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How To Curb the Plagiarism Epidemic(Or, how Alice Mayhew gets her groove back.)

By Timothy Noah
Posted Monday, Jan. 28, 2002, at 4:45 PM ET

Alice Mayhew of Simon & Schuster is Stephen Ambrose's editor. She was also Doris Kearns Goodwin's editor for The Fitzgeralds and the Kennedys. Mayhew has a matchless reputation as an editor of journalistic and pop-historical trade nonfiction, and right now she's probably wondering how best to keep it, given that five of Ambrose's books and Goodwin's Kennedy book have all been shown to contain plagiarized material. (Ambrose and Goodwin have both denied that what they did constituted plagiarism, because it was inadvertent, and because the stolen material was cited in footnotes. But in an earlier item, Chatterbox demonstrated that either instance would be considered plagiarism--and dealt with quite severely--if the perpetrator were a freshman at Harvard, where Goodwin was previously a professor of government and now serves on the board of directors.)

Obviously Mayhew can't be expected to know whenever one of her writers lifts a passage from someone else (though it's slightly mortifying to learn that in one of these instances, a Mayhew-edited book by Ambrose boosted material from a Mayhew-edited book by journalist Robert Sam Anson). Chatterbox does, however, expect a distinguished editor to come clean once her authors' hands are caught in the cookie jar. Simon & Schuster's initial responses to the Ambrose and Goodwin revelations were shamefully Enron-like. In Ambrose's case, a company spokesman weighed in with a laughably dishonest denial when confronted by Fred Barnes of the Weekly Standard. In Goodwin's case, after Lynne McTaggart alerted Goodwin that she'd stolen passages from her book Kathleen Kennedy: Her Life and Times, a secret settlement was struck that served the interests of every party but the reader. McTaggart received a payment. (How much we're not permitted to know, but McTaggart told the Weekly Standard's Bo Crader, who broke the Goodwin story, that it "was a substantial monetary settlement, many times more than what is usually the case for this kind of thing, according to my lawyer. It wasn't a token sum.") McTaggart also received satisfaction in the form of additional footnotes in Goodwin's book and some language inserted into the preface that praised McTaggart's earlier book. Goodwin was spared the embarrassment of having the public find out about the plagiarism incident (until the Weekly Standard rooted it out years later). Simon & Schuster got to rid itself of McTaggart without having to go through the expense of re-plating Goodwin's book, because the settlement allowed the plagiarized material to remain in the body of the text unaltered. (That Goodwin allowed the plagiarism to stand even after she knew of it is probably her worst offense here.) The reader, meanwhile, was essentially defrauded because he had no way of knowing, even after the post-settlement revisions were made, that portions of the book that were presented as Goodwin's own writing were in fact the work of someone else.

What should Mayhew do now? Chatterbox thinks she could redeem herself by leading an industry-wide anti-plagiarism reform effort on behalf of consumers. In his wise book about plagiarism, Stolen Words, Thomas Mallon points out that "[t]he sanction most feasible and most just is the ironic one: publication. Get the word out on the persistent offender." Some might argue that that has already occurred in both the Ambrose and the Goodwin instances. Indeed, Goodwin just published an apologia in Time magazine. It's maddeningly incomplete. Goodwin gets away with saying she's culpable for "phrases that I had taken verbatim" when in fact Crader demonstrated in his first Weekly Standard piece that the borrowed material consisted of entire sentences, and, in an online follow-up, quoted McTaggart stating that there were also "paragraphs where a few words had been changed." Goodwin's essay is also somewhat annoying for its aggrieved tone ("Ironically, the more intensive and far-reaching a historian's research, the greater the difficulty of citation"). Still, now that Goodwin's story has been reported elsewhere, the shortcomings of her own accounting don't matter so much.

So, why isn't the status quo sufficient? Because there might never have been an accounting at all, given Goodwin's confidential financial settlement with McTaggart (which Goodwin also neglects to mention in her Time essay). These hush-hush resolutions of plagiarism disputes have got to end.

Chatterbox has an idea how to bring that about. What if boilerplate were to be inserted into all future book contracts requiring authors to waive any future financial claims stemming from plagiarism of up to, say, one entire page of their work? That would make it impossible for confidential private settlements to be arrived at, because the wronged party's financial incentive to settle would no longer exist. Your only recourse would be to go public with your complaint. This scheme may sound like punishing the victim. But Chatterbox doesn't really think there's much real-world harm to an author who gets plagiarized by another, partly because the overall financial stakes in book publishing are so small, and partly because, even when a runaway best-seller lifts a few paragraphs from a flop, one can hardly argue that those few paragraphs accounted for the best-seller's success. What Chatterbox does imagine is that it's mostly just annoying to see someone else get away with stealing your work. You'd like to see the thief get shamed, and the best way to achieve that is to go public.

The means for going public could be improved on. Perhaps in exchange for giving up one's right to sue, every author should be given access to some sort of plagiarism board funded by all the book publishers (who, in the aggregate, certainly have an interest in preventing plagiarism). This plagiarism board could adjudicate disputes, discarding the illegitimate ones and publicizing the real violations. If the pleader didn't like the plagiarism board's ruling, he or she could still take his complaint to the press and see how it does there.

How to get publishers to insert the crucial indemnification clause? Moral leadership would help. (That's where you come in, Alice!) Trade book publishing in the U.S. these days is essentially oligarchical. Win over Random House and you're more than halfway there. Organizations that give out big literary prizes, such as the Pulitzer committee, could assist by demanding that all books they consider be plagiarism-indemnified.

Chatterbox ran his idea by Mallon via e-mail. His response:

Litigation is a terribly blunt instrument for solving these issues (I think I'm plagiarizing something I said in the book here). The copyright law was mostly designed to prevent wholesale theft--unauthorized editions and printings, etc.--and is not so good at solving cases of plagiarism, which often involve small quantities of material and artful manipulation.

As for the indemnification scheme, Mallon wrote that it was "an interesting idea," but

I don't think it has much of a practical chance. You should see the reluctance of academic professional organizations to deal with this question. (And they have, at least in theory, a higher ethical stake in the matter.) I doubt very much you're going to see a competitive industry come together to solve the problem.

But Chatterbox thinks it's within Alice Mayhew's powers to prove Mallon wrong.

[Update, Jan. 29: Chatterbox participated in a panel discussion about l'affaire Ambrose-Goodwin on the Jan. 28 PBS News Hour with Jim Lehrer. The other panelists were professors of American history: Eric Foner of Columbia and Jerah Johnson of the University of New Orleans. Click here for a transcript.]

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Notes From The Fray Editor:

There were many interesting posts on this one, from people with considerable expertise in the field. A ghost writer detailed his or her experience here, and Sharon, whom we assume to be the copyright lawyer below, came to give advice. We also enjoyed "Extracting a confession (a short work)" by Mamet Altman (we suspect a pseudonym) here.

Reader Comments From The Fray:

There are a some contract law issues with Chatterbox's idea that might help explain why it probably won't work. The biggest is that these agreements are between the writer and the publisher. However, the writer's plagiarism claim would be against another author/publisher, not necessarily their own publisher. (In the event that both books happened to be published by the same publisher, one could imagine that both legally and practically, enforceability would be a bit easier.)

While a covenant not to sue a third party could still be enforceable, it would be simple to circumvent. For example, assume writer x had this clause in her agreement. Later, she realizes writer y has plagiarized several sentences from her book. Even if her agreement with her publisher not to sue writer y is enforceable, what is to stop writer x from letting writer y know (either directly, or through an intermediary) that she is about to publicly brand writer y a plagiarist? And what is to prevent writer y from voluntarily providing writer x with an incentive, financial or otherwise, not to do so? It is difficult to imagine an air-tight agreement that does not involve writer y that could prevent this sort of thing.

Normally, when one party (A) wants to enter into another agreement with another party (B) for the benefit of the third party (C), the way to make sure that C benefits is to make C an express third party beneficiary of the agreement, thus giving C the right to sue A for A's breach of the agreement between A and B. However, in the situation described here, it would be impossible to name all possible third party beneficiaries (although one could imagine S & S making Stephen Ambrose the beneficiary of such an anti-plagiarism clause in all future agreements re: WWII books). In addition, it isn't exactly the plagiarist who is meant to benefit here, it is the reader. Contract law just isn't set up to handle this sort of thing… Although I am an attorney who specializes in intellectual property transactions (i.e., I write contracts re: copyright law for a living), I'm not entirely confident that there is no way to structure this... This would make a pretty neat law school exam question...

--Sharon

(To find or answer this post, click here.)

(1/29)

As someone who had whole sections of her book plagiarized and began preliminary action for copyright infringement, let me tell you that the first thing the other lawyer told my lawyer was that he would sue for libel if I said anything publicly. I then decided (with lawyer's counsel) not to send out any public pr until papers were filed in court. That way I could write a news article saying that I was officially suing so-and-so for such and such an infraction. Needless to say, after months of haggling and after learning that the case would not come to court for another 4 years, I settled out-of-court (actually pre-court). I signed a paper saying I never sued, nothing ever happened, etc. etc. and cleared all of $5000. Too bad the author I was suing wasn't famous. Actually we didn't even bother suing the author but the publishing house. The one thing I did get was the removal of the offending book off the market. I also contacted two other authors whose works had also been plagiarized in the same book (one of them had been published by the very same house!) and let them know. Talk about sloppy editors. This was a small house. The stolen material was slightly paraphrased but constituted the entire book! I don't know what planet you live on, but [you can't] expect an author to brave threats of libel by aggressive lawyers (who apparently take "Don't Give An Inch 101" at Harvard Law) and pay for the defense of such suits out of her own pocket (because no lawyer is going to take contingency on that one). Most non-fiction books get their sources from the same public domain properties, so it is easy for an offending plagiarist to yell "Fair Use." And of course, there is such a thing as unintentional copying from sources. The publishing houses don't give a damn about plagiarism. Yes, I really did want a public apology as much as I wanted the money, but even my own lawyer asked why did I want to humiliate this publishing house?

--Barbara Hudgins

(To find or answer this post, click here.)

Search engines, comparison engines, and pattern matching software for text is extremely powerful these days. First, the major publishing houses should band together and create a database containing the text of every book that they have published. Then, they must agree to first run any new book draft through a comparison engine indexed on the database to make sure that it doesn't have any surprising similarities to an already published work. Although the initial set up of such a system would be cumbersome and potentially expensive, it seems like it would be in the publishing houses' economic interest in the long run...

In the interest of not committing plagiarism of ideas myself, I must give credit for this basic scheme to the sites www.plagarism.org and www.turnitin.com...

--Xander76

(To find or answer this post, click here.)


I am shocked--shocked!--that renowned academics are publishing others' words as their own. Why, the next thing you know, they'll be using graduate research assistants to do their research and writing for them and failing to give due credit.

--Thomas Brown

(To find or answer this post, click here.)

(1/30)


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