Reviews

Innovation Begets Tradition

Dean C. Rowan

CODE : Collaborative Ownership and the Digital Economy Rishab Aiyer Ghosh, Editor MIT Press, 2005: 384 pages

A range of controversial concepts and practices—collaboration, collective ownership, peer-to-peer, open source, social networking, participation, among others—are frequently broached of late in popular, professional, and academic media. They are related in certain respects—all involve groups of people working together toward shared goals—yet distinct in others—for example, collaborative ownership might entail a distribution of property rights to discrete portions of a work, such as the melody and lyrics of a song, where collective ownership would entail a group’s equal claims to an entire shared work, such as their culture’s unwritten folklore. The concepts are often invoked, as they are in CODE: Collaborative Ownership and the Digital Economy, in discussions of the evolution of intellectual property law since the advent of the World Wide Web and the rapidly emergent variety of digital forms of information and creative work.

These technologies have urged some of their users and consumers—or, as one learns after reading CODE, have simply reminded them—to respect the collaborative nature of many kinds of innovation and creativity. Collaboration, in other words, is not itself an innovative mode of production, a new adaptation to a technological revolution in process, but a longstanding practical approach to making, storing, and communicating information and objects of cultural value. However, the new technologies do prompt us to revisit such an approach, particularly in the face of intensifying commodification of informational and creative works, and the concomitant regulation of these works under an emphatic intellectual property regime. The title of the editor’s introduction to CODE itself alludes to this retrospective view of collaboration: “Why Collaboration Is Important (Again).”

The contributors to CODE are not as one might expect exclusively information scientists, computer scientists, economists, and legal scholars, but also anthropologists, artists, historians, and journalists. Their diversity promises a rich treatment of the topic, and CODE largely delivers on the promise, including chapters on creative practices in Papua New Guinea, intellectual property law in Ghana, intersections of international biopharmaceutical accords and the health resources of developing nations, the kinds of transactions that impel markets, copyright (of course), and other topics that extend the concept of creative expression beyond the “techie” work, such as software, web sites, and gaming, commonly associated with digital technology. (In this respect, the acronymic title of the book is at least a little ironic, even more so since it echoes the title of an influential work by flexible copyright proponent Lawrence Lessig, who penned an oddly vacuous blurb for the present title. Collaboration, indeed.) The book is based on a conference of the same name held at Queen’s College, Cambridge, in 2001, although many of the book’s contributors did not appear at the conference and, conversely, many of the conference presenters did not contribute to the book. Nevertheless, both the conference and the book pursue “the debate on whether collaboration and ownership can co-exist in the digital economy” (conference website).

The collection’s editor, Rishab Aiyer Ghosh, is perhaps most widely known as Managing Editor of the enduring online peer-reviewed journal about all things Internet, First Monday. He has written extensively about information technology from an economic perspective and so it is not surprising that his own contribution and several others articulate positions framed more or less in classic economic terms. But as he points out in his introductory chapter, he has taken an “‘open source’ approach to editing” (5), leaving the contributors to develop arguments in terms consistent with their own areas of expertise. Consequently, for example, ethnomusicologist Anthony Seeger’s spirited contribution urging attention to the neglected cultural works and rights of indigenous peoples abuts economist and historian Paul A. David’s account of the parallel proprietary and open trajectories of early modern scientific scholarship and innovation, and both pieces work to deepen an understanding of how culture, broadly construed, is the product of collective undertakings and not merely an aggregation of individual initiatives that, in the absence of a robust legal regime of protection and incentive, would not otherwise exist.

Ghosh arranges the contributions, some of which have appeared elsewhere, into three parts: “Creativity and Domains of Collaboration,” “Mechanisms for Collaboration,” and “Ownership, Property, and the Commons.” The first part is populated with the bulk of the anthropological contributions to the book, along with Seeger’s and David’s pieces. This part indicates the range of historical, geographical, and ethnic precedents for models of collaborative work and ownership. Anthropologist Marilyn Strathern, for example, describes practices among some Papua New Guineans by which the cross-generational transmission of tributary works produces a corresponding authority and obligation in the acquirer to reproduce, enhance, and recreate the work. This process of ideal and material reproduction is neither plagiarism nor an infringement of a proprietary right among the New Irelanders who practice it. Rather, it is the socially motivated operation for preserving, transmitting, and validating the cultural record, a mechanism which also promotes a productive function. A common theme introduced in this part and pursued throughout the book is that the proprietary regime we presently take for granted as the optimal means for promoting creative labor ought to be tested against known, real world alternative traditions. Another theme identifies the creative, productive aspect of collective (or social or cultural) modes of information recording and transmission. These themes, combined with the aforementioned recognition of collaboration as a long persistent mode of production and ownership, comprise the bulk of the collection’s concerns and afford continuity to the text, despite the varieties of disciplinary sources of the contributions.

“Mechanisms for Collaboration,” the second part, includes empirical and theoretical treatments of collaboration, framed largely in terms of the market for intellectual property rights, a market driven primarily by corporate interests yet affecting parties as diverse as consumers, creators, citizens, and worshipers. The analyses view collaborative mechanisms as sources of benefits and costs that serve to explain and promote collaborative configurations. The contribution by anthropologist Christopher Kelty critically refers to “econometric models” and “calculative agencies” (129, citing Callon) to describe components of an economics of collaboration that reduce notions of creativity and innovation to merely quantifiable proprietary elements amenable to calculation. These components are not simply means for studying collaborative phenomena, but also for managing and controlling them. For example, Kelty examines the varieties of trust (so-called) inherent in business relationships, and their translation into algorithms for automatic processing. Automated solutions resolve one trust concern, but inevitably introduce another, and so on.

Where Kelty, noting the productive effect of an econometrics on the behaviors it models, is skeptical about the suitability of such a tidy device for depicting innovation and progress, legal scholar Yochai Benkler is more accepting of the neutral heuristic value of an economic approach. Both Benkler and Kelty recognize new modes of collaboration emerging in response to capabilities introduced by new technologies, but Benkler is content with basing an explanation—of the flourishing peer production industry in software development, one of his primary examples—at least partly on the value of “hedonic rewards,” the participants’ non-monetary (“sociopsychological,” as he puts it) incentives for engaging in voluntary production (181). Although Benkler’s fundamental point is that there are circumstances in which peer production is a form of project organization superior to more traditional, hierarchical, and proprietary forms of control, his relegation of hedonic reward to a mere factor in an economic equation assumes an essentially economic character of pleasure. [1]

Benkler’s assumption is characteristic of the persistently unpersuasive nature of so much writing, like some of that in CODE, about digital technologies, intellectual property regimes, creativity, innovation, collaboration, and democracy. Avid proponents of the salutary effects of new technologies too often assume a clear correlation between instrumental operations of law and technology on the one hand, and the “hedonic” enjoyment of creative fulfillment on the other. One way that they typically do so is by neglecting the frankly intrusive, equivocal, sometimes oppressive nature of technological progress, a factor explicit in Kelty’s wariness of “trust.”

To be clear, Benkler’s contribution is not itself an egregious example of this lapse. To the contrary, his work is notable because it is mostly clearheaded and instructive in its analysis of the efficiencies of peer production. Yet his contribution and several others in CODE aim unwittingly at communicating two potentially dissonant messages: first, new technologies are somehow agents of redemption, promising individuals heightened opportunities for democratic participation, but second, their success in doing so depends on enforcing participation to promote the network effect reflecting increased practical value of the technology. [2] A related concern is that the threshold determining what amounts to creativity and innovation can be very low, especially when the technology serves as a proxy for the content production it purportedly facilitates. Blogging technology per se, for example, does not assure high-quality open discussion, nor even widespread collaboration, for that matter, yet blogs have come to represent such a result.

In any event, the contributions comprising the second part of CODE identify existing “mechanisms,” such as Benkler’s peer production, as well as recommend new mechanisms to respond to the growing perception of openness and participation afforded by digital technologies. In this regard, attorney James Love and geneticist Tim Hubbard propose a clearinghouse approach to a business model for compensating musicians who distribute their work over peer-to-peer type networks. Listeners would voluntarily decide whom they would pay and how much, potentially via intermediary agencies that compete for listeners’ preferences respecting styles of music, particular musicians and performers, political or ideological stances, or distribution arrangements.

In his introduction to the third part, “Ownership, Property, and the Commons,” Ghosh notes the irony that although collaboration is in fact an enduring arrangement for productivity and innovation, the excessive strengthening of intellectual property rights over the last few decades is certainly a novelty. The contributions to this third part consider ways to counter the development. Legal scholar James Boyle promotes “the power of a concept like the public domain” (250), a new commons presently vulnerable to enclosure analogous to the fifteenth century process of enclosure that privatized commonly held grazing land. Boyle is rather pessimistic about the reinvigoration of a public domain at a time when “extending ever-stronger intellectual property rights is a very slippery slope” (248). By contrast, public policy scholar John Clippinger and journalist David Bollier detect a “renaissance of the commons” in their eponymous contribution (259). They base their optimistic view on the rise of the Internet and the open practices it fosters, such as the open software movement examined by Benkler.

The concept of a commons, it appears, has something of the quality of an allegory, motivating those who study and deploy it to discern in it a heightened significance worthy of interpretation and elaboration, but ultimately failing to disclose the key by which such an interpretation would be unpacked and elucidated. For Boyle the digital technologies and their economies may be read as an increasing insinuation of private rights into many of our most mundane affairs. Law approaches a limit situation in which all copying becomes infringement or plagiarism. For Clippinger and Bollier, conversely, digital technologies promise new opportunities for increased access to both traditional and innovative forms of information and expression. Copying and plagiarism become legally non-actionable behaviors as acknowledgement of their essential ubiquity grows. So is the commons the expanding and deepening realm through which our expressions are mutually controlled via network and security protocols and their schemes of legal enforcement? Or is it the massive accumulation of expressions themselves? Although pessimists and optimists alike hope to secure the latter—in the name of free expression, innovation, collaboration, democracy, and so forth—it is evident that the very commonality of the digital commons is a source of both restriction and liberation.

Free software author and proponent Richard Stallman cuts through much of the figurative fog, as usual, in his culminating contribution, a transcript of a speech on copyright and globalization. His concern is fundamentally with corporations, whose avaricious control of cultural commodities rather moots the prospect of a commons, and artists, most of whom make their livings, if at all, encouraged at best by the slim hope of cashing in courtesy of the corporate lottery. He proposes a new copyright for this age of variegated species of information, a regime of degrees of restrictions depending on the creative nature of works. The present age is a transitional one, comodified analog product existing alongside viral digital wares. He doesn’t envision a revolution embracing the latter, but a slow adjustment in its direction. Meanwhile, he argues for incremental improvements. “If you know the present system is lousy, it’s not hard to find a better alternative; the standard of comparison today is very low. We must always remember that when we consider issues of copyright policy” (331).

A final word about an aspect of CODE may seem gratuitous, but it is in fact an important matter in light of the cultural shift the book purports to address. It is astonishing that a book published by a major university press could be so badly proofread or that its index could be so nearly useless. The text is replete with misspellings and missing and superfluous words. One chapter, written perhaps by a scholar whose primary language is not English, offers up occasional syntactic twists that reflect the author’s distance from perfect fluency. This result is not to be blamed on the author, but on either Ghosh or the editor responsible for the title at the publisher, MIT Press. The index consists of barely more than two pages of entries, reflecting almost 350 pages of text. Using it, a reader simply cannot be sure to have found all (or, in some cases, any) references to numerous topics discussed by the contributors. Again, either the nominal editor or the publisher deserves criticism. If it includes responsibility for technical details such as correcting spelling, diction, and grammar, and crafting an index, Ghosh’s previously noted “‘open source’ approach to editing” (5) bodes ill for the practice. Collaboration in this context ought to mean making sure multiple readers review the text for style as well as substance before it goes public.

A single anecdotal instance of such a failure is of course not generalizable. But it does prompt apt and interesting questions. For instance, does “‘open source’ editing” entail its own sort of tragedy of the commons, the quality of rudimentary linguistic expression declining as traditional hierarchical modes of editorial governance transform into level collaborative enterprises? Or are economic principles at work here, according to which authors and readers rightly neglect the slight costs of occasionally sloppy, yet mostly legible texts relative to the high values of information and discussion they impart, particularly if those costs are a function of increased efficiencies in communication? Whatever the explanation for this particular text’s stylistic shortcomings, it is nevertheless fair to suggest that CODE’s account of a reinvigoration of attention to old modes of collaborative ownership in a new digital economy demands a complementary account of the concomitant shifting criteria of authority of information and expression, of what counts as reliable, well-crafted, pleasurable, or persuasive.

 

References

Braman, S. (2006). Tactical memory: The politics of openness in the construction of memory. First Monday, 11 (7). Retrieved from <http://www.firstmonday.org/issues/issue11_7/braman/index.html>

Benkler, Y. (2005). Coase’s penguin, or, Linux and the nature of the firm. In R.A. Ghosh (Ed.), CODE (169-206). Cambridge, MA: MIT Press.

Benkler, Y. (2006). The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven, CT: Yale University Press.

Boyle, J. (2005). Fencing off ideas: Enclosure and the disappearance of the public domain. In R.A. Ghosh (Ed.), CODE (235-58). Cambridge, MA: MIT Press.

Callon, M. (Ed.). (1998). The Laws of the Markets. Oxford: Blackwell Publishers.

Clippinger, J., and D. Bollier (2005). A renaissance of the commons: How the new sciences and Internet are framing a new global identity and order.” In R.A. Ghosh (Ed.), CODE (259-86). Cambridge, MA: MIT Press.

Ghosh, R. A. (Ed.). (2005). CODE: Collaborative Ownership and the Digital Economy. Cambridge, MA: MIT Press.

David, P. A. (2005). From keeping ‘Nature’s Secrets’ to the institutionalization of ‘Open Science.’” In R.A. Ghosh (Ed.), CODE (85-108). Cambridge, MA: MIT Press.

Ghosh, R. A. (2005). Why collaboration is important (again). In R.A. Ghosh (Ed.), CODE (1-11). Cambridge, MA: MIT Press.

Gordon, W. J. (2003). Intellectual property. In P. Cane and M. Tushnet (Eds.), The Oxford Handbook of Legal Studies (617-46). Oxford: Oxford University Press.

Kelty, C. (2005). Trust among the algorithms: Ownership, identity, and the collaborative stewardship of information. In R.A. Ghosh (Ed.), CODE (126-51). Cambridge, MA: MIT Press.

Love, J., and T. Hubbard. (2005). Paying for public goods. In R.A. Ghosh (Ed.), CODE (207-29). Cambridge, MA: MIT Press.

Seeger, A. (2005). Who got left out of the property grab again? Oral traditions, indigenous rights, and valuable old knowledge. In R.A. Ghosh (Ed.), CODE (75-84). Cambridge, MA: MIT Press.

Stallman, R. (2005). Copyright and globalization in the age of computer networks. In R.A. Ghosh (Ed.), CODE (317-35). Cambridge, MA: MIT Press.

Strathern, M.(2005). Imagined collectivities and multiple authorship. In R.A. Ghosh (Ed.), CODE (13-28). Cambridge, MA: MIT Press.

Notes

1. In a work published elsewhere, legal scholar Wendy J. Gordon is, like Kelty and the present review, critical of reductively economic views of communal productivity: “What makes a community are the exchanges and reciprocity for which its members do not demand explicit and calculating payment.” Wendy J. Gordon, “Intellectual Property,” in The Oxford Handbook of Legal Studies, eds. Peter Cane & Mark Tushnet (Oxford: Oxford University Press, 2003), 617-46. Prof. Gordon’s chapter is an excellent survey of approaches to understanding intellectual property regimes.

2. As this review was being prepared, the opening paper from the First Monday conference appeared, Sandra Braman, "Tactical Memory: The Politics of Openness in the Construction of Memory." First Monday 11, no.7 (July 2006). Its lead paragraph reads, “The openness movement is driven by the belief that access to information is inherently democratic, and riven by the assumption that all of the effects of openness will be good from the movement’s perspective. But means are not ends, nothing is inevitable, and just what will be done with openly available information once achieved is rarely specified.” In his recently published book, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, CT: Yale University Press, 2006), Benkler’s rhetoric remains sanguine—cf. both components of his title—but he is careful to frame his discussion of the democratic promise of the Internet in comparative terms vis-à-vis mainstream mass media (212-72).

 

Dean C. Rowan is a Reference Librarian at the Boalt Hall School of Law Library, University of California, Berkeley.

Publication date: 31 October 2020

 

 

Engaging Prose, Disappointing Analyses

Mark R. Cheathem

Historians in Trouble: Plagiarism, Fraud, and Politics in the Ivory Tower By Jon Wiener New Press, 2005: 260 pages

 

Jon Wiener, Professor of History at the University of California at Irvine, a contributor to The Nation, and a radio host on KPFK in Los Angeles, examines, in varied detail, the difficulties that historians have recently faced with charges of plagiarism and scholarly misconduct. His book follows on the heels of two other recent books that have also examined this disturbing issue: Peter Charles Hoffer’s Past Imperfect: Facts, Fictions, Fraud—American History from Bancroft and Parkman to Ambrose, Bellesiles, Ellis, and Goodwin (2004), which deals wholly with historians, and Ron Robin’s Scandals and Scoundrels: Seven Cases that Shook the Academy (2004), which contains one section covering historians.

Some of the historians at whom Wiener looks brought charges of plagiarism upon themselves through insufficient documentation of sources in best-selling books. Pulitzer Prize-winning author Doris Kearns Goodwin, for example, plagiarized portions of her book, The Fitzgeralds and the Kennedys (1987) from another writer, then paid the wronged author to keep the theft secret. More notoriously, plagiarism was seemingly pervasive in several of the books of the late Stephen Ambrose, historical consultant for "Saving Private Ryan" and prolific World War II historian. Others, such as Michael Bellesiles and Joseph E. Ellis, were accused of fabrication. In Bellesiles’ case, it was a combination of questionable quantitative data that supposedly supported his argument about the lack of a gun culture in early America, notes purportedly destroyed in a flood, and missing archival records. For Ellis, it was his claim to have participated in events of the Vietnam era, including fighting in Southeast Asia, when in fact he had been pursuing his graduate studies, then teaching, in the United States. These cases received the most attention in the media, but there were others, not all of which involved charges of plagiarism or fabrication. For example, noted women’s historian Elizabeth Fox-Genovese faced charges of sexual harassment and discrimination at Emory University, while Allen Weinstein, the current Archivist of the United States, was accused of purchasing access to documents for his exclusive use and withholding documents from other researchers.

In his introduction, Wiener poses the question that is central to this book: “Why do some cases [of scholarly dishonesty] become media events while others remain within the confines of scholarly settings?” The answer, according to him, is “power wielded by groups outside the history profession” (2). In particular, Wiener contends that politically conservative groups have “had much more power than the left to define the meaning and significance of charges of misconduct for the public” (6). Wiener also takes to task the nation’s historical organizations, particularly the American Historical Association (AHA), for not doing more to investigate and offer judgments on these cases.

While engaging in its prose, Wiener’s work is disappointing. In a couple of instances, he fails to disclose the names of acquaintances or colleagues who shared information or analysis pertinent to the discussion at hand. One would expect something more than unsubstantiated gossip about the amount of a court settlement in the Fox-Genovese case, which Wiener claims an “elected official of the Organization of American Historians” gave him (15). A more complete explanation from one of Wiener’s unnamed “colleague[s]” about why s/he believed that Bellesiles’ data was “not bad” also seemed necessary (79).

More importantly, the book is less than satisfactory because Wiener is unable to overcome his political biases. For example, in discussing the charges against Fox-Genovese, he contrasts her treatment with that of David Garrow, another Emory professor who was suspended after an investigation into charges that he had assaulted a university employee. Wiener questions why Emory chose to investigate Garrow and not Fox-Genovese; his conclusion, despite his own admission that “the evidence against her [Fox-Genovese] may not have been completely accurate,” seems to be that she was a “conservative hero” (27, 28). By Wiener’s logic, her opposition to “feminist political correctness at Emory,” presumably including this episode, led President George W. Bush to give her the National Humanities Medal in 2003 (One of the other recipients that year was Edith Kurzweil, the final editor of the Partisan Review, which one would hardly call a bastion of staunch, red-state, Republican conservatism).

Wiener also posits that Michael Bellesiles “suffered the most serious punishment not because his offenses were the most serious, but because his opponents were the most powerful” (213). Bellesiles’ only major sin apparently was an incomplete footnote, one in which he “failed to indicate how he carried out his research, and what his methods were” (74). The omission of that data would have done nothing to lessen the book’s central argument about gun usage in early America, according to Wiener. The case against Bellesiles was more complicated than he presents, however, and to blame the National Rifle Association and the political Right for all of Bellesiles’ problems overlooks the seriousness of his misdeeds. Yes, Bellesiles’ work was politically charged, and there is little doubt that some of his fiercest critics had ideological axes to grind. Wiener’s statement that the real “problem is that some historians whose offenses were more serious, and against whom the evidence was more damning, received little or no punishment,” however, is too dismissive, too simplistic (73-74). It seems unlikely that Emory University (Bellesiles’ employer, which investigated the accusations against him), Columbia University (which awarded Bellesiles’ book the prestigious Bancroft Prize, then rescinded the prize), and the National Endowment for the Humanities (which had funded a fellowship that Bellesiles received, but removed its name from it as a result of the uproar) all succumbed to a right-wing conspiracy based on defending gun rights. Possible, but hard to believe.

In fact, Wiener’s insistence on finding political conspiracies behind the pursuit of, or the failure to pursue, suspected cases of scholarly misconduct is not unique. Hoffer’s Past Imperfect, while not as blatant, also suffers from a similar weakness. Hoffer partly blames recent historical trends for encouraging historians to become “consumer-driven” and giving in to the “anarchistic implications” of the “new” history (233), breaking down the “truth” of history. As he argues, new history tells Americans that “if the study of history is nothing more than make-believe, why bother condemning Ambrose and the others?” (234) There is more than a hint that Hoffer suspects that the political Left, rather than the Right, is behind the recent outbreak of these cases.

What Wiener (and Hoffer, too, for that matter) does a good job of is criticizing the AHA for its apparent abandonment of protecting academic integrity among historians. The AHA has made it clear in recent years that it cannot and will not police the profession when it comes to scholarly misconduct, leaving it up to institutions to investigate and hand down sanctions when needed. Wiener outlines that the AHA abandoned this responsibility because of concerns about confidentiality and the organization’s inability to enforce sanctions against guilty parties, which falls, in its view, on the employing institutions. While both of these reasons are perhaps understandable, they seem unwise from a public relations standpoint, not to mention an ethical perspective. Many of us would be mortified if the American Medical Association refused to involve itself in ethical issues related to professional medicine; why do we seem so blasé, then, when the organization charged with protecting our memories does so?

It is unfortunate that Wiener succumbs to the allure of ideology in analyzing these examples. Blaming politicians for ignoring, covering up, or pursuing cases of scholarly misconduct really does not do much to lessen the after-effects of the culture wars of the 1990s. It would be more productive, perhaps, to scrutinize what in society generally, and in the historical profession specifically, encourages this type of behavior. Are these instances isolated, or are they indicative of a larger societal problem? If they are emblematic, are graduate programs doing enough to train future historians in the proper ethics of the profession so that we avoid the need for accusations and investigations appearing in the media? Wiener is convinced that he has the answer to the problem, but it seems clear that his will not be the last word on the subject.

Mark R. Cheathem, Assistant Professor of History at Southern New Hampshire University, is the editor of the Center for Academic Integrity's Integrity Update newsletter.

Publication date: 21 July 2020

 

Copyright, Plagiarism, and Popular Culture: Siva Vaidhyanathan's Copyrights and Copywrongs

Kyle K. Courtney

Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity By Siva Vaidhyanathan New York University Press, 2003: 272 pages

Reading Siva Vaidhyanathan’s Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity brought to mind every reason why America has become fascinated with the concept of copyright. Technology has brought the copyright issue into every home in America, and the dialogue is no longer dominated by lawyers and scholars. Even my neighbor and her 17 year old son have an opinion on copyrights, music, and the nature of ideas. Siva Vaidhyanathan’s book is for anyone interested in a matter-of-fact, absorbing cultural history of copyright in America.

Vaidhyanathan, a cultural historian, is currently an assistant professor of Culture and Communication at New York University. He has formerly taught at Wesleyan University and the University of Wisconsin at Madison. Recently he was elected as a Fellow of the New York Institute for the Humanities. Vaidhyanathan has also written The Anarchist in the Library (Basic Books, 2004), which is considered a “sequel” to Copyrights and Copywrongs. Additionally, he has appeared in many publications, including The Chronicle of Higher Education, New York Times Magazine, and The Nation.

The focus of Copyrights and Copywrongs is to present a cultural examination of the evolution of copyright, from its modest beginnings as a concept, “to promote the Progress of Science and the useful Arts,” [1] to the present hard-line statutory scheme in the laws of United States. The book launches with a succinct history of copyright from the early English common law, through the framing of the Constitution, taking the reader right up to the present day controversy of music sampling. The book’s goal: to argue that current U.S. copyright law suffers from an overexertion of protection of ideas. [2]

What would be most beneficial to the United States, according to the author, is a “thin” copyright protection, which is defined as “just strong enough to encourage and reward aspiring artists, writers, musicians, and entrepreneurs, yet porous enough to allow full and rich democratic speech and the free flow of information” (p. 5). Chapter by chapter, Vaidhyanathan charts the historical movement away from the “thin” copyright ideal through creative expressions such as film, dance, writing, and music. According to the author, today’s “thick” copyright laws are curbing intellectual freedom, creative expression, and education. Furthermore, the present “thick” protection is reinforcing the notion that major corporations, studios, and business enterprises “own” much of the creative past of this country.

One particular stop along the way that takes a most interesting turn is Vaidhyanathan’s discussion of Mark Twain. Twain was not only a great American author, but he was also a great American copyright adjudicator. In a portion of literary history of which I surmise many Americans and some scholars are unaware, Vaidhyanathan outlines Mark Twain’s ever changing views on the nature of copyright in America. Even more important is Vaidhyanathan’s discussion of plagiarism through the words and letters of Mark Twain.

When Mark Twain was growing up in America in the early 1800’s, he was enthralled with the writings of the British authors. At that time, many publishing houses in England did not have agreements with American publishers. In fact, many of the British novels found on American bookshelves in that era were infringing copies of such works. Vaidhyanathan cleverly points out that British works not only carried more intellectual value than American works, they were also cheaper in price. A reader in 1853 London paid $2.50 for a copy of Charles Dickens’ works, whereas an American reader paid 6¢. Even the characters in Twain’s novels, such as Tom Sawyer, read European works like Casanova, bought for 50¢.

Vaidhyanathan examines how later, during the 1870’s, Twain’s works were being pirated by Canadian publishing houses. Vaidhyanathan examines many of Twain’s viewpoints regarding copyright protection, which changed at this particular time. Many scholars, Vaidhyanathan states, erroneously divide Twain’s view of copyrights as two distinct opposites formed over his literary career. Vaidhyanathan asserts, however, that Twain was “a busy, contradictory, living human being who traveled, read, and changed his views several times in his lifetime” (p. 57).

Mark Twain ended up advocating a position similar to another literary figure in American history, Noah Webster. After Congress passed the first federal copyright statute, Noah Webster went on a campaign to extend the term of copyright protection. In 1790, the term of protection was 14 years. In 1831, Webster successfully lobbied to extend the term to 28 years, and helped pass a provision that allowed an author’s widow and children to file for copyright renewal. What Vaidhyanathan reveals is that Webster wanted perpetual copyright protection, which is similar to what Mr. Twain advocated in his later years.

Again, in ironic fashion, Vaidhyanathan points out, using Twain’s letters, testimony, conversations, and unpublished writings, that Twain was a “borrower” (p. 57). Vaidhyanathan states that events Twain used in his writings were “unapologetically lifted from others” (p. 57). At a time when Helen Keller was accused of plagiarism, Twain wrote to her stating

Oh, dear me, how unspeakably funny and owlishly idealistic and grotesque was that “plagiarism” farce! As if there was much of anything in any human utterance, oral or written, except plagiarism. The kernel, the soul - let us go further and say the substance, the bulk, the actual and valuable material of all human utterances - is plagiarism. For substantially all ideas are second-hand, consciously or unconsciously drawn from a million outside sources. (p. 57)

The author draws on many of Twain’s works where he confessed to being a literary “thief,” a party to excessive influence, and a plagiarist. [3] Vaidhyanathan reveals that Twain had created his own distinction between piracy and plagiarism: “[P]iracy was theft…plagiarism was bad manners” (p. 67). The author deftly addresses the various fine points of plagiarism and piracy, and concludes that Twain was clearly a rampant plagiarist.

One of the most fascinating of Vaidhyanathan’s analyses is his review of an unpublished, arcane Twain work titled “The Great Republic's Peanut Stand,” which Vaidhyanathan argues is Twain’s only dissertation on copyright law. It is a Socratic dialog between a United States senator and a “Wisdom Seeker,” who is actually Twain himself. The book examines this work in detail and reveals Twain’s final move from a protectionist copyright view to that of outright perpetual copyright protection that could be passed on through estates or heirs. Again, we return to the results that both Twain and Webster desired: perpetual copyright protection. With the relatively recent passage of the Sonny Bono Copyright Term Extension Act, Vaidhyanathan cleverly reveals that the present copyright laws are analogous to the perpetual copyright protection for which these two historical figures argued. “The Great Republic's Peanut Stand” is an interesting work, and the book reproduces large portions of the work for readers to enjoy.

The book narrates other areas of copyright law beyond the plagiarism debate. Vaidhyanathan offers four additional chapters on the history of copyright in literature, film, and music. The author makes the content entertaining by intertwining stories of popular culture, with appearances by George Harrison, Groucho Marx, Led Zeppelin, and Pac-man, to name just a few. The book methodically examines the creative process for literature and music, most notably an interesting chapter on folk, blues, rock, and, rap music. Vaidhyanathan points to humanity’s creative past, using examples to advocate his position on “thin” copyright protection, which, he argues, should be “just strong enough to encourage and reward aspiring artists . . . yet porous enough to allow full and rich democratic speech and the free flow of information” (p. 5).

In the chapter on music, Vaidhyanathan notes that in African-based cultures borrowing and building upon earlier works is not considered a violation of anyone’s “rights,” but a tribute to that initial creative process. The reader is brought to the present age of sampling, which Vaidhyanathan points out is a new cultural expression of that tribute. But, arguing against the current state of copyright law, many artists who sample portions of others’ works have been sued for copyright violation or forced to settle through arbitration to avoid lawsuits. These contemporary legal and quasi-legal actions clearly point to a dramatic shift in copyright policy. Furthermore, these events reveal a lack of the cultural understanding necessary for ideas and expressions to flourish in the United States. [4]

The paperback version of the book includes the author’s afterward, which covers notable events in the field of copyright law since the initial publication of the book in 2001. Vaidhyanathan gives summaries of high profile copyright cases such as Eric Eldred’s Supreme Court challenge to the Copyright Term Extension Act and the “Gone with the Wind” parody case. The author also proposes an ominous vision of the United States educational and creative future, if the present notions of “ideas as property” are not opposed.

The book flows nicely and the author avoids the use of frustrating legal terminology. The chapters on music are concise, but it was difficult to really get a feel for the music infringement cases, unless the reader has heard the songs in question. I did find an example of the songs in a lecture given by Vaidhyanathan on November 18, 2004. Columbia University’s School of the Arts Digital Media Center has put the full lecture titled “Copy Rights and Copy Wrongs” on their website. It is available at http://www.columbia.edu/itc/soa/dmc/siva_vaidhyanathan/. In this lecture Vaidhyanathan reviews and plays many of the songs from Copyright and Copywrongs, which made it easier for me to review the author’s analyses.

This book presents an engrossing history of copyright, and the author clearly summarizes his views on the adverse nature of “thin” copyright protection. Vaidhyanathan neatly contrasts his “thin” theory with the structure currently in place, through examination of the present state of copyright, licensing and other contracts of adhesion, which prevent the free flow of ideas and information. However, one small criticism of this reviewer is that the author does not clearly state a plan of action to fight the current scheme. Vaidhyanathan’s sketch of copyright, from past to present, clearly charts the erosion of rights, but does not take the reader any further. While there are suggestions in the "Afterword" to read other authors or join grass roots movements such as “information commons,” the lack of a well outlined, organized strategy is surprising. Maybe this was done on purpose. Maybe Vaidhyanathan’s desire was to educate, alert, and release the readers to get involved before their own personal right to ideas permanently disappears. Even without a plan of action, this book does offer the average reader a fascinating history of copyright, plagiarism, and culture.

On a final note, the author, reflecting his personal notions on copyright’s true role in society, has posted a copy of Copyrights and Copywrongs in its entirety at http://homepages.nyu.edu/~sv24/ . The book is available for download in full PDF format.

 

References

Demers, J. (2006). Steal this music: How intellectual property law affects musical creativity. Athens, GA: University of Georgia Press.

Ginsburg, J.C. (2002). How copyright got a bad name for itself. Columbia Journal of Law and the Arts, 26, 61.

Lessig, L. (2001). The future of ideas : The fate of the commons in a connected world. New York: Random House.

 

Notes

1. U.S. Const. art. I, § 8, cl. 8.

2. Siva Vaidhyanathan is not the only scholar to analyze the United States’ overreaching copyright policy. For similar viewpoints see Lessig (2001). Also, for an excellent summary of the related issues see Ginsburg 2002).

3. Vaidhyanathan writes that Twain even stated “These object lessons should teach us that ninety-nine parts of all things that proceed from the intellect are plagiarisms, pure and simple” (p. 65).

4. Vaidhyanathan’s ideas regarding music and copyright are echoed and expanded upon in a recent work by Joanna Demers (2006).

Kyle K. Courtney is the Reference/Electronic Services Librarian at Northeastern University’s School of Law in Boston, MA. He also teaches the law school’s Advanced Legal Research course. In addition, Courtney lectures on intellectual property and plagiarism for the Organizational and Corporate Communication program at Emerson College in Boston,

Publication date: 19 June 2020

Fundamental Values: Honesty and Academic Integrity
On College Campuses Today

Diane Boehm

Doing Honest Work in College: How to Prepare Citations, Avoid Plagiarism, and Achieve Real Academic Success By Charles Lipson University of Chicago Press, 2004: 208 pages

Understanding Plagiarism: A Student Guide to Writing Your Own Work By Rosemarie Menager-Beeley and Lyn Paulos Houghton Mifflin, 2006: 57 pages

Academic dishonesty and plagiarism are on every teacher’s mind. Discussions of plagiarism are ubiquitous, from the Chronicle of Higher Education to local college student newspapers. Various listservs (for example, the WPA listserv for writing program administrators) have lengthy dialogues about whether there is/is not an epidemic of student cheating—and whose responsibility it is to deal with it. Clearly the increasing number of universities with site licenses for use of Turnitin.com, as well as the use of other cheat detection software (Essay Verification Engine, Integriguard.com, Glatt Plagiarism Services), suggests that the problem is both pervasive and frustrating.

If the statistics regarding the number of students who cheat are accurate, the American cheating ethos appears to be deep-rooted. In his best-selling book, The Cheating Culture: Why More Americans are Doing Wrong to Get Ahead, David Callahan argues that cheating has taken hold in all aspects of American life—sports, business, politics--but only rarely are cheaters held accountable. For this reason, merely presenting academic dishonesty or plagiarism as a classroom evil to be squelched is woefully inadequate for getting to the heart of the problem and may even lead to a classroom atmosphere of suspicion and mistrust.

Certainly plagiarism can be the result of misunderstanding or inexperience with integrating research sources into a student’s text, as every teacher understands. This may be especially true for students from other cultures. But the thousands of hits per day on termpaper sites such as cheathouse.com or schoolsucks.com suggest many students are indeed shopping for papers rather than writing them. To have impact, then, any discussion of plagiarism must go beyond classroom specifics of “thou shalt not”; the real goal is to develop a deep understanding of academic integrity and a campus-wide commitment to such integrity as an essential foundation for higher education. Thus the context for addressing plagiarism begins with grounding students in ethical principles.

Given the national conversation on cheating, it comes as no surprise that publishers are offering their own contributions to this conversation. A student supplement, Understanding Plagiarism: A Student Guide to Writing Your Own Work, by Rosemarie Menager-Beeley and Lyn Paulos, was recently published by Houghton Mifflin; Doing Honest Work in College: How to Prepare Citations, Avoid Plagiarism, and Achieve Real Academic Success, written by Charles Lipson, was published by the University of Chicago press in 2004. Both are designed as classroom resources.

Understanding Plagiarism was written, according to the English Senior Marketing Manager for Houghton Mifflin, to “give students a constructive, nuts-and-bolts guide to both understanding and avoiding the pitfalls of plagiarism” and to provide “a solid awareness of what is expected to maintain academic honesty”[1]. Available as a course supplement or packaged with any text for $1.17, its conciseness may be of some value to teachers who lack other resources. It partially fulfills its first purpose, but does not accomplish the second. Its limited focus on plagiarism lacks the necessary ethical context most likely to make an impact on students, and its low budget format is reflected in the quality of the content.

To begin a classroom resource with a mere definition of plagiarism and the steps to prevent it begs the question of why students should care about it at all, aside from the obvious need to prevent negative consequences. The authors’ focus seems to be on avoiding penalties, rather than on fostering intellectual growth and personal integrity. The only brief reference to “academic honesty and the validity of a college degree” is found under the heading “Know the rules,” implying that knowing rules is all that matters.

The text addresses the reader directly in an attempted friendly tone (“When you draft your paper . . . .,”) but the style is mechanical, not motivational, and thus unlikely to inspire a student’s best efforts. And it’s hard for any instructor—or student—to give credence to a text so carelessly edited. Editing lapses include wrong and extraneous words, inconsistent bolding for headings, incorrect spacing for ellipses, example citations with incorrect punctuation and missing italics for volume numbers, and inconsistent language (e.g., “reverse the first author’s name” in one location, “invert all names” a few pages later), all within a brief 57 pages. One citation on the final page of examples is missing a period, and the ellipses throughout the book are incorrectly spaced; several, in fact, are just plain incorrect—no ellipsis should have been used at the beginning of the block quotations on p. 28.

The organization of citation examples in Chapter 6 is curious. The chapter is titled “Listing the Works Cited”; however, the chapter also includes APA, which uses “References” rather than “Works Cited” to title its bibliography page. The chapter includes only MLA and APA models. Furthermore, all handbooks I have seen organize specific sections for each documentation style, followed by parallel sections or chapters for other formats (e.g., MLA, APA, CMS, etc.). This organization is used for a good reason—students will use only one format in a paper. However, in Understanding Plagiarism, the chapter section for online sources alternates between MLA and APA, which is likely to confuse a student. An even greater problem is the complete lack of any examples of database citations, the most likely online sources to be used in students’ researched papers by far. Such an omission is baffling.

Some passages are just plain hard to understand: “It may be confusing when and how to add a citation to the original source. A good practice to follow is if a sentence or idea came from an outside source, then it should be acknowledged with a parenthetical citation” (p. 23). Where were the editors who should have remembered that their audience was students—students for whom lack of clarity and abstract language are likely to cause confusion rather than enlightenment? I wonder also if students would grasp the concept of a “guest voice” (p. 10). And exactly what is an “indirect quotation”? Isn’t that an oxymoron? The book defines it as “a recasting in your own words of the ideas of another person” (p. 15), but then uses nearly the same language to define paraphrase as “a restatement of an author’s writing by using your words and accurately conveying the original information (p. 21).

Furthermore, the tone of the book suggests that the principles outlined are universal, rather than reflecting the conventions of the American academy. International students may comprise 10% or more of the student populations on many campuses, and there are some students--American students included--who come from academic and cultural backgrounds which may not have provided a common understanding of intellectual property, not to mention respect for the network of laws to protect it; thus presenting a discussion of plagiarism without awareness of cultural context seems both unwise and uninformed.

Perhaps some teachers will find useful features in this short book; however, everything in the book is covered in any of the standard handbooks or the accompanying peripherals produced by nearly all academic publishing houses. The "Knowledge Check" (quiz) with "Answers" at the end of each chapter to help students review the content might be useful to some teachers. However, many of the questions, like the "Tips" in each chapter, hardly inspire deep thinking (e.g., True or False: “Getting a paper from a friend or the Internet is a good way to get a head start on your assignment,” p. 14; clearly the answer is False, but students I know would be likely to choose a different answer: “duh”). Many of these criticisms may appear to be minor issues; however, we all know colleagues who do indeed expect students to “get it right” and penalize when they do not. It appears to me a reasonable expectation for publishers to “get it right” as well.

Lipson’s book, Doing Honest Work in College, in contrast, opens with “The Three Principles of Academic Honesty,” followed by a lengthy second chapter discussing academic honesty “from your first class to your final exam” before its discussion of plagiarism in Chapter 3. The book is divided into two parts, plus a helpful index. Part One, "Academic Honesty," covers the first 48 pages; Part Two, the remainder of the 180 pages, begins with a chapter on "The Basics of Citation," followed by individual chapters on nine different documentation formats. It concludes with a FAQs chapter about all reference styles.

Several aspects of Part One would make it a useful classroom tool. It teaches students, especially in Chapter 2, how to “do college”; his discussion ranges from work in groups to lab work to take-home exams. It too contains "Tips," highlighted boxes with key information; Lipson’s Tips, however, are clear and explicit:

Tips on writing honest papers:

• Cite others’ work whenever you rely on it.

• When you use someone’s words, quote them accurately, mark them as a quotation, and include a citation.

• When you paraphrase, use your own distinctive voice, not a facsimile of the author’s. Be sure to include a citation.

• Never represent anyone else’s work as your own.

• Never hand in the same paper to two classes unless you have permission from both instructors.

• Never buy, sell, or “borrow” papers. Do your own work. (p. 10)

 

Clearly, the book values the “why” of academic integrity, not just the “what,” focusing on academic honesty, a positive behavior, and then explaining how plagiarism undermines it. Lipson describes cheating as “a self-inflicted wound on your own education” (p. 11), reminding students that “academic honesty is central to the university” (p. 33). Thus the book speaks to students’ aspirations, not only to their classroom behaviors, a strategy far more likely to help students develop ethical commitment.

The tone is conversational, addressing the reader directly; the content is highly readable and appropriate for both American and international students. For instance, the three principles of academic integrity which open the book, are stated thus:

• When you say you did the work yourself, you actually did it.

• When you rely on someone else’s work, you cite it. When you use their words, you quote them openly and accurately, and you cite them, too.

• When you present research materials, you present them fairly and truthfully. That’s true whether the research involves data, documents, or the writings of other scholars. (p. 3)

 

One of the helpful suggestions Lipson offers students is the idea of "Q-notes," which would make inadvertent plagiarism far less likely. Lipson suggests that when drafting, students use the letter Q and the page number whenever they integrate a quote; that way they will remember both the quotation and its source. The book also provides multiple examples of quoting and paraphrasing, to help students learn these skills.

In Part Two of the book, Lipson’s "Basics of Citations" (chapter 4) presents a helpful overview of why different disciplines have distinctive citation styles and what they have in common. Each citation style then comes under a separate chapter heading, beginning with an overview of the distinctive features of that style, followed by an index for all the examples in the chapter. Chicago Manual of Style is listed first (probably by publisher’s choice), followed by MLA, and APA, as well as less common citation styles such as CSE for the biological sciences and Bluebook legal citations. Perhaps Lipson canvassed his colleagues in all departments, and then provided citation formats for all styles used on the University of Chicago campus. (The book is required for all University of Chicago students).

In each citation style chapter, the examples of the different citation formats for different types of publications (e.g., books, journal articles, newspaper articles) are separated by lines across the page, a very user-friendly way to guide students to the appropriate format for the type of source they are citing. The examples are organized with the bibliographic entry and the in-text citation for each type of source within the same block; this is an efficient way to group the information, demonstrate what information is required for each, and remind students that both types of citation are necessary. And each chapter includes multiple examples for databases, as well as for weblogs, software, and other electronic sources frequently cited by students.

Each citation style chapter concludes with a helpful list of the common abbreviations used in each style; some also include FAQs about that citation format. The concluding chapter is titled “FAQs About All Reference Styles” and includes typical student questions, such as “What about citing a work I’ve found in someone else’s footnotes?” (p. 174), or “How do I handle the line break [for a URL]?” (p. 178). The final chapter thus brings the student back to the central focus that “pretty much” every type of source used in the paper must be cited (except well-known facts), and that the quality of a paper will depend directly on the quality of the sources used to research it.

Lipson’s book would cost students more ($10.40 new on Amazon) than Understanding Plagiarism, but the book provides information that would be helpful to students in all disciplines throughout their academic career. Furthermore, it reminds them again of the underlying principles which have made American higher education respected around the world and of their role in upholding these principles.

As the homepage for the Center for Academic Integrity at Duke University reminds us, "Academic integrity is a fundamental value of teaching, learning, and scholarship." Of these two books, only Lipson’s makes a valuable contribution to our shared responsibility to cultivate this fundamental value in all our interactions with students and colleagues.

Notes

1. email communication, 17 November 2020

Diane Boehm is the Director of the University Writing Program at Saginaw Valley State University, Michigan.

Publication date: 13 January 2021

Reviews Forthcoming

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity By Lawrence Lessig Penguin Press, 2004: 348 pages

Authorial Echoes: Textuality and Self-Plagiarism in the Narrative of Luigi Pirandello By Catherine O'Rawe Legenda, 2005: 190 pages

Scandals and Scoundrels: Seven Cases That Shook the Academy By Ron Theodore Robin University of California Press, 2004: 277 pages

Burning Down My Masters' House: My Life at the New York Times By Jayson Blair New Millennium, 2004: 288 pages

Past Imperfect: Facts, Fictions, Frauds - American History From Bancroft And Parkman To Ambrose, Bellisles, Ellis, And Goodwin By Peter Charles Hoffer Public Affairs, 2004: 287 pages

Voodoo Science : The Road from Foolishness to Fraud By Robert L. Park Oxford University Press, USA , 2001: 240 pages

The Great Betrayal : Fraud in Science By Horace Freeland Judson Harcourt, 2004: 480 pages

The Cheating Culture: Why More Americans Are Doing Wrong to Get Ahead By David Callahan Harcourt, 2004: 353 pages

Reviews of the following books invited:

(query editor if interested--other review suggestions welcome)

The Bear Bryant Funeral Train By Brad Vice University of Georgia Press, 2005: 168 pages (may be difficult to obtain a copy as this has been taken out of print by the publisher)

Frauds, Myths, and Mysteries: Science and Pseudoscience in Archaeology By Kenneth L. Feder McGraw-Hill, 2001: 352 pages

Gray Lady Down: Jayson Blair and How the New York Times Lost Touch With America By William McGowan Encounter Books, 2005: 240 pages

Promises I Can Keep : Why Poor Women Put Motherhood Before Marriage By Kathryn Edin & Maria Kefalas University of California Press, 2005: 312 pages

Country of My Skull By Antjie Krog Three Rivers Press, 2000: 432 pages