The Little Book of Plagiarism by Richard Posner

Pantheon 2007  128 pp.

Copyright © Steven E. Alford


The estimable Richard Posner, a U.S. Seventh Circuit Court of Appeals judge and prolific author, whose legal judgments and books have often led to controversy, has turned his gaze onto an increasingly publicized form of bad behavior, plagiarism.  Brief though his discussion is, it reveals how complex an issue plagiarism can be, not only to define, but to respond to.

Long the bailiwick of students and teachers, the seeming plagiarisms of politician Joseph Biden, historian Doris Kearns Goodwin, and chick-lit author Kaavya Viswanathan—to name only a few—have raised new questions about the offence and what constitutes a proper response.  While Biden lost his bid for the presidency, he’s running again.  Following a spirited defense from her peers, Goodwin, while damaged, continues to write and publish.  Yet, Viswanathan lost her contract, advance, and reputation.  What the heck are these people are doing?

Posner traces the term back to the Roman poet Martial, who used the term plagiarius to mean “someone who either stole someone else’s slave or enslaved a free person.”  The word didn’t acquire its contemporary meaning until the seventeenth century.  As most students learn, however, Shakespeare himself lifted lines, passages, and plots from earlier authors, but was not generally considered to be a plagiarist, given that the concept of original authorship was in its infancy.  As Posner notes, “if [Shakespeare’s work] is plagiarism, we need more plagiarism.”

The common sense definition is “literary theft.”  Posner disagrees.  In an accessible, but often subtle discussion, he compares it to copyright infringement, literary allusion, the signing of paintings by famous painters which are in fact painted by subordinates, and other activities that seem to involve “borrowing” the work of others.  Instead of looking at the act as theft, he emphasizes “reliance, detectability, and the extent of the market for expressive works as keys to defining plagiarism and calibrating the different types of plagiarism by their gravity.”

Posner also scrutinizes the various defenses authors employ when outed by an act of alleged plagiarism.  Perhaps the most entertaining defense is that of cryptomnesia, or unconscious plagiarism, a defense used by Viswanathan for her novel How Opal Mehta Got Kissed, Got Wild, and Got a Life, which had passages clearly lifted from the novels of Megan McCafferty.  In Posner’s analysis, Viswanathan argued that she had “a photographic memory that forgets the act of photographing.”

The internet, while making it easier for students to plagiarize (they avoid that pesky and time-consuming trip to an actual library), also increases the ease with which teachers can detect plagiarism.  Posner discusses, a national, commercial online software program for plagiarism detection.  Although he overstates its power (it doesn’t contain “a complete and continuously updated copy of the World Wide Web”), it is a powerful tool, and the mere awareness of it has no doubt reduced the number of instances of plagiarism on college campuses. 

Posner believes that tools such as turnitin may make plagiarism a thing of the past at schools and universities.  Maybe so, but so long as some of our fellow creatures are lazy, avaricious, and ambitious, society will continue to endure what Posner brands as “intellectual fraud.”  Posner’s will not be the last book to detail this unfortunate form of concealment, but his brief and careful parsing of the term’s meaning adds a good deal to our understanding of it.