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Against Monopoly

defending the right to innovate

Plagiarism

Monopoly corrupts. Absolute monopoly corrupts absolutely.





Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.


Do we need a law?

In the dimension of copyright, the issue of plagiarism often comes up. There is a common misunderstanding that there is a connection between copyright or plagiarism. Plagiarism is not generally a violation of copyright law - although in some cases where extensive copying takes place it may be. Rather it is a failure of attribution. Basically plagiarism is not illegal - but it is heavily punished through contract law. It is a good example of "why we don't need a law for that" contrary the oft expressed opinion if something is bad we need a law against it.

The key point is that if we got rid of copyright the existing penalties for plagiarism would continue unchanged. The recent story of the economist Brian Swart is a case in point. It involves Theoretical Economics a journal which I helped to found, and my friend and colleague Martin Osborne who is editor of the journal. The key point is that Swart while violating no law, lost his job and had his PhD rescinded as a consequence of his plagiarism. So be warned: the punishment for plagiarism is severe.

Common Misconceptions about Plagiarism and Patents: A Call for an Independent Inventor Defense

Defenders of patents commonly say they are against innovators' ideas being "stolen" or "plagiarized." This implies that patents simply permit an innovator to sue those who copy his idea. This position betrays either disingenuity or ignorance about patent law. Let me explain.

Under copyright law, someone who independently creates an original work similar to another author's original work is not liable for copyright infringement, since the independent creation is not a reproduction of the other author's work. Thus, for example, a copyright defendant can try to show he never had access to the other's work, as a defense. The reason for this is that the fundamental copyright is, well, a right to copy one's original creative work. By the nature of creative works that are subject to copyright, it is very unlikely someone would independently create the same novel, say, or painting, as another author. (And if copyright only protected literal copying, it would be much less a problem; but unfortunately it protects a bundle of rights including also the right to make "derivative works".) But, in the rare case where author 2 independently creates a work very similar to that of author 1, it is not an infringement of author 1's copyright, since author 2 did not copy anything.

Patent law is different. Very different. Most defenders of IP do not seem to be aware of this difference--one reason they should not be opining in favor of legal regimes they know little about. When patent defenders say that patent abolitionists are in favor of plagiarism and idea theft, they imply that patent law is like copyright law--that it simply prevents people from copying others' ideas.

Not so. To prove copyright infringement you have to show an actual copying of the work. But to prove patent infringement, the patentee need only prove that the accused infringer makes, uses, sells, or offers to sell, or imports the patented invention--that is, a device or method that is described in at least one of the "claims" of the patent. It doesn't matter if the infringer invented it independently. It doesn't even matter if the infringer invented it before the patentee. Got that? Someone who previously invented the same thing and is using the idea in secret can actually be liable for infringing the patent granted to the second inventor. If a later person independently invents the same idea that was previously patented by another, this is also no defense. Prior use or independent invention are not a defense.

Obviously, it should be. The Intellectual Property and Communications Omnibus Reform Act of 1999 did add a limited first inventor (prior user) defense for prior commercial users of "business methods"--see 35 U.S.C. 273--but not a general one. Justice obviously requires that, at the very least, a general independent inventor defense be added to the patent system. To blunt its sharp, unjust edges. In particular, a defense should be provided for those who are prior users of, or who independently invent, an invention patented by someone else. This would greatly reduce the cost of the patent system since one difficulty faced by companies is that they do not know what patents they might infringe. If someone learns of an invention from another's patent, at least they are aware of the risk and can possibly approach the patentee for a license. But quite often a company independently comes up with various designs and processes while developing a product, which designs and processes had been previously patented by someone else. If the goal of patent law is to reward invention, it should be sufficient to permit patentees to sue people who actually learned of the idea from the patent just as copyright infringement exists when someone reproduced another's work but not when it is independently created. A broad prior user right defense should be established, as well as an independent inventor defense that even a later inventor could use. (Pending patent reform legislation originally proposed to broaden the existing prior user defense by eliminating the business method patent limitation so that users of all types of inventions would have been able to use the defense, but this was removed from later versions of the bill. The Council on Foreign Relations study, "Reforming the U.S. Patent System: Getting the Incentives Right," recommends a prior-user right be adopted; James Bessen & Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (Princeton University Press, 2008), recommend an independent inventor defense--see the Introduction.)

Even pro-IP libertarians usually reluctantly agree that independent invention should be a defense, once you dispel their ignorance about the system they for some reason support (well, the reason is not that hard to see--it's lingering state-indoctrination, or some form of statism such as minarchism, or some unprincipled, incoherent grounds like utilitarianism). This is one of the aspects of arguing IP policy that infuriates me. Whenever you point one of these things out to a libertarian defender of IP, he will usually say, "well, I don't support that." So you say, "well, what do you support?" The answer is basically, "Hey, I'm not a patent lawyer; that's just a detail." I.e., they are in favor of some ideal patent system; not the current, statist one (though they oppose abolishing it or weaking it!), but a "libertarian" one (as if one could imagine a patent system concocted by decentralized courts without legislative power! [on this see my Legislation and the Discovery of Law in a Free Society]). In other words, they don't know what in the heck they are even talking about. They can't describe the system they favor, and are not willing to abandon a statist system they admit is unjust.

And they seem blithely unaware that removing the obvious, "problematic" features of patent law would largely gut it, resulting in an emaciated, weak patent system--a change that would be attacked by mainstream IP advocates as "harming innovation," in the same way that these libertarian patenteers criticize us patent abolitionists. Libertarian IP advocates are schizophrenic. They shy away from the obvious injustices of patent law, and would favor reforms that most normal IP proponents would recoil in horror from; while they try to maintain the facade that they support IP because they support innovation and inventors' "rights", even though they cannot tell you what their ideal libertarian patent system even looks like.

Don't believe me that providing an (obviously just) "independent inventor" defense would gut the patent system? I've been practicing patent law since 1993. I have lost count of the number of times I've been called upon by a client to analyze a patent that has come to the client's attention, that concerns it. What typically happens is this. Company A is producing or developing a product. They hear a rumour from a customer "Hey, I think that Company B has a patent on something similar to this." Or, they get a letter from Company B saying, "Hi, we attach a copy of our latest patent for your interest! If you want to discuss licensing, give us a call! declaratory judgment action against us, please! We wouldn't want to give you cause to sue us first, robbing us of the chance to choose the venue! Love, Company B". So Company A calls me, says, "can you take a look at this patent? Are we in trouble? Are we infringing? Is the patent valid? If so, can we change our design to get around it? We'll be happy to pay your $30k fee for an analysis and opinion." Such a productive use of precious capital!

Now, what I want to emphasize here is that: in all the umpteen times I've done this over the last 15 or so years, I have never, ever, even once, seen a case where the client's engineers copied the patented invention. In every case that I can recall, the company designed its product on its own--using available technology, to meet the market demands--and then only later were made aware of some patent buried among millions in the bowels of the patent office. Then they panic, worrying that they might be shut down by an injunction by a competitor, or sued into the ground (for examples see my Radical Patent Reform Is Not on the Way).

No doubt in some cases there is copying. An entrepreneur espies a popular product, and makes a similar one; lo and behold, it turns out there were some patents, and so he is sued. Still unjust--what is wrong with emulation, competition, and learning?!--but still, sure, in some cases, there is copying. But there can be no doubt that millions and millions of dollars are lost on attorneys' fees alone, not to mention the cost of changing designs to avoid infringement, or foregoing development in a field crowded with patents or rife with uncertainty, in cases where the victim was not copying or even learning anything from the company that just happens to hold a red-ribbon adorned manilla certificate issued by a technocratic bureaucracy of the criminal central state. Add an independent inventor defense, and a lot of the work done by lawyers like me would dry up--meaning a more efficient economy, lower priced goods, more competition and innovation, more innovative freedom, more breathing room.

This is a type of reform that most libertarian patent advocates, in my experience, begrudgingly agree to. And it would gut the patent system. The caterwauling of the patent bar, deprived of half their federal law-sponsored teats, would reach a deafening crescendo. Large companies that rely on the inchoate threat of patent lawsuits to squelch competition and keep small innovators down, would increase their bribes to DC, fearful of barriers to entry falling.

So why not come all the way with us, my fellow libertarians? You see the injustices of the patent system, and usually agree with our concrete criticisms of them. You are not sure of what a good patent system would even look like. The current one is undeniably a mess. And it's just an arbitrary fake-law scheme enacted by an obviously incompetent, evil, illegitimate, and criminal state. Why in the world would a libertarian support this? Besides, by advocating such reforms you are going to be lumped in with us "enemies of innovation" by the vested IP interests. So if you are doing the time, you might as well do the crime.

Update: See Mike Masnick's excellent posts, Calling For An Independent Invention Defense In Patents and If Patents Are Supposed To Support The Independent Inventor, Why Isn't There An Independent Invention Defense?, the latter of which mentions a great post by Joe Mullin, Patent defendants aren't copycats. So who's the real inventor here?

[Mises blog cross-post; SK cross-post]

Cory Doctorow on Giving Away Free E-Books and the Morality of

Insightful and interesting comments by Cory Doctorow (and surprisingly sound, given that Doctorow unfortunately favors socialized medicine (see this Free Talk Live interview):

Why do you give away your books? Giving away ebooks gives me artistic, moral and commercial satisfaction. The commercial question is the one that comes up most often: how can you give away free ebooks and still make money?

For me for pretty much every writer the big problem isn't piracy, it's obscurity (thanks to Tim O'Reilly for this great aphorism). Of all the people who failed to buy this book today, the majority did so because they never heard of it, not because someone gave them a free copy. Mega-hit best-sellers in science fiction sell half a million copies in a world where 175,000 attend the San Diego Comic Con alone, you've got to figure that most of the people who "like science fiction" (and related geeky stuff like comics, games, Linux, and so on) just don't really buy books. I'm more interested in getting more of that wider audience into the tent than making sure that everyone who's in the tent bought a ticket to be there.

Ebooks are verbs, not nouns. You copy them, it's in their nature. And many of those copies have a destination, a person they're intended for, a hand-wrought transfer from one person to another, embodying a personal recommendation between two people who trust each other enough to share bits. That's the kind of thing that authors (should) dream of, the proverbial sealing of the deal. By making my books available for free pass-along, I make it easy for people who love them to help other people love them.

What's more, I don't see ebooks as substitute for paper books for most people. It's not that the screens aren't good enough, either: if you're anything like me, you already spend every hour you can get in front of the screen, reading text. But the more computer-literate you are, the less likely you are to be reading long-form works on those screens that's because computer-literate people do more things with their computers. We run IM and email and we use the browser in a million diverse ways. We have games running in the background, and endless opportunities to tinker with our music libraries. The more you do with your computer, the more likely it is that you'll be interrupted after five to seven minutes to do something else. That makes the computer extremely poorly suited to reading long-form works off of, unless you have the iron self-discipline of a monk.

The good news (for writers) is that this means that ebooks on computers are more likely to be an enticement to buy the printed book (which is, after all, cheap, easily had, and easy to use) than a substitute for it. You can probably read just enough of the book off the screen to realize you want to be reading it on paper.

So ebooks sell print books. Every writer I've heard of who's tried giving away ebooks to promote paper books has come back to do it again. That's the commercial case for doing free ebooks.

Now, onto the artistic case. It's the twenty-first century. Copying stuff is never, ever going to get any harder than it is today (or if it does, it'll be because civilization has collapsed, at which point we'll have other problems). Hard drives aren't going to get bulkier, more expensive, or less capacious. Networks won't get slower or harder to access. If you're not making art with the intention of having it copied, you're not really making art for the twenty-first century. There's something charming about making work you don't want to be copied, in the same way that it's nice to go to a Pioneer Village and see the olde-timey blacksmith shoeing a horse at his traditional forge. But it's hardly, you know, contemporary. I'm a science fiction writer. It's my job to write about the future (on a good day) or at least the present. Art that's not supposed to be copied is from the past.

Finally, let's look at the moral case. Copying stuff is natural. It's how we learn (copying our parents and the people around us). My first story, written when I was six, was an excited re-telling of Star Wars, which I'd just seen in the theater. Now that the Internet the world's most efficient copying machine is pretty much everywhere, our copying instinct is just going to play out more and more. There's no way I can stop my readers, and if I tried, I'd be a hypocrite: when I was 17, I was making mix-tapes, photocopying stories, and generally copying in every way I could imagine. If the Internet had been around then, I'd have been using it to copy as much as I possibly could.

There's no way to stop it, and the people who try end up doing more harm than piracy ever did. The record industry's ridiculous holy war against file-sharers (more than 20,000 music fans sued and counting!) exemplifies the absurdity of trying to get the food-coloring out of the swimming pool. If the choice is between allowing copying or being a frothing bully lashing out at anything he can reach, I choose the former.

A Copyright Firewall Against Anti-plagiarism Efforts?

I'm all against plagiarism. But can there be institutional overreach in trying to guard against it? Can anti-plagiarism efforts create more problems than the underlying offense? I haven't really thought about the issue much. I'm just throwing it out there.

What is interesting, however, is that some students are pressing the issue with a copyright lawsuit.

On Plagiarism, plagiaristicly speaking

Mike at Techdirt (link here) points us to Jonathan Lethem's piece in Harpers (link here) which is both an extended discussion of copyright and the abuses it is now suffering, and a poetic evocation of language and imaginative ideas which have come to us through the ages and still inspire literature, ultimately questioning the definition of plagiarism. To make his point, he pulls the reader's leg by making the whole piece up from bits and pieces from other writers and then puts the sources for all of them in an extended set of footnotes, making his point that all of us depend on the work of others and that the current practice of sharply limiting access is a crime against society and human progress.

Plagiarism Today

Who would have thought there was a website called "Plagiarism Today"? Or that they wouldn't have a clue about what plagiarism is? As you might have thought, Merriam-Webster defines plagiarize as
transitive senses : to steal and pass off (the ideas or words of another) as one's own : use (another's production) without crediting the source

intransitive senses : to commit literary theft : present as new and original an idea or product derived from an existing source

The point being of course that plagiarism is about attribution. But not according to "Plagiarism Today." They believe that blogs are the new plagiarists because they
are marked with large swaths of block quotes and heavy content reuse, but also proper attribution and at least some original content.
The post then goes on to talk about fair use, as if that had some connection to plagiarism. Is it too much to ask that a website specializing in plagiarism know the difference between plagiarism and copyright violation? (HT: Slashdot)

Addendum: Jonathan Bailey, the author of the post in question, replies to my post in the comment section. As he says, the plagiarism wording was taken from several articles on the subject. The thrust of his article was really about copyright and fair use, not about plagiarism - and he doesn't talk about plagiarism in his own comments, just uses it as a hook. So in fairness to him I'll direct the comments above at the articles he links to and not at his post.

Commenting on his post: I think aggregating other people's work with attribution is a good thing. In the case of this blog, if you read the copyright stuff on the right, you have the legal right to quote as much of this stuff as you want, and I think that the general view among bloggers is that being quoted a lot is good publicity. On the creativity side, organizing things is often as valuable as creating the components that are being organized. I would love to live in a world without copyright where we would all quote each other and build on each others work without involving lawyers.

All Is Not Crazy

On the trademark front the legal system seems to have a degree of rationality. According to the AP an English Judge ruled against a claim by the Beatles and in favor of Apple computer: Apple computer can continue to use the apple logo in connection with iTunes.

Plagiarism, Trademark and Identity Theft

I've often had the experience after presenting a paper arguing that copyright doesn't work, that someone asks "So you don't mind if I take your name off this paper, and put my name on it and redistribute it, right?" Although intended as a joke, it isn't really funny, because it demonstrates a lack of understanding of what the paper is about. Suppose I download a piece of music that I didn't previously have. Ignoring the future consequences regarding music production - it is certain that from a social point of view what I did made society better off. It made me better off - I have access to music I didn't have before - and nobody is worse off. They copyright holder might not be able to sell me music in the future - but that is just a transfer payment from me to him - it has no social consequence.

Contrast this to identity theft. I make a copy of your identity - that is, I masquerade as you. This equally certainly makes society worse off. The essence of identity is that it must be unique. If multiple people hold the same identity, then the identity loses its social value. This is why trademark is different than copyright. Copyright prevents the socially desirable use of creations; trademark prevents the socially undesirable theft of identities - it preserves the right to know who you are doing business with.

How does plagiarism fit into this? Plagiarism is the theft of identity. When you take my name off the paper and claim you wrote it, this is identity theft - you are claiming to be me. It serves no socially useful purpose, and indeed has bad social consequences. So while I am against copyright, I am for trademark, against identity theft, and against plagiarism.


   
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