the United Kingdom, University of Glasgow School of Law (2002–03). One can hardly begin to write about plagiarism without experiencing a heightened awareness of one’s intellectual debts. In addition to all of the authorities cited in the notes below, I would also like to express my thanks to Mike Carroll, Bill Corbett, Daniel Gervais, Stephen Higginson, Craig Joyce, Jason Kilborn, Michael Landau, Mark Lemley, Paul Marcus, Gerry Moohr, Catherine Rogers, and Lloyd Weinreb for their help on earlier drafts; and to Lohr Miller and Victor Mukete for their research assistance. My title “echoes” that of Sanford H. Kadish’s influential article, Some Observations on the Use of Criminal Sanctions in Enforcing Economic Regulations, 30 U. CHI. L. REV. 423 (1963). To all of my sources I give credit (but none of the blame) for this work.
5 Christopher S. Hawley, The Thieves of Academe: Plagiarism in the University System, 32 IMPROVING C. & U. TEACHING 35 (1984); Jacob Neusner, Foreword to First Edition, in THEODORE PAPPAS, PLAGIARISM AND THE CULTURE WAR 11 (1998).
6 James R. Kincaid, Purloined Letters, NEW YORKER, Jan. 20, 1997, at 95. Kincaid’s article also begins by quoting from Bowers’s and Sumner’s poems.
7 SKIDMORE COLLEGE DEPARTMENT OF CLASSICS, STUDY SKILLS/ WRITING IN CLASSICS/ RESEARCH PAPERS, at http://www.skidmore.edu/academics/classics/plagiarism.html.
8 BOWERS, supra note 1, passim. See generally JUDY ANDERSON, PLAGIARISM, COPYRIGHT VIOLATION, AND OTHER THEFTS OF INTELLECTUAL PROPERTY: AN ANNOTATED BIBLIOGRAPHY WITH A LENGTHY INTRODUCTION (1998); MARCEL C. LAFOLLETTE, STEALING INTO PRINT: FRAUD, PLAGIARISM, AND MISCONDUCT IN SCIENTIFIC PUBLISHING (1992); THOMAS MALLON, STOLEN WORDS: FORAYS INTO THE ORIGINS AND RAVAGES OF PLAGIARISM (1989); JUNE & WILLIAM NOBLE, STEAL THIS PLOT: A WRITER’S GUIDE TO STORY STRUCTURE AND PLAGIARISM (1985); MAURICE SALZMAN, PLAGIARISM: THE “ART” OF STEALING LITERARY MATERIAL (1931). In Jewish tradition, according to Joseph Telushkin, plagiarism is viewed as a kind of “double thievery: You steal the credit due to the person who first enunciated the idea, and then you engage in what Jewish ethics calls g’neivat d’at (‘stealing the mind’): you deceive your listeners into thinking that you are smarter or more knowledgeable and insightful than you really are.” JOSEPH TELUSHKIN, THE BOOK OF JEWISH VALUES: A DAY-BY-DAY GUIDE TO ETHICAL LIVING 93–94 (2000).
9 Jamie McKenzie, The New Plagiarism: Seven Antidotes to Prevent Highway Robbery in an Electronic Age, FROM NOW ON: EDUC. TECH. J. (May 1998), at http://www.fno.org/may98/cov98may.html.
10 ALEXANDER LINDEY, PLAGIARISM AND ORIGINALITY 3 (1952).
11 Id. See also Kincaid, supra note 6, at 97; K.R. ST. ONGE, THE MELANCHOLY ANATOMY OF PLAGIARISM 1 (1988); PAPPAS, supra note 5, at 30.
12 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 888 (10th ed. 1998) [hereinafter MERRIAM-WEBSTER] (to plagiarize is “to commit literary theft”).
13 See discussion infra notes 32–35 and accompanying text. Interestingly, under Scottish law today, the crime of plagium or “theft of a child” involves the unauthorized taking of a child from the control of a person who is legally entitled to that child’s care or custody. Hamilton v. Wilson, 1994 S.L.T. 431 (H.C.J. 1992); Hamilton v. Mooney, 1990 S.L.T. 105 (Sh. Ct. 1989). . . .
32 See O.F. ROBINSON, THE CRIMINAL LAW OF ANCIENT ROME 32–35 (1995).
33 F.J. McCormick, The Plagiario and the Professor in Our Peculiar Institution, 8 J. TEACHING WRITING 133, 133 (1989); LINDEY, supra note 10, at 95.
34 McCormick, supra note 33, at 133.
35 OXFORD ENGLISH DICTIONARY (2d ed. 1989) (entry on “plagiarism”).
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