10 November 2006

Plagiarism and Category Mistakes


Two years ago, Malcolm Gladwell wrote an article recounting and reflecting on his experience when Byrony Lavery brazenly borrowed about 675 words, grouped in a dozen places, from a piece he had written about psychiatrist Dorothy Lewis’s work with serial killers.[1] Lavery appropriated much more from Lewis’s writings, and even from incidents in her life, all for her play, Frozen. Gladwell's first reaction was to send a fax to Lavery which concluded “to lift material, without my approval, is theft” (p.41).

He then began to reconsider, and his article describes how he came to a much more nuanced concept of permissible borrowing, at least in the arts. Along the way, he considers journalism, and sums up his thoughts in a sentence that might apply as well to much work in the academy, perhaps particularly at the apprentice level: “The ethics of plagiarism have turned into the narcissism of small differences: because journalism cannot own up to its heavily derivative nature, it must enforce originality at the level of the sentence.” Or as Bill Turkel would say, at the level of the n-gram (“On N-gram Data and Automated Plagiarism Checking;” October 03, 2006).

Gladwell cites Lawrence Lessig’s book, Free Culture (Penguin, 2004), and his argument that, in the debate over what constitutes intellectual property and its misappropriation, we need to recalibrate the boundaries. It’s hard to disagree.

Returning to Bill Turkel’s consideration of these issues, I suggest that what is at issue is the range of permissible values of ‘n’ in n-gram. There can be little debate at either extreme. A 1-gram (‘can I monogram that for you?’) is simply a dictionary headword, and available for unrestricted use. At the other end, appropriating the entire text of another person (an x-gram where x equals the number of grams (words) in the text in question), beyond some trivial length, would still seem to be a transgression; this proposition is easily tested.

Prof Turkel will probably have considerable support for most 5-grams being unobjectionable. (Yet anyone who tried to claim as theirs “Here’s looking at you, kid” would at best face gales of laughter.) But what happens as the value of ‘n’ rises? 15-gram? 25-gram? 55-gram?

Gladwell examines a striking sentence of his (21-gram) that was lifted by Lavery, and in turn repeated by many critics reviewing the play. He acknowledges that he can’t entirely claim the component phrases – 3-grams to 7-grams. But his feelings on her appropriation of the whole 21-gram string remain ambivalent (p.48). In humanistic scholarship we face an ill-defined continuum, and there may be no fixed saddle point. But I would argue the more the value of ‘n’ proceeds into double digits, the more questionable the acceptability of the borrowed phrase becomes.

Our everyday sense of what constitutes permissible borrowing is a cultural construct which has changed over time. In fin-de-siècle London, the wits could joke about it, sometimes with verbal rapiers drawn. Oscar Wilde’s alleged response to a bon mot of James McNeill Whistler: “I wish I had said that.” Whistler’s come back – he knew his man: “Ah, you will, Oscar, you will.” (Cf. the Monty Python send-up.)

Our concept of plagiarism, and the currency of the word itself (cf. the OED or the gated OED online), dates back to the dying years of the seventeenth century, when the ‘Battle of the Books’ pitted the traditionalists’ commitment to the wisdom inherited from the ancients against the modernists’ conviction that new knowledge and indeed intellectual progress was possible and desirable. If, as the Ancients’ camp held, both scholarship and art were basically imitative – mimesis – then copying was complimentary, and there was no meaningful concept of plagiarism (the Latin root means a kidnapper). But the advocates of progress and creativity gained the upper hand, and so needed to protect originality.

It is surely no accident that the word plagiarism becomes more widely used as the eighteenth century progresses, and individual creativity becomes more valued. Nor that the first English copyright act dates to 1709 (8 Ann, c.19; William Hogarth successful advocated for similar protection for engravings in 1735, 8 Geo II, c.13). By the end of the eighteenth century, the emergent romantic movement enthroned the solitary artist and his works, and imitation became a derogatory term.

Today, in some circles, the commitment to shareware and open source materials is naturally congruent with a permissive concept of borrowing.

When, however, one moves into the realm of law, I believe the markers change. To regard legal boilerplate as a type of plagiarism is I think what philosopher Gilbert Ryle called a ‘category mistake’.

Lawyers use the term precedent in two different but related senses. The first is the one more familiar to the layman: a reported court decision whose ratio decidendi is binding on lower courts, and which therefore, affects the daily practice of law. The second sense is a more graceful term for boilerplate: “standard clauses used in legal documents of a particular kind”.[2] As part of her stock in trade, a lawyer develops a wording for, say, a by-law that permits a board of directors to meet by conference call. If the wording does not rest on a court decision, it will still be strongly grounded in applicable law. It may even track (that is, recite or silently quote) statute law, and the lawyer does her utmost to craft a by-law that would survive a court challenge. The lawyer can then use this wording (precedent, boilerplate) in the by-laws of multiple corporate entities.

Such repeated use, I suggest, is not plagiarism; it is adherence to what is believed to be valid in law. In this situation, the last thing one wants is novelty or individuality. One wants to parrot the formula that has, ideally, been annealed in the fire of a reported court decision, or is otherwise believed to be proof against successful legal challenge.

University policies on plagiarism are, I believe, another example. I do not know the full tale, but I recall a few instances in the 1980s where universities were taken to court by students who contested a professor’s accusation of plagiarism, and in some cases, the student either won the court case or forced the university into an expensive settlement. This led to the development of ‘boilerplate’ on plagiarism. Since Ontario universities share a common jurisdiction, it is natural for them to have common or very similar wordings for plagiarism policies.

Law may constitute a distinct category, but it likely has kindred spirits. One for example might be prayers or magical incantations. One doesn’t vary the formulas (the words) because they have proven efficacious. It is a category mistake, I suggest, to think of this repetitious use as plagiarism.


[1] , “Something Borrowed,” The New Yorker LXXX:36 (22 Nov 2004) 40-48; apparently no longer freely available on-line.

[2] Dictionary of Canadian Law, (Toronto: Carswell, 1991).

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