The Supreme Court has made the decision (still subject to reconsideration) that indeed there was copying and that there was no perfect and meticulous attribution to the author of copied materials. But the Court concluded that there was no reprehensible act. Why? “On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action.”
Was the Court saying something new when it said, in the context of the plagiarism case, that only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action? In support of this statement the Court cited two earlier decisions involving lower court judges. Neither of them, however, was about plagiarism.
However, should intention be central to plagiarism? In a collection of essays entitled Copyright and Piracy: an Interdisciplinary Critique, (Cambridge University Press), an article entitled “Inspiration or infringement: the plagiarist in court,” the author makes this comparison between infringement of copyright and plagiarism: “. . . the question of intention is irrelevant to a charge of copyright infringement, but its role in relation to plagiarism is less clear. Copyright infringement, in its civil form, is a strict liability offense. . . . . In the case of plagiarism, by contrast, Randall asserts, ‘Identifying plagiarism entails ascribing to an agent a series of guilty or fraudulent intentions, the necessity to show intent, in order to establish guilt, or at least degrees of it, is by far the most important of all criteria for establishing plagiarism.’ Intention is relevant not just in the sense that the copying is deliberate, but also in terms of a further intention, sometimes referred to in criminal law as an ulterior intent, to claim the credit by passing the work as one’s own.”
But is intent always required? The author goes on to add: “While some institutional statements explicitly includes unintentional copying and non-attribution within their definition of plagiarism, the centrality of the element of deceit or bad faith suggests that, at least outside the academic sphere (where, as Groom observes, the concern is really with cheating rather than plagiarism in its literary or artistic context) intention should be key to a charge of plagiarism.”
Outside the academic sphere! This perhaps should assuage the fear of those in the academic world that the Supreme Court’s definition of plagiarism in the case might be extended to the academe. As one Federal court decision put it: “Please note that, while not all academic infractions involve fraud, all are violations of the University's standards and will normally result in disciplinary penalties.”
I might also add another quotation from the article I cited above. “In her book Pragmatic Plagiarism, Marilyn Randall identifies plagiarism as a pragmatic, rather than a textual category, meaning it is principally determined by a wide-variety of extra-textual criteria that constitute the aesthetic., institutional and cultural contexts of production and reception of the work.”
For this reason, it seems to me that it should be no surprise if scholastic plagiarism should be treated differently from judicial plagiarism.
Where then does this leave us as far as the Supreme Court case is concerned? What will the final outcome be?
First, I do not think that the Court will change its mind about the centrality of intention in judicial plagiarism.
However, I would not be surprised, but would be pleased, should the Supreme Court clearly state that what has been said about judicial plagiarism is not meant to apply to the academic sphere. This hopefully would assuage the concern of people in the academe. They can continue to penalize both intentional and unintentional plagiarism.
Second, I do not see how the Court can avoid saying that there was copying both of “ideas” and of “expression.” The evidence of borrowing is just too obvious.
Third, will the Court maintain its original position that in the case of Justice del Castillo, copying notwithstanding, there was no malicious intent? As the Court already said, “The passing off of the work of another as one’s own is thus an indispensable element of plagiarism.” Was this indispensable element present in what the Justice did?
The pleadings of both parties in this case will be making meticulous inquiry into whether the failure to make attribution or full attribution, (detailed in Justice Sereno’s dissent) or the manner or circumstances of the failure of attribution (described in the Per curiam opinion), amounted or not to intent to pass off what was copied as one’s own. I will await the Court’s final judgment.
22 November 2010