There have been a number of pieces around issues of plagiarism and copyright in the New York Times recently.  I could write a whole blog that did nothing but catalog these articles: the piece describing college student skepticism regarding the idea of plagiarism, another describing the travails of a woman hired by BMI, one of the largest performing rights organizations in the world, as she moves from town to town, trying to persuade restaurant and club owners to pay royalties for their use of copyrighted music; a third on the impact of copyright law on the fashion industry.  And then there’s literary/legal scholar Stanley Fish’s “Plagiarism is Not a Big Moral Deal”, which makes the argument that plagiarism is not a moral or philosophical issue but simply one of professional decorum. The argument restates Fish’s broader thesis that there are no pre-existing meanings, only interpretive communities that make fragile but decisive agreements about meaning.  Thus:

“ … in order to have a basis, plagiarism would have to stand on some philosophical ground. But the ground plagiarism stands on is more mundane and firm; it is the ground of disciplinary practices and of the histories that have conferred on those practices a strong, even undoubted (though revisable)  sense of what kind of work  can be appropriately done and what kind of behavior cannot be tolerated. If it is wrong to plagiarize in some context of practice, it is not because the idea of originality has been affirmed by deep philosophical reasoning, but because the ensemble of activities that take place in the practice would be unintelligible  if  the possibility of being original  were not presupposed.”

The obvious rejoinder to Fish’s essay (and Fish’s position in general) is that if plagiarism is not a moral problem, then surely one should campaign for  reform of laws and rules governing plagiarism.  After all, students can be thrown out of college, employees can be fired, artists and writers fined large sums of money if they are found guilty of plagiarism in various disciplinary contexts.  There’s no indication in the essay that Fish believes in such reform.  If one did argue for legal reform, the particular intellectual frameworks that support the current disciplinary practices and interpretive communities  would reveal themselves and plagiarism would quickly become a philosophical issue…

Or a theoretical one, at any rate.  After all, the main “philosophical” argument made in favor of intellectual property is that it’s natural that human beings claim their thoughts as their property, even when it’s equally evident  that no one can own language and that every thought has its basis in a chain of signs, events, influences which do not belong to the thinker.  The presupposition of originality that Fish speaks of is ideological: it supports the interests of a particular economic and political framework or, if you like, practice. It is necessary in order to render that practice intelligible … but at what cost? And for who’s benefit?

That discussion of plagiarism in mainstream media tends to be ideological is beyond doubt.  The first sentence of “The Music Copyright Enforcers” lets you know what is to follow: “Few things can make Devon Baker cry”.  Baker, the BMI representative is a caring, feeling individual, while those who resist paying fees to BMI are a gang of subhuman beasts who curse and threaten violence at every turn.  At no point is the idea of the public domain or fair use mentioned in the article, even though these concepts are an integral part of intellectual property law today.  Following Fish, we might argue that it’s necessary, or valid, to present copyright violators as subhuman beasts because otherwise the practice of intellectual property law would become unintelligible.  That argument has obvious weaknesses though. It ignores the power relations that allow certain parties (for example corporations that benefit from aggressive enforcement of intellectual property law) to dominate discussions of what is intelligible and what is not, and who gets to practice what. Even so, practices of imitation, labeled as plagiarism or not, continue, because in them the life of the people manifests in a somewhat autonomous way.

Unlike Fish, I do believe that there’s a need to align “disciplinary practices” such as intellectual property law with philosophical principles.  I don’t claim that this is easy to do well. But the law as it stands is already taking explicitly philosophical positions and it always has been, all the way back to the Statute of Anne with its direct basis in Lockean possessive individualism.  In In Praise of Copying, I connect plagiarism to the problem of deception since what is objectionable in plagiarism is not the borrowing of someone else’s work, but the lack of attribution.  But that’s one of the main objections to copying in general: that something is presented as something else, and that we are deceived when we mistake the copy for the original.  This was Plato’s objection to mimesis and the poets in the Republic. The main challenge to the perfect operation of reason and self-knowledge according to Kant in Critique of Pure Reason is also deception.   So plagiarism is intimately connected to very basic issues that the western philosophical tradition has struggled with since the beginning.

In his second piece on plagiarism, written in response to the many comments on the first piece,  Fish restates his objection to philosophical examinations of plagiarism:

“I don’t say, as several posters charge, that rules against plagiarism are called into question by the deconstruction (in some quarters) of the idea of originality. I introduce those arguments only in order to assert their irrelevance to any enterprise founded on the presumption of originality as both a possibility and a value. A theoretical debunking of a concept has no effect on a practice whose very shape depends on that concept’s being firmly in place.”

But the point of a theoretical debunking is to make a concept that appears to be “firmly in place” less so. And if the “very shape” of a particular practice “depends on that concept’s being firmly in place”, dislodging it will at least potentially lead to a change of practice.  It’s worth a shot, anyway.

Fish’s rethinking of the concept of practice is key to understanding his work.  He develops his ideas on this topic most fully in Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (1989). A lot of what seems paradoxical in these New York Times op ed pieces has to do with the very specific meaning that Fish assigns to words like morality, philosophy, theory and practice.  At the same time, as Alan Jacobs notes in his excellent review of that book, there’s something wrong with how Fish thinks about practice.   Everything is practice – fine. The world is a multiplicity of unstable but significant constellations of practice and practices — sure. With plagiarism, we’re talking about a number of different practices, even when we focus on the problem of student plagiarism in the university, as Susan Blum notes in her new book on the topic.

The internet for example has changed the practice of teaching and learning in the university.  We can rigidly stick to a particular framing of education and the concepts that enable it, such as plagiarism, originality etc., but when that framing is undermined by the practice of consulting iPhones in the classroom, we have the option of abandoning or at least revising our values and the concepts which inform our practices.  This might involve teaching methodology, practices of citation more, as Fish notes in his second column. But also a greater acceptance of competent but unattributed use of other people’s work – since if the goal is learning, the intrusion of the internet into the university classroom is, amongst other things, the intrusion of a different practice of learning. That practice comes more naturally to many students today than the practices of citation that governed the Gutenberg/book era university.  So: there’s a conflict of practices.  Theory has a role in illuminating and resolving that conflict.

Mimesis is a concept that Fish doesn’t talk about much in his work, even though it’s pervasively present.  He loves to use examples from sports to illustrate his arguments about practice.  Practice is mimetic because it’s about the repetition of a form shaped by rules.  Sports are an intensely mimetic activity, as we know from reading the two great theorists of play, Huizinga and Caillois. But sports are not a great model for thinking more broadly about practice since the explicit agreements about rules that make them possible don’t exist to the same degree in other aspects of the human world, or the natural world.  Practice – and mimesis – are much more chaotic outside of the realm of sports, and it requires something like Bruno Latour’s actor-network theory to track the way a practice evolves.  Or Mahayana Buddhism, another antifoundationalist practice – but I won’t go into that right now.

The problem of practice is a profound one.  It’s not a coincidence that many of the debates around the nature of practice today concern copying.  This is because a very particular way of thinking about copying dominates our legal, economic, political and aesthetic systems — yet the practices of everyday life, the various mimetic modes by which Hardt and Negri’s multitude are constituted, continually exceed those systems.  That surplus is reappropriated through intellectual property law and various kinds of taboos on mimetic activity, generating official or disciplinary practices. Yet the practices of the multitude always reappear again, in one form or another …