Request to Readers for Help on Copyright Violations and Plagiarism (9/6/14)

I write today to note that I am aware that certain other tax professionals have published works (such as blogs) that have copied or paraphrased, often with minimal changes, significant portions of my blog entries without quotations or attribution of the source.  Such or paraphrasing copying can be either or both copyright violations or plagiarism.  I know that some readers of this blog read other materials available on the web and thus might have some opportunity to identify such behavior and advise me of it either by comment on this blog or by email to jack@tjtaxlaw.com.

I think it helpful to give some short definition of the key terms -- copyright violations and plagiarism.

Copyright Violations

Copyright violations are violations of the U.S. law governing copyrights.  The Wikipedia Entry, here, titled "Copyright law of the United States of America," offers a good summary of the U.S. law, with appropriate links for further study.

Copyright law law is complex,  but in part relevant to this request for help, the key to copyright law  is that ideas are not protected but expressions of ideas are protected.  "Others are free to express the same idea as the author did, or use the same facts, as long as they do not copy the author's original way of expressing the ideas or facts."

As Judge Posner explains in his book, The Little Book of Plagiarism, 12-13 (Knopf Doubleday Kindle Edition 2009):

Copyright law does not forbid the copying of ideas (broadly defined to include many features of an expressive work besides its precise words or other expressive details, such as genre, basic narrative structure, and theme or message), or of facts. Only the form in which the ideas or the facts are expressed is protected.

Further from the Wikipedia link:

A paper describing a political theory, for example, is copyrightable; it may not be reproduced without the author's permission. But the theory itself (which is an idea rather than a specific expression) is not copyrightable. Another author is free to describe the same theory in their own words without infringing on the original author's copyright. In fact, the second author does not even need to credit the original author (although failing to credit the source of an idea may be plagiarism, an ethical transgression).

One way subsequent authors attempt to avoid copyright violations is to paraphrase, so that, they hope, they are merely expressing the idea (not copyrightable) and not the earlier author’s expression of the idea (copyrightable).  But, as Wikipedia notes, here, in its entry on Paraphrasing of copyrighted material:

Paraphrasing of copyrighted material may reduce the probability that a court will find that copyright has been infringed; however, there have been many cases where a paraphrase that uses quite different words and sentence structure has been found to infringe on a prior work's copyright. 

The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case. 

 * * * * 

A paraphrase is a restatement of the meaning of a text or passage using other words. Equivalent concepts apply to images or music. In most countries, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed. A loose paraphrase of a portion of a work may therefore be published without violating copyright. If the paraphrase is so different that the expression in the derivative work has no similarity to that of the prior work, there is no infringement. 

* * * * 

Wainwright Securities was engaged in preparing in-depth analyses of public companies, and selling them to major investors. The Wall Street Transcript Corporation, publisher of the Transcript magazine, began to publish abstracts of the Wainwright reports. In Wainwright Securities v. Wall Street Transcript Corp (1977) the U.S. Court of Appeals for the Second Circuit noted that "news events" cannot be copyrighted, but found that "the Transcript appropriated almost verbatim the most creative and original aspects of the reports, the financial analyses and predictions." The court said, "What is protected is the manner of expression, the author's analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words and the emphasis he gives to particular developments." An example of very close paraphrasing in this case was: 

Original: "And second, he says that likely to aid comparisons this year was the surprisingly limited extent to which Fiber Divisions losses shrank last year." 

Paraphrase: "The second development likely to aid comparisons this year was the surprisingly limited extent to which the Fiber Division's losses shrank last year."

To bring this home to a tax crimes setting, the following is an original copyrighted expression from my book, Federal Tax Crimes (Townsend, John A., Federal Tax Crimes, 2013, p. 763 (February 5, 2013). SSRN: http://ssrn.com/abstract=2212771, which had been carried from an earlier draft into the Tax Crimes publication coauthored with Larry Campagna, Steve Johnson and Scott Schumcher (LEXIS-NEXIS 2008), here.

Recommending Criminal Prosecution. 

When CI concludes the investigation, it has two choices.  First, and the best for the taxpayer, CI can decline criminal prosecution and refer the case back to Examination.   Second, CI can forward the case to DOJ Tax with a recommendation for criminal prosecution.  I focus on this second alternative. 

CI recommends criminal prosecution when the case is otherwise within its priorities and “the evidence is sufficient to indicate guilt beyond a reasonable doubt; and a reasonable probability of conviction.”  [FN: IRM 31.4.2.3(1) (7/2/90)] Typically, of course, CI will not have devoted investigative resources to a matter not within the priorities.  But, if they have done so and have a substantial investment in the matter, CI may be inclined to recommend prosecution of a case only marginally within its priorities.  It then becomes the lawyer’s job to convince CI that it should not prosecute despite this investment of time.  Failing convincing CI of that, the advocate may have a better opportunity of focusing this type of argument at the later decision points (DOJ Tax and, conceivably, the United States Attorney) who will have neither a time nor an emotional commitment to the case and can take a broader view of the Government’s priorities,

Consider this version by another author which, given the subject of the article, I cite at the end of this blog:

Recommending Criminal Prosecution 

When CI concludes the investigation, it has two choices: First, and better for the taxpayer, CI could decline criminal prosecution and refer the case back to Examination.  Second, CI could forward the case to DOJ with a recommendation for criminal prosecution.  Let’s focus on the second alternative. 

CI recommends criminal prosecution when the case is within its priorities and “the evidence is sufficient to indicate guilt beyond a reasonable doubt; and a reasonable probability of conviction.”  IRM 31.31.1(1).  Typically, of course, CI will not have devoted investigative resources to a matter not within its priorities.  But to the extent that CI has done so, it may nevertheless be inclined to recommend prosecution of a case that is only marginally within its priorities. 

It then becomes the attorney’s job to convince CI that it should not prosecute despite this investment of time.  If unsuccessful, all hope is not lost.  Indeed, the attorney may have better luck convincing DOJ Tax (and, conceivably, the Assistant United States Attorney), who will neither have the same time or emotional commitment to the case as CI and can take a broader view of the government’s priorities.

[JAT Note: This author gives no credit to the source from which the author drew, even with the difference in the cited source in the IRM (I put the IRM provision from my Federal Tax Crimes publication above; the IRM provision in the Tax Crimes publication is the same as cited in the above quote, so it appears that the direct quote is from the Tax Crimes publication).]

One can make an argument that the second quote is a copyright violation of the first (which as noted, appears in two copyrighted publications, although the direct source he apparently used was the Tax Crimes publication)..

Plagiarism

Plagiarism is a different concept than copyright violations, although at core they have to do with the improper use of other person's intellectual work in a setting which ascribes the work to the copying or plagiarizing author.  See Wikipedia entry here.

Plagiarism is the "wrongful appropriation" and "stealing and publication" of another author's "language, thoughts, ideas, or expressions" and the representation of them as one's own original work. 

* * * * 

Plagiarism is considered academic dishonesty and a breach of journalistic ethics. It is subject to sanctions like penalties, suspension, and even expulsion. 

Plagiarism is not a crime per se but in academia and industry, it is a serious ethical offense, and cases of plagiarism can constitute copyright infringement.

The last concept is important.  Plagiarism may exist independently of a violation of copyright law.  As Judge Posner says in his book, The Little Book of Plagiarism 12 (Knopf Doubleday Kindle Edition 2009),

There is considerable overlap between plagiarism and copyright infringement, but not all plagiarism is copyright infringement and not all copyright infringement is plagiarism.  For that reason, the example above, in addition to being a probably copyright violation, almost certainly is plagiarism as well.

The same issue of paraphrasing is present as with copyright violations.  For examples of good and bad paraphrasing in a plagiarism context, see Academic Integrity for MIT: A Handbook for Students, here.

And, of course the proper form even when paraphrasing is to cite the source(s).  See Understanding Plagiarism and Paraphrasing: A University of Virginia Honor Committee Supplement, here.

So, probably the same analysis would apply in the determination of whether the second quote above plagiarizes the first quote.

Finally, I also found this short and enlightening article on ethical issues in plagiarizing in articles:  Martin A. Cole, I Wrote this Article Myself, reprinted by the Bench & Bar of Minnesota (July 1993, here.  Key excerpts:

Recently, the Director's Office issued an admonition to an attorney who, in preparing materials for an educational seminar, plagiarized substantial portions of the work of an attorney from another firm without attribution. Fifteen months earlier, an attorney was issued an admonition by a panel of the Lawyers Professional Responsibility Board on almost identical facts. While two non-public lawyer discipline cases hardly constitute a major trend, it may be an opportune moment to review these matters and a lawyer's professional responsibility obligation for personal honesty. 

* * * * 

There is always a balancing in fashioning the correct sanction in any lawyer discipline case. The interests of the public, other members of the bar, and the courts must be weighed, as must the "human"  elements unique to each individual respondent. In Minnesota, this balancing thus far has resulted in private discipline in two plagiarism cases, but both respondents were remorseful and had otherwise spotless reputations. The Lawyers Board panel which issued the first admonition stated clearly that it was seriously concerned about the offense of plagiarism. The Director's Office believes that plagiarism adversely reflects on an attorney's basic honesty, and should always result in discipline. Public discipline still may be appropriate on some future set of facts, such as where the benefit available to the attorney is greater.

The second quote which I above asked readers to compare to the first quote from my book is: Michael DeBlis III, Anatomy of a Criminal Tax Case: From Investigation to Prosecution (6/12/14), here (as viewed 6/18/14 and 9/6/14).

Addendum 9/7/14 2:55 pm:

I just viewed the above blog entry on 9/7/14 and find that, apparently in response to my original posting yesterday, Mr. DeBlis has revised the entry to indicate quotes and attribution, although his attribution is:  Tax Crimes, Townsend, Jack, Lexis Nexis, 2008.  That is not the correct attribution since that publication's authors are John Townsend, Adjunct Professor, University of Houston Law Center Larry Campagna, Adjunct Professor, University of Houston Law Center Steve Johnson, E.L. Wiegand Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law Scott Schumacher, Assistant Professor of Law, Director, Federal Tax Clinic & Acting Director, Clinical Law Program, University of Washington School of Law.  As noted above, that particular portion of the Tax Crimes books was drawn from an earlier version of my Federal Tax Crimes book (which has remained the same in the later versions of the Federal Tax Crimes book).