Plagiarism

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Writers put words together in unique ways that express ideas. Is plagiarism — taking those ideas or words without attribution — inherently wrong? In a recent column, Stanley Fish argues that it is not (link). We are all influenced by the words and ideas of others. R.R. Reno argues, in response to Fish, that the issue is less one of theft than of creating a false impression of ability (I, II). In other words, is plagiarism an issue of theft of intangible property or lying? What does Jewish law have to say about it?

Plagiarism is forbidden according to Jewish law. The Magen Avraham (156:2) quotes a midrash (somewhat ironically sourced incorrectly as a Gemara) that someone who quotes a saying without noting its source violates a prohibition. R. Shlomo Kluger (Chokhmas Shlomo glosses, ad loc.) writes in agreement, as does the Noda Bi-Yehudah (Responsa, Orach Chaim vol. 2 no. 20). What, specifically, is the prohibition?

R. Moshe Feinstein (Iggeros Moshe, Choshen Mishpat vol. 2 no. 30) writes that students in school are forbidden to copy off each other because it is geneivas da’as, a misrepresentation. It gives the incorrect impression that the student acquired knowledge that he had not. It is lying. R. Aaron Levine (Moral Issues of the Marketplace in Jewish Law, pp. 31-35) argues that failing to properly cite sources is not just misrepresentation but also a lack of gratitude (link).

The issue of theft is a matter of debate (link). According to one view, an artist or creator possesses ownership over his creation and someone who uses it without permission is guilty of theft. According to the other view, Jewish law does not have a concept of intangible theft and only secular law prevents using a creation without permission.

In other words, there are multiple reasons that plagiarism is wrong. Lying is one of them and theft might be another.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

16 comments

  1. A little nitpick: Secular law doesn’t have a concept of theft of intangibles, either. One does not steal a copyrighted work, a patent or a trademark, it is impossible. Stealing means taking away from someone without permission, i.e., the other party no longer has it, which isn’t what happens with intellectual property. Instead, the proper verb is infringing on intellectual property. That reflects the fact that intellectual property is a limited, created right, granted by the government for the promotion of the arts and sciences.

    With all the PR campaigns of the RIAA and MPIA, and with the Sonny Bono Copyright_Term_Extension_Act, one may have missed that, but really, in secular law, no one really fully owns intellectual property, one merely has a temporary limited monopoly for its use.

    Of course, many would argue that the same is true in halakha. After all, the granting of copyright for the publication of seforim (usually to the printers, not the authors!), was always granted for a limited time, reflecting a similar understanding.

  2. Excellent point.

  3. Gil,

    Your site was down again for a while. Same error as before with a redirect to your hosting company. Can you tell us if this is being fixed or at least confirm that you are aware of the problem?

  4. Skeptic: I’m aware of the problem and the solution, more or less. Implementation is the only difficulty right now.

  5. It seems that R Moshe’s case is one where students are not copying original ideas, which would not be a problem of infringement in the first place unless mere knowledge is considered intellectual property. Thus, it may be that R Moshe held of both reasons.

  6. “It gives the incorrect impression that the student acquired knowledge that he had not”

  7. This doesn’t seem to be discussing the full academic concept of plagiarism. For example, do you think the Magen Avraham would require someone to cite an unusual source he found in another source but hadn’t discovered by himself? It doesn’t sound like he would.

  8. The larger issue is that Torah Shebaal Peh, being what it is – an oral transmission, even today where it’s all written down somewhere – lends itself, lulei demistafina, to unwitting plagiarism.

    By the time he is 25, a yeshiva bochur will have heard thousands of divrei torah – pshatim, medrashim, he’aros, chakiros, stories, maiselach – many of which he will not remember having heard. But somewhere in the recesses of his brain it will remain.

    Then, at some point he sits reviewing the Parshah Hashavua and is struck by a brilliant vort. He thinks it’s Divine inspiration. He doesn’t even remember that he heard it, or based it, on something that someone else said or repeated years earlier. He truly believes it’s his chiddush.

    Unless you write down everything you hear (and maybe even then!) you won’t be able to keep track of it all.

  9. How about the fact that we know about many cases of plagiarism in Seforim on a wide range of subjects? Although R D M Shapiro has written extensively on this issue, I would like to see his POV on the Haggados Beis Levi and whether any of the contents therein reflects the Torah of RYBS, as opposed to the Charedi side of the Soloveitchik family.

  10. It seems to me that there is also a distinction between the copying of well-known language used by an earlier mechaber vs. an attempt to pass off someone else’s work as one’s own. If the former is also a violation of “omer davar beshem omro”, then one needs to account for the fact that Rav Yosef Karo typically uses the exact language of the Rambam without attribution in his Shulchan Aruch.

  11. “He doesn’t even remember that he heard it, or based it, on something that someone else said or repeated years earlier. He truly believes it’s his chiddush.”

    That is a well known phenomenon which happens to secular academics as well.

  12. to some degree isn’t rashi a plagiarist? 97% of his perush on the torah is from the midrash or other sources, mainly midrash. he does not make this clear to the reader.

  13. “He doesn’t even remember that he heard it, or based it, on something that someone else said or repeated years earlier. He truly believes it’s his chiddush.”

    This sort of unwitting plagiarism is recognized by secular law as well, at least in the US, and a violator can be required to pay damages. George Harrison famously lost a lawsuit when a judge ruled that he was guilty of exactly this sort of plagiarism. See http://abbeyrd.best.vwh.net/mysweet.htm

  14. MiMedinat HaYam

    the rambam is also notorious for not “omer davar beshem omro”.

    there are various reasons cited by leter sources, but …

  15. Vis-a-vis Rashi and the Rambam:

    If we accept that Torah Shebaal Peh, that is Gemara and Medrash are “morashah kehillas Yaakov” then I would argue that there is no issue. They are quoting the word of God as passed down through the Mesorah.

    A novel interpretation or derivation of said word would potentially open up questions.

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