Re-Thinking Plagiarism as Unfair Competition: Presented at CCCC, Chicago, IL, 24 March 2006

Community Standards Not Ownership

This is substantially the same text I presented as a participant in the panel, “Plagiarism and Community,” with Lauren Fitzgerald and T. Kenny Fountain. A review of the panel, which includes excellent summaries of Lauren’s and Kenny’s papers, can be found here. This was one of my first ventures into the fray of conference presentations, and I am thankful to have had two very generous co-presenters and a wonderful group of engaged auditores who provided constructive commentary and feedback.

In her article, “The Economics of Authorship: Online Paper Mills, Student Writers, and First Year Composition,” in College Composition and Communication, our moderator, Kelly Ritter argues that in re-thinking plagiarism and how we should respond to the so-called plagiarism “crisis,” we must take a closer look at the circumstances that lead some of our students to cheat by purchasing papers from on-line paper mills. She observes that, “In order to truly understand how and why students continue to engage in dishonest practices in the composition classroom, we thus must seek to understand how and when students see themselves as authors; how students see themselves as consumers, not just in the purchase of a college education, but also in a society defined by anonymity, convenience, and privacy; and how students reconcile the warring concepts of author and consumer in the space of their own writing.” Thus, in Ritter’s analysis, “these occasions of whole-text plagiarism may fail to ‘patch’ together source material [in the sense of Rebecca Moore Howard’s definition of patch-writing], but they still show a lack of recognition on the students’ part that authorship is valuable and that published writing is more than a product for the taking.” Ritter’s insight is valuable because it recognizes that even deliberate cheating is a strategic choice that students make based on a weighted analysis of “interconnected economic, academic, and personal needs,” and reveals how an emphasis on “ownership” and writing as property can contribute to an environment in which students come to view writing as a commodity and themselves as consumers, rather than as producers and authors.

Given that whole-text plagiarism is becoming an increasingly accessible and potentially useful strategy, and that talking about plagiarism as an infringement of ownership rights may only exacerbate the conditions that lead students to take advantage of that strategy, what are some of our alternatives? Taking Ritter’s advice as a starting point, I would like to explore the potential utility of unfair competition, as opposed to copyright, as a legal model for exploring the problems plagiarism presents within the academic community and for dealing with and perhaps even solving some of those problems. Some of you may be asking why we should even be thinking about legal models at all, since the copyright paradigm seems to have outlived its usefulness. That question has a number of possible answers, a few of which I would like to put forward here. First, I think that, as Danielle De Voss and Annette Rosati suggest in their 2002 article “‘It wasn’t me was it?’ Plagiarism and the Web” in Computers and Composition, “focusing on issues of plagiarism through the lens of intellectual property” helps students to understand why plagiarism is wrong and how it relates to “real-world” issues outside of what students may perceive as the somewhat artificial environment of the classroom. Second, legal models, particularly the unfair competition model, can be useful in generalizing the ethical and religious approaches that some smaller, private institutions use to conceptualize plagiarism within their communities into the more heterogeneous, environment of the state-sponsored institution. Here I’m thinking about Lauren’s 4C’s presentation last year on g’nevis das and Yeshiva University’s use of Jewish law as a foundation for conceptualizing plagiarism as a breach of community ethics or responsibilities. Finally, I think that legal models provide useful analytical frameworks for thinking about an issue like plagiarism because they make us ask questions about what sort of harm is caused by a particular activity, who is injured, how should that activity be regulated, and who should do the regulating.

In developing and articulating what I have come to think of as my “plagiarism thought experiment,” I would like to begin with a brief explanation of what I mean by unfair competition and a discussion why it is initially so attractive as a model for thinking plagiarism. Then I want to move on to an exploration of some of the answers that we get to the questions I’ve just stated when we think through plagiarism as a form of unfair competition. Finally, by turning the question of unfair competition back into a legal one in the context of looking at how the on-line paper mills advertise their services to students, I want to examine the potential limits of regulation and enforcement as the means of dealing with academic dishonesty and suggest some possible alternatives that focus on community building and engaging students in setting community standards instead.

The general heading “unfair competition” covers a variety of legal causes of action from misrepresentation to the more familiar forms of trademark infringement and counterfeiting. At its heart, unfair competition law is designed to protect consumers by ensuring that the information that circulates within the marketplace–in the form of brand names and advertising–is accurate and not misleading. Thus, unfair competition law envisions the marketplace as a community within which certain kinds of activities are restricted or forbidden so that the community as a whole–both producers and consumers–may benefit. One of the oldest forms of unfair competition is “passing off” or misrepresentation regarding the source of one’s product. As a cause of action, passing off comprises the act of using another’s label or mark to designate the source of your goods. So, for example, if I were selling lemonade on the side of the road using the brand name “Minute Maid,” I would be “passing off” my lemonade under a mark owned by the Coca-Cola company, implying that the Coca-Cola company was the ultimate source of my lemonade. “Reverse passing off” is a less-common, but nonetheless viable form of unfair competition that involves the reverse of this scenario. That is, to return to my lemonade example, if I were selling “Minute Maid” brand lemonade as “Robin’s Homestyle Lemon Refresher,” I would be guilty of “reverse passing off.” The potential parallels between this latter situation and the case of whole-text plagiarism should now be fairly clear. In essence, a student who “passes off” the work of another as his or her own engages in a form of misrepresentation regarding the source of that work.

In proposing the unfair competition model as a framework for thinking through some of the issues presented by whole-text plagiarism, I am of course mindful of the fact that it still relies on a marketplace, consumer-driven theory of creative textual production. I would like, however, to delay addressing that concern for a moment because I think, in spite of this problem which it shares with the copyright or ownership model, unfair competition still offers distinct advantages that the ownership model does not. First, the unfair competition model places the student squarely in the place of the producer, the author who is responsible for his or her work and how it is received by consumers in the literary marketplace. The ownership model puts the student in the position of a consumer who has misused or misappropriated work produced by another. Second, the focus of the inquiry in a reverse passing off situation centers on the act of misrepresentation rather than the act of misappropriation. This may seem like a very fine point of distinction, but in application, I think it makes a real difference in how we think and talk about whole-text plagiarism. In the case of a student who has paid top dollar for a custom-written essay, she may have a difficult time understanding how an arm’s-length commercial transaction results in an act of misappropriation. That same student should nevertheless be able to understand that misrepresenting the source of her work is a deliberate act designed to deceive his or her audience regarding the source of work that she has, in a sense, “produced.” The breach of trust takes place between the student author and her audience, rather than the student consumer and the author whose work she has misappropriated. So, to return to the question of whether the marketplace has a place in the classroom, I think that, even though we still need to be sensitive to how academic discourse commodifies writing when we are trying to think through the plagiarism issue, the unfair competition model, unlike the ownership model, constitutes the marketplace as one in which students are rhetorically re-situated as authors and producers, as well as consumers.

Because it shifts the focus from the student as a consumer to the student as an author, the unfair competition model also produces some very interesting answers to questions such as: who is injured by whole-text plagiarism? how should we regulate the integrity of academic discourse in the classroom? and who should do the regulating? When we shift our focus away from the relationship between the student author and his source material and onto the relationship between the student author and his audience, the identities of the injured parties shift as well. As consumers of the student author’s work, teachers and peers who put time into grading and reviewing that student’s work are injured by his misrepresentation. They spend time providing feedback that the student does not care about or take into consideration. Further, because the unfair competition model conceptualizes the classroom as a community of producers rather than a community of consumers, rules against plagiarism come to look much more like the standards governing fair dealing and ethical business practices among professionals, as opposed to arbitrary rules regarding how commodified writing can be used and exploited. Consequently, those students who do their own work are injured by those who do not because the class as a whole is no longer competing on a level playing field. Notice, too, that the student doing the passing off is the author who “counts,” here, not some faceless person whose work may or may not have been “misappropriated” as such.

Answering the question of who is injured provides some insight regarding what answers we might give to the question of how prohibitions against plagiarism should be enforced and regulated. In the world of unfair competition, federal and state agencies that oversee trade and consumer welfare take responsibility for prosecuting egregious cases of fraud and misrepresentation, but for the most part, the injured parties themselves, the consumers and the competitors, regulate the marketplace through private causes of action. Most if not all of us in this room have been injured by student plagiarists, spending time grading a paper or encouraging a student to submit an exceptional essay to a conference or contest, only to find that we’ve been the “victims” of a whole-text plagiarist. This is real harm, but it is not the sort of harm we normally focus on when we talk about the harm academic honesty policies are intended to prevent. Instead, we focus on the harm done to the community, in the form of devalued academic standing of institutions with a “plagiarism problem,” the diminished integrity of academic discourse, and the injury done to students who “play by the rules.” Although I am not in any way suggesting that we should either abandon all efforts to ensure compliance with academic honesty policies or, at the other extreme, foster a panoptic environment in which students are encouraged to spy-upon and report their peers, I do think we need to reconsider institutional policy that isolates plagiarism as a “composition issue” and forces composition teachers to shoulder the primary responsibility for policing an activity that may or may not affect them personally for the benefit of an entire university or college community.

So how do we ensure compliance with prohibitions against plagiarism? To answer this question, I would like to re-situate unfair competition within a legal context that highlights what I perceive to be the limitations of regulation and enforcement, either vertically through detection and prosecution or horizontally through private causes of action, as the primary means for resolving the plagiarism crisis. Drawing again upon Kelly’s article, I want to look at how unfair competition law has failed to put a stop to rampant fraud and misrepresentation in the paper-mill market itself. In her piece, Kelly notes how paper mills use misleading advertisements to lure students to their websites and to compete with one another in the market for student business. Even though such activities may very well give rise to a cause of action on the part of students and competitors, no one seems to be concerned about what I’ve called horizontal enforcement because all parties mutually benefit from the use of misrepresentation as a marketing strategy, or at the very least, they do not really see the misrepresentation as harmful. As for top-down or vertical enforcement by government agents, the problem of on-line misrepresentation and fraud has outstripped the resources that are available to detect and prosecute it, so federal and state officials are redirecting their resources into education efforts that ultimately place the responsibility for detection and enforcement back onto consumers and competitors.

Regulations of any sort really only work as regulations in an environment where those who are subject to regulation and those who benefit from it perceive the regulated activity as harmful. To clarify, that means that we can only effectively enforce plagiarism in an environment where students perceive plagiarism as both wrong and harmful. Although arguments do exist in favor of the position that we can create such a perception through regulation and enforcement, I think here once again looking at legal models–the war on drugs, securities regulations, anti-abortion legislation–shows the difficulty, and I would argue, essential futility of a program that focuses on detection and enforcement at the expense of education and prevention.

I think that, ultimately, my plagiarism thought experiment confirms the conclusion–already reached by Rebecca Moore Howard and many others–that we need to get students to think about plagiarism and academic honesty as issues related to professionalism and their responsibilities as members of a professional community. However, because most of our students do not and probably will not ever think of themselves as “professional” writers, even though we hope that they come to value writing as an essential and important component of their professional skill set, that means taking our discussions of plagiarism beyond the composition classroom. As a model for re-thinking plagiarism, unfair competition gives us a vocabulary for talking about plagiarism that does not rely on a specialized discourse specific to composition pedagogy, but rather links the fundamental acts that constitute plagiarism to an interdisciplinary discourse of fair and ethical professional practice. Not incidentally, we can use that vocabulary to argue that reforms we have already undertaken in the composition classroom can be generalized to the institution as a whole in order to change the way in which students understand their role as productive agents and not just consumers in the education process.

When I began I promised that, in addition to suggesting why re-thinking plagiarism as unfair competition is a useful exercise, I would also give some concrete suggestions about how we can make use of the results of that thought experiment. Analyzing plagiarism as unfair competition gets us thinking about students as owners and producers rather than consumers of writing. It suggests that we can reduce the utility and attraction of whole-text plagiarism as a strategy for classroom production and encourage students to understand their responsibilities as authors by requiring students to take ownership of their work in as many contexts as possible. For example, students broaden their understanding of audience by presenting their work to peers for review and in organized, conference-style presentations. They take ownership of their writing through revision and by assimilating it into individual portfolios as well as into group and class publications. As a community of producers rather than consumers, students should also be encouraged to set the standards by which they compete with one another. We should help them to understand how classroom standards relate to the standards by which professional communities regulate themselves, and the consequences that result from the community’s failure to enforce those standards. In her article, Kelly talks about how she had her students study and write about on-line paper mills, asking them to think about how the paper mills participate in a culture of dishonesty. As an attorney, I can speak to my students from personal experience about what it’s like to be part of a community that others view with distrust, if not outright disdain, because they perceive it as unethical, often dominated by cheats and liars. I also think that students should understand that they have to shoulder part of the responsibility for enforcing academic honesty policies by refusing to encourage cheating and also by preventing it, through official as well as unofficial channels. Finally, I think we need to encourage our colleagues both within and without the English department to take a long hard look at how their own practices may foster an environment in which students are disenfranchised and relegated to the status of mere consumers in the education process.