I have to disagree with my friend Geoff Pullum's comments on the allegation of plagiarism against Kaavya Viswanathan, the Harvard undergrad whose novel How Opal Mehta Got Kissed, Got Wild, and Got a Life, contains passages similar to passages in Megan McCafferty's Sloppy Firsts. I don't think that Ms. McCafferty has a valid suit for copyright infringement, nor do I think that Ms. Viswanathan is guilty of plagiarism.
Let's dispose of copyright infringement first. Even if Ms. Viswanathan had copied 24 passages literally from Ms. McCafferty's work she would not be guilty of copyright infringement because those 24 passages constitute a tiny fraction, less than 1%, of both novels and there is no sense in which they are of any particular importance. That falls well within the amount of copying permitted by the Fair Use doctrine. I doubt very much that any court would decide in favor of Ms. McCafferty on this point. Moreover, Ms. McCafferty would receive no actual damages because Ms. Viswanathan's borrowing cannot be said to have reduced the market value of Ms. McCafferty's work. I am not a lawyer, much less Ms. McCafferty's lawyer, but I don't think she's got a case.
Turning now to plagiarism, I agree with Geoff that the similarities between certain passages in the two novels are very unlikely to be due to chance. I don't think that a monkey sat down one day at Ms. Viswanathan's computer and in the course of randomly pecking away at her keyboard typed them in. That means that they are not accidental., but there is a critical difference between not accidental and intentional. The decisive question with regard to the charge of plagiarism is whether Ms. Viswanathan knowingly copied from someone else's work. I submit that there is no good reason to believe that she did and moreover that it is highly implausible that she did.
Let's look first at plausibility. If you think that Ms. Viswanathan engaged in plagiarism, what exactly do you think that the scenario was? It is pretty clear what happens in cases of out-and-out plagiarism. For example, a junior faculty member, under pressure to publish before his or her tenure review, copies someone else's paper and submits it to another journal. The potential gain is clear: an additional career-advancing publication at the cost of a small fraction of the time it would take to write it. The potential cost is also great - loss of a job and possibly loss of a career - but the "author" reasons that the chance of detection is small enough to be worth the risk. Or, a student, lazy or out of time for reasons good or bad, copies someone else's term paper and submits it as his or her own. Here again the potential benefit is clear: a much better grade than if the student were to submit no paper or one hastily assembled. The potential cost is also fairly great - ranging from a failing grade to expulsion - but if the source of the plagiarized paper is well chosen the student may well consider the risk of detection to be small.
In such cases as these, the perpetrator clearly derives a substantial benefit at what he or she believes, often with reason, to be a small risk. Without meaning to justify their actions, one can easily see why a dishonest but rational person would engage in plagiarism. The question is, is there any plausible parallel scenario in which, if we assume, for the sake of argument, that Ms. Viswanathan is dishonest but of normal rationality, she would have plagiarized the passages in question?
I submit that there is not. On the one hand, unlike term papers and obscure academic journal articles, best-selling novels are read by a lot of people, and novels of the same sort are likely to be read by the same people. The risk of detection is therefore fairly high. On the other hand, what had she to gain? Remember, the passages in question are a miniscule part of her book and of no particular importance or salience. What could she possibly have hoped to gain by copying a few passages out of an entire book? With the risk of detection high and the potential gain nonexistent, to believe that Ms. Viswanathan engaged in plagiarism requires us to believe that she was utterly irrational.
What about the putative evidence for plagiarism? The argument consists of the assertion that no one could unintentionally reproduce 24 passages word-for-word. Well, to begin with, that isn't what the evidence is. The evidence is that there are 24 similar passages. The portions that are word-for-word the same are much shorter, the longest the 14 word example cited by Geoff. Could Viswanathan have unconsciously remembered such little snatches from another novel? Why not? This is easily within the range of human memory. Many people remember comparable portions of songs that they once heard without remembering the rest of the song or who sang it or wrote it or where they heard it. Linguists often remember facts or theoretical claims but cannot, at least off the cuff, remember where they come from. That a person with a strong literary orientation should have little snatches of other peoples' words floating around in her head is not only plausible, it seems likely. (I note that, although I know nothing about her background, her very name, which means "poetry" or possibly "poetess", suggests a literary orientation on the part of her parents.) I find it entirely plausible that Viswanathan's use of a tiny bit of material from McCafferty's book was unconscious and blameless. I could be wrong, but frankly I will not be persuaded by the bleating of publishers and their lawyers or literary critics - I want to hear from experimental psychologists who actually know something about memory.
I'm writting about this partly because I think that an innocent young woman is being unfairly condemned, but there is a larger issue at stake here too, namely the increasing privatization of our common culture. No creative work, whether scientific or literary, is the exclusive product of any single individual, or even of a large group of individuals, such as a corporation. All such works build on a tradition of thousands of years created by innumerable people, from which they draw ideas, facts, words, and expressions. It is in the nature of culture for people to make use of elements of previous work in composing new ones, whether by reciting the same facts, presenting or disagreeing with the same ideas, pursuing the same themes and plots, and using the same words and expressions. In music one piece is influenced by another, sometimes only in broad matters of style or performance, sometimes in reusing sequences of a few notes.
It is reasonable to demand that people not present as their innovation ideas that they have taken from others, and in some situations, for economic reasons, to impose restrictions like those of copyright law, but we must recognize that fundamentally everyone borrows from others and that this is normal and proper. To deny this is what leads to absurdities like the claim that the heirs to the man who coined the mathematical term googol should receive royalties from Google, or to the increasingly greedy and invasive demands of some segments of the entertainment industry for "protection" of their "rights", the latest of which is the Bush Administration's Intellectual Property Protection Act of 2006 recently introduced in Congress, which "strengthens" (makes more virulent) the Digital Millenium Copyright Act, which a report by the Electronic Frontier Foundation found to restrict free speech and stifle innovation. The idea that people should "own" sequences of 14 words or four musical notes or words pronounced the same as googol is not only ridiculous, it runs counter to the entire history of human civilization.
Disclosures: I went to Harvard. Beyond that I have no connection to either author. Prior to my birth my mother edited children's books at Random House, Ms. McCafferty's publisher. My sister-in-law is an intellectual property lawyer, but we haven't discussed this.
A post that makes some similar points: Viswanathagate.
Posted by Bill Poser at April 25, 2006 06:18 PM