Plagiarism's Defenses

Jack Shafer of Slate magazine has been on a campaign against plagiarists for a long time -- and a good campaign it is, too. I don't like plagiarists, either. I once nailed a GW student for outrageous plagiarism in our school newspaper (he had copied his entire column from a website).

But I think Shafer goes a little too far in his recent derisive analysis of plagiarists' excuses. Shafer provides a list of excuses and explanations that plagiarists commonly give -- that they lifted only a little, that the material lifted was so bland and boilerplate that it doesn't count, and so on.

Shafer is right that plagiarists typically come out with the same tired excuses every time. But where I think he goes too far is that Shafer seems to believe that plagiarism is what the law would call a "strict liability" offense, whereas I would say that, like most offenses, plagiarism has an actus reus (bad act) and a mens rea (required mental state).

Thus, excuse 7 on Shafer's list is "He didn't really plagiarize because the lifting wasn't intentional." Shafer seems to think that this excuse, even if proved, wouldn't constitute a defense (he describes his excuse list as "evasions" that "allow the plagiarist to displace the key question of whether his copy was adequately sourced with the more delectable conversation about the plagiarist's mental state").

I think it would. Suppose it really happened (as many plagiarists claim) that a writer accidentally got confused about who had written a sentence and included in his finished work a sentence lifted from somebody else (because, for example, he kept his research notes and his original work in the same file). That's bad, negligent work, but in the law we usually distinguish between negligent and intentional wrongdoing. If you got confused and accidently took someone else's physical property, believing it to be your own, you'd have to give it back, but you wouldn't have committed the crime of theft. A similar rule should apply to literary property.

One might argue that every writer has an absolute duty to avoid copying and that any violation of this duty is plagiarism, no matter how unintentional. But I would say that goes too far. We should distinguish between intentional and unintentional copying.

Therefore, I would say several other excuses on Shafer's lists aren't as irrelevant as he thinks either. They go to the credibility of the claim that copying was unintentional. If the text copied was bland and boilerplate, if the writer was working late, if the writer lifted only a little, all of these things are relevant to the likelihood that the copying was really unintentional.

So I wouldn't dismiss the excuses on Shafer's list as quickly as he does. In my view, the problem with some of these excuses is not that they wouldn't, even if proved, constitute real defenses, but that they are so often utterly implausible. A plagiarist says, "sorry, I kept my research notes and my own writing in the same file and I got confused about which was which," but the amount copied is so great that it's not remotely plausible that it happened by accident. The plagiarist is just lying. In my experience, the amount copied is usually a good guide to plausibility (and searching the accused's other writing can help, because most plagiarists are serial offenders).

If you drive negligently and kill someone, that's obviously a bad thing, but it's not nearly as bad as if you deliberately run someone down with your car. One is murder, the other not. Mental state matters.

I know it makes plagiarism cases messier if you have to worry about the accused's mental state. It would be simpler if we could just compare the texts, decide if too much was copied, and be done. But that's true in the law too. It would be simpler if we could just decide whether the defendant killed someone and not listen to his explanation of how it happened by accident. But justice demands that we distinguish negligent from intentional misbehavior.