Remember that one kid in school who would always copy this research paper word-for-word from the Encyclopedia Britannica (for those of you youngsters out there, Encyclopedia Britannica is like a smaller, hard copy version of Wikipedia)? The kid inevitably ended up getting caught, simply because his paper was “too good.” Well in appears now that an Iowa lawyer has gotten his own hand caught in the plagiarism cookie jar.
According to U.S. Bankruptcy Judge Paul J. Kilburg, West Des Moines Peter Cannon “violated the Iowa Rules of Professional Conduct by plagiarizing material for briefs and by unreasonably billing his client for preparation of those briefs.” According to the court:
Seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article. Mr. Cannon added some introductory material, a one-page section titled “Argument,” and a conclusion. In between the introduction and argument, most of the first twenty pages of the Article are reproduced verbatim. The twenty pages Mr. Cannon reproduced appear as they did in the Article, with slight variations in formatting of the type that result when material is copied from one electronic document into another.
Judge Kilburg went on to find:
It is a violation of the Iowa Rules of Professional Conduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Iowa Rules of Prof’l Conduct R. 32:8.4. Plagiarism, which is “[t]he deliberate and knowing presentation of another person’s original ideas or creative expressions as one’s own,” Black’s Law Dictionary (8th ed. 2004), is a form of misrepresentation. Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Lane, 642 N.W.2d 296, 300 (2002); accord In re Lamberis, 443 N.E.2d 549 (Ill. 1982) (finding plagiarism constitutes deceit under Illinois Code of Professional Responsibility); cf. United States v. Jackson, 64 F.3d 1213, 1219 n.2 (8th Cir. 1995) (disapproving of a brief that “directly track[ed]” a circuit court opinion which the attorney did not cite). Because attorney plagiarism violates the Iowa Rules of Professional Conduct, Lane, 642 N.W.2d at 299, an attorney who plagiarizes engages in misconduct under the local federal rules. S.D. Iowa LR83.2(g)(1).
Mr. Cannon’s actions not only constituted plagiarism, but likely constituted copyright infringement as well. Copyright is illegal, plagiarism, generally, is not. As noted above, plagiarism is presenting someone else’s work as your own. Copyright is the author’s right to reproduce an original work of authorship. Historically, plagiarism has been enforced by schools and academics, while copyright was enforced by courts. While copying seventeen pages of verbatim excerpts of an article and publishing the copy as your own, would be both plagiarism and copyright infringement, the two do not always overlap.
For instance, if you copied the Bible and presented it as your own, that would be plagiarism, since it involves claiming credit for something you did not do. This might get you kicked out of school, but would not constitute illegal copyright infringement. There was never any copyright in the Bible. Conversely, incorporating large, properly cited, excerpts from The Da Vinci Code in your own novel, would likely not constitute plagiarism, but would be copyright infringement. You are not claiming the work as your own, but the act could still constitute copyright infringement, since you are reproducing the copyrighted work without permission.
Plagiarism and copyright infringement both, however, require proof of access. The similarity between the original and accused books often circumstantially proves the second author had access to the work of the first. If you could though, prove that you had been trapped in a cave for the last ten years, with no access to the outside world, and that you coincidentally came up with Gone With the Wind, word for word, you could, ostensibly get your own copyright on the book and sell copies. This would not constitute either plagiarism or copyright infringement.
The problem with applying strict plagiarism rules to lawyers gives rise to the same problems that appear when applying strict plagiarism rules to the general public. Society is built upon the premise that everyone builds upon other people’s ideas. Our founding fathers chose wisely not to impinge upon that right. While the framers of the constitution granted to authors the right to protect the “expression” of their ideas, the framers wisely determined that ideas themselves are not, and should never be, the proprietary right of any person or entity. If you are an academic and are paid to publish original ideas, it is perfectly fine for your employer to require that you prove that the original ideas you are paid to publish are indeed your own. Your employer is free to fire you if you are misleading as to the originality of your work. Of course, at least in Iowa, your employer is also allowed to enforce a “no blue shoes” policy and fire you if you fail to comply with that policy as well.
When it comes to the law, however, the academic justifications fall by the wayside, just as our founding father’s intended. Law is based upon ideas and principles, things owned by no one. As far back as 1880, the United States Supreme Court, in Baker v, Selden, expressed the idea/expression dichotomy:
The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.
Of course, these observations are not intended to apply to ornamental designs, or pictorial illustrations addressed to the taste. Of these it may be said, that their form is their essence, and their object, the production of pleasure in their contemplation. This is their final end. They are as much the product of genius and the result of composition, as are the lines of the poet or the historian’s periods. On the other hand, the teachings of science and the rules and methods of useful art have their final end in application and use; and this application and use are what the public derive from the publication of a book which teaches them. But as embodied and taught in a literary composition or book, their essence consists only in their statement. This alone is what is secured by the copyright. The use by another of the same methods of statement, whether in words or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of the copyright.
Is not the practice of law a “useful art”? Just as mathematical and scientific “ideas” are not protected by copyright, neither are legal ideas. For the reasons noted above by the United States Supreme Court, legal ideas should not be unduly restrained by misapplications of the academic concept of plagiarism. What Mr. Cannon did was wrong, but not because he used another’s ideas. It is wrong because he used their exact words, their artistic “expression” of those ideas. The court, however, went beyond this concept, stating:
Mr. Cannon does not admit to plagiarism in respect to the post-hearing brief because he copied citations, and not text, from the Article. It is his position that the copying of string citations is not plagiarism. However, at least one court has found that reproducing material consisting primarily of citations is in fact plagiarism. See Frith v. State, 325 N.E.2d 186, 188 (Ind. 1975) (attorney who reproduced more than ten pages of an American Law Report in his brief committed plagiarism). Citations, particularly string citations with parenthetical explanations, can contain original expressions and ideas in the same way that text can. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 761 (1997) (Souter, J., concurring) (collecting case citations and commenting on what the “parentheticals here suggest”); Klinedinst v. Swift Invs., Inc., 260 F.3d 1251, 1256 (11th Cir. 2001) (“The cumulative effect of these citations is persuasive. . . .”). The particular citations appropriated by Mr. Cannon list dozens of cases, and provide a quote or synopsis for each case that explains its relevance to the authors’ argument. By passing off these citations as his own, Mr. Cannon plagiarized Schrag and Haut’s ideas and expressions just as surely as if he had copied an equivalent amount of text.
Failing to properly cite the source of a case parenthetical in your brief? Following this logic, would it be plagiarism to include a parenthetical included by a court in a holding without citing the case from which the parenthetical was taken? Would it be unethical to refer to the idea/expression dichotomy in a brief without giving credit to the original author of that idea? Would it be unethical to discuss free speech without properly attributing the original architects of that idea? These hypotheticals may seem absurd, but are they not merely logical extensions of the tenets underlying the case against Mr. Cannon?
Copying seventeen pages of an article verbatim into a brief without attribution is wrong. Referring to the idea of free speech within a brief, attribution or not, cannot be wrong. Where we draw the line between these two extremes involves considerations or great import. Not the least of these considerations is unfettering ideas for all lawyers to find justice for their clients. Until that line is defined, however, wise lawyers would be well advised to avoid any ambiguity in one’s briefs – to avoid being hoisted thereon.