It was the best of times. It was the worst of times. And lest you think me a little Dickens for stealing a famous line as my own, please know that judge Richard A. Posner thinks characterizing plagiarism as "literary theft" is just plain misguided.
Posner is a judge on the US Seventh Circuit Course of Appeals and a professor at the University of Chicago Law school. His meditation, "The Little Book of Plagiarism" ($10.95 in hardcover from Pantheon), reaches a pragmatic conclusion. Defining plagiarism as "literary theft," he writes, is "inaccurate; we'll see that there can be plagiarism without theft. And it is imprecise, because it is unclear what should count as 'theft' when one is not taking anything away from someone but simply making a copy. When you 'steal' a passage from a book, the author and his readers still have the book, unlike when you steal his car."
Wait a minute. Plagiarism without theft? Well, consider certain popular textbooks. In some cases the "authors" named on the cover aren't even alive; others have worked behind the scenes updating the book and consenting to having someone's else's name applied to their output. Who is harmed? Not the public, really, but other textbook authors who have to compete against "big names" long dead. But because we're all in on the game maybe this isn't plagiarism after all.
Posner says plagiarism shouldn't be "a crime or a tort" but "the kind of wrongdoing best left to informal, private sanctions" including "ostracism, ridicule, and cancellation of contracts." While it's easy to "copy and paste" from the Internet, services such as Turnitin.com also make it easier to detect plagiarism and so the incentive goes down. Those who plagiarize out of sheer audacity wouldn't be deterred by criminal sanctions anyway.
Posner opts to define plagiarism as "fraudulent copying" in which the notion of fraud is heavily dependent on what he calls "reliance." "By this I mean that the reader does something because he thinks the plagiarizing work original that he would not have done had he known the truth. . . . If he's a teacher he gives a bad student a good grade" and that may harm other students by altering the grading curve.
I couldn't have said it better myself.