76 Pages Posted: 20 Jun 2002
As the recent controversies surrounding alleged unattributed copying by historians Stephen Ambrose and Doris Kearns Goodwin illustrate, plagiarism is a concept that evokes both strong emotions and genuine puzzlement. Because it is not, strictly speaking, a legal concept, plagiarism has mostly been ignored by legal commentators. Yet there is much that legal theory can contribute to its understanding. This article seeks to use criminal law concepts such as intent, willful ignorance, consent, harm, and the distinction between mistake of law and mistake of fact, to elucidate the meaning of plagiarism; and the idea of plagiarism to explore the outer limits of theft law (particularly as it relates to the misappropriation of various forms of intangible property, such as computer software).
Among the issues dealt with are the following: Why are some acts of plagiarism regarded as a serious moral transgression while others a mere faux pas? Is unattributed copying that is inadvertent still plagiarism? Is it plagiarism to employ a ghostwriter or copy one's own work without attribution? What exactly is it that the plagiarist steals, and is this the sort of thing that the law of theft is meant to protect?
This discussion leads, in turn, to a consideration of the increasing criminalization of intellectual property law and the widening gap between what the law is and what people think it should be. While powerful social norms prevent most people from even thinking of, say, walking into a bookstore and stealing a book, many people have no qualms at all about downloading pirated music or software from the Internet. Unlike legislation that makes theft of other kinds of property a crime, legislation that makes it a crime to misappropriate various forms of intellectual property seems to lack the firm foundation of social norms that such legislation generally needs to be effective. Such legislation thereby presents a kind of paradox: Whereas the mostly non-legalized rule against plagiarism is regarded, at least within the relevant communities, as having something very much like the force of law (hence, the repeated reference to plagiarism as theft, larceny, stealing, and so forth), many intellectual property laws (which, after all, are law) are regarded as illegitimate and non-binding. The article seeks to explore some of the implications of this apparent paradox.
JEL Classification: K14
Suggested Citation: Suggested Citation
Green, Stuart P., Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights. Hastings Law Journal, Vol. 54, No. 1, 2002. Available at SSRN: https://ssrn.com/abstract=315562 or http://dx.doi.org/10.2139/ssrn.315562
By Mark Lemley
By Rosa Brooks
By Susan Koniak