Just a few days ago I finished reading, or rather browsing in, Richard A. Posner’s Public Intellectuals, and came away with respect for his analytical skills and his wide reading. But since then I’ve read two essays of his, one titled “The Truth About Plagiarism,”1 and the other simply “On Plagiarism”2 (apparently he was not as much concerned with the truth in this latter piece) and have come away doubting not merely his analytical skills, but his sobriety, perhaps even his rationality. The first of these was published in The Atlantic Monthly for April 2002, the second in Newsday for May 30, 2003. The two pieces are the same in substance, and I will treat them as if they were one, except that direct quotations will be marked A (for Atlantic) or N (for Newsday) to help anyone who wants to check their accuracy.

“The Truth About Plagiarism” is subtitled, undoubtedly by a Newsday editor, “It’s usually a minor offense and can have social value.” I assumed before reading the piece that the subtitle was the usual dollop of hype that editors apply to every piece that passes across their desk in an effort to get readers hooked, but in this case the subtitle is a fair one. Posner is engaged in trivializing the offense of plagiarism, which he does by ignoring its accepted meaning, and he does suggest that some plagiarism is socially beneficial. But what he is mostly engaged in is muddying the waters of discourse.

Here are his arguments, in each case followed by my comments.

Posner (A): We must distinguish in the first place between a plagiarist and a copyright infringer. They are both copycats, but the latter is trying to appropriate revenues generated by property that belongs to someone else…

Comment: I know of no one who needs to have the difference between plagiarism and copyright infringement expounded, but if there is any such person, he will be really confused by this misinformation. Copyright infringement is the use of copyrighted material without the permission of the owner; it need not (and usually does not) involve the pretence that the material so misused is the work of the infringer, nor need it involve the misappropriation of revenue.

Posner (A): “Plagiarism,” in the broadest sense of this ambiguous term, is simply unacknowledged copying….

Comment: There is nothing in the slightest ambiguous about plagiarism, nor does it have broader and narrower senses; it means unacknowledged copying.

Posner (A): [paraphrase by me, since the original passage is too long] Shakespeare, in the famous description of Cleopatra that he puts into the mouth of Enobarbus, is simply copying, almost verbatim, a passage from North’s translation of Plutarch’s life of Mark Antony. In The Waste Land, T. S. Eliot in turn “stole” that passage from Shakespeare, and in West Side Story Leonard Bernstein copied the plot of Romeo and Juliet. … [verbatim quotation resumes at this point.] If these are examples of plagiarism, then we want more plagiarism. They show that not all unacknowledged copying is “plagiarism” in the pejorative sense. Although there is no formal acknowledgement of copying in my examples, neither is there any likelihood of deception. And the copier has added value to the original—this is not slavish copying.

Comment: Yes, if these were examples of plagiarism, we would want more of it. And if my grandmother had wheels, she would be a trolley car. As Posner acknowledges in both papers, none of his examples consists of simple copying, and all of them except the Shakespearian adaptation of North’s passage do not merely permit, but require, their audiences to understand the derivation of the material it adapts. (The Shakespearian example differs merely in that it does not require the audience to recognize it as an adaptation of earlier material.) So even in Posner’s own “broadest sense,” none are examples of plagiarism.

Posner’s confusion here is hair-raising. In the penultimate sentence of the last-quoted passage he says that these are examples of unacknowledged copying, in the next he points out that no formal acknowledgements are necessary, because everyone understands, and is expected to understand, the relation of these examples to their several originals. Then he implies that plagiarism has some non-pejorative sense—what sense is that?

Posner (N): Plagiarism … unlike real theft … is not a crime. If a thief steals your car, you are out the market value of the car; but if a writer copies material from a book you wrote, you don’t have to replace the book. … The real victim of [the plagiarist’s] fraud is not the person whose work he copies, but those of his competitors who scruple to enhance their own reputations by such means.

Comment: If a plagiarist publishes something of mine as his own, he may be stealing from me something far more valuable than a car. If I was the first to write “E=mc2,” and you publish it as yours, you may have stolen the Nobel Prize from me. If I was the first to say “Hypocrisy is the tribute vice pays to virtue,” and you publish it as yours, you may have stolen from me a reputation as a wit or philosopher. But even if the words you steal from me are far less valuable than these examples, still you are both depriving me of the credit earned by those words (and they do earn credit, otherwise you would hardly trouble to steal them), and enhancing your own reputation at my expense. You are also misleading your readers, some of whom may go on to utter statements or perform acts of their own on the basis of the misunderstanding you have caused, and get into trouble because they’ve done so. But Posner thinks that if writer A plagiarizes from writer B, it is not B who is damaged (if anyone is), but writers C, D, and E, who have refrained from plagiarism.

“You don’t have to replace the book,” says Posner, using “book” as a grossly ham-handed metaphor for what has been stolen from the rightful owner. He here confuses book in the abstract sense, the sense in which the word is used in “I’m writing a book on the toads of Abyssinia,” and the concrete sense, as in “I used a book to prop open that swinging screen door.” Book means both “a literary work considered apart from its physical realization” and “object made of paper, cloth, and ink”; Posner apparently doesn’t understand this. Second, no one has ever supposed that the act of taking a passage from someone else’s book to use, with or without permission, in one’s own work is stealing the book, in either sense of book. What is being stolen, if the copying is done without explicit attribution to the source, is the credit that rightly belongs to the author.

Indeed, not only need the victim not replace what has been taken from her, she will usually be unable to replace it. For one thing, it is usually only by chance, and in exceptional cases, that the victim of plagiarism learns of her victimization; and in those few cases where she does learn of it, there will usually be little she can do about it. The law—especially in Judge Posner’s court—offers little remedy to a plaintiff in a plagiarism case, but generates lawyer’s fees, and consumes time and energy, without end. One of Posner’s reasons for trivializing the act of plagiarism seems to be that the law takes no great interest in it—and to a lawyer, where there’s no legal remedy, there’s no crime; if there’s no cure for a disease, the disease must be unimportant or imaginary.

The doctrine implied by Posner’s point that since the victim of plagiarism has suffered no material loss—she doesn’t have to replace the book from which material was taken without her knowledge, let alone permission—she has not really been harmed, is a curious one. I wonder if it applies to a woman who is raped while unconscious, and learns about it only by chance, long afterward? She too has suffered no material loss, and assuming that she was not impregnated by the rape, nor infected with a disease, nor physically injured in any way, what kind of case has she in Posner’s court? (I’m aware that Posner’s is an appellate court, and that he would hardly be presiding over a rape case; maybe his remoteness from substantive criminal trials is part of his problem in dealing with such matters.) If material loss is the criterion, what grounds has she for seeking a legal remedy?

This analogy, sound up to this point, fails in one important respect: rape is a recognized crime on which there is a large body of legislation and case law, so its victims are not likely to be fobbed off with “You don’t have to replace your virginity,” or remarks along those lines—but it can still provide some illumination. Posner differentiates between the crime of theft and more nebulous offenses, like plagiarism, by pointing out that the former deprives the victim of something of value—a car, for example—while the latter deprive their victim of nothing—nothing material, at least. It is hard to see, on this basis, why rape, another offense which leaves its victim apparently deprived of nothing, should be taken very seriously. We have long since learned, however, to see the rape victim as someone who has suffered a serious wrong; we think that her dignity and autonomy are important, and that the rapist, even if he has done her no other harm than to diminish them, has committed a felony.

Just so the plagiarist damages his victim; deprives her of credit for her work and of the gains in reputation that she would have made if she were recognized as the rightful author—in general, deprives her of the fruits of her labor. I do not mean to suggest that the injury she suffers is as great as that suffered by the rape victim, or that plagiarism should be made a felony; I suggest simply that the two are of the same pattern, as a tiger and a house cat are of the same pattern, though substantially different in magnitude. And if our pet cat claws the furniture, brings in dead birds, and thinks outside the box, we take measures to correct him—nothing like the measures we would take if a tiger were loose in the neighborhood, but measures nevertheless.

Posner (N): Paradise Lost plagiarizes the book of Genesis in the Old Testament. … “My Fair Lady” plagiarized Shaw’s play Pygmalion … Woody Allen’s movie Play It Again, Sam “quotes” a famous scene from Casablanca. … Many of these ‘plagiarisms’ were authorized, and perhaps none was deceptive … But what they show is that copying with variations is an important form of creativity, and this should make us prudent and measured in our condemnations of plagiarism.

Comment: I foresee having a problem here in getting the reader to believe that Posner really said the things in the passage quoted above, and meant them seriously. I can only urge the skeptical reader to turn to Posner’s essay to see if I’ve quoted him out of context or otherwise misrepresented him. And neither in this essay nor in any of his other published writings, most of them polemical and sharp-tongued, is there the slightest sign of humor or teasing. If Posner is pulling legs, he has certainly succeeded in pulling mine.

In this passage Posner simply re-defines plagiarism to mean such things as:

• the construction of a work of art (Paradise Lost) based on material in the public domain (the Jewish Bible, also known as the Old Testament) by a writer (John Milton) who, so far from wanting his readers to remain ignorant of the connection between his work and the earlier material, totally depends on the reader’s recognition of that relationship, and would be horrified and despondent if he thought his readers failed to see it.

• the construction of a work of art (My Fair Lady) on the basis of another one (Shaw’s Pygmalion), with payment of a fee to the earlier author or his estate, and with the fullest public acknowledgement—indeed, with boasting—of that relationship.

• the construction of a scene or passage in some literary or theatrical work (the Casablanca allusion in Play It Again, Sam) that depends for its effect on the audience’s awareness of its relationship to an earlier one, and has no point without it.

If these examples given by Posner of the use by one artist of material originated by another were indeed cases of plagiarism, then plagiarism would not be even the most venial of offenses, it would be one of the crowning glories of human imagination and creativity. But a material element of what we commonly call plagiarism is missing from these examples: the claim, explicit or implicit, by the later artist to be the originator of the material he is adapting or alluding to. If we are to overlook that weakness in Posner’s case, we may also want to overlook the comparable weaknesses in the cases for the propositions that 2+2=5, up is down, and night is day. But let us be fair: Posner does allow, rather handsomely, that “perhaps” no deception was intended. And he does put quote marks around plagiarism in the passage in question, showing that he is at least dimly aware that the examples he has given are simply irrelevant. Why, despite his uneasy suspicion that they were irrelevant, he nonetheless built his whole case on them, is something that I hope Posner will explain to us one day. Until he does, I conjecture that the reason is that lawyers are trained to play whatever cards they hold, however poor, as if they were trumps.

Posner suspects that complaints about plagiarism are not always wholly altruistic and disinterested, saying (N) “But I think the zeal to punish plagiarism reflects less a concern with the real injuries that it occasionally inflicts than with a desire on the part of leaders of professional communities, such as journalists and historians, to enhance their profession’s reputation.” If Posner is right, think of the shame of it! Imagine people so degraded and benighted as to want to protect their profession’s reputation for integrity! And while we are facing brutal truths, we may want to consider that perhaps some oppose murder on no better grounds than that they don’t want to be killed – a thought that calls the whole criminal justice system into question; how can we be sure that any of our laws are not tainted by the ignoble motive of self-protection?

Posner’s defense of plagiarism consists of assembling a list of artistic adaptations, homages, and allusions; calling them examples of plagiarism; and then claiming that these examples show that plagiarism can be pretty wonderful sometimes. Allowed this form of argumentation, I will gladly undertake to prove any proposition you name; even more exciting, I can see myself making a fortune representing clients in appellate proceedings, at least in one appellate court I know of.

1.(www.law.uchicago.edu/news/posner-r-plagiarism.html)

2. (http://www.theatlantic.com/cgi-in/send.cgi?page=http%3A//www.theatlantic.com/issues/2002/04/posner.htm),