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The common law elements of fraud are (1) a false statement of a material fact, (2) known to be untrue by the person making the statement, (3) intended to be relied upon (4) and which relied upon by a third party (5) to that person's detriment.
Posner maintains that copying becomes plagiarism when this element of fraud is satisfied. In legal briefs and opinions, no one expects originality. There is no reliance upon the statements being original nor detrimental reliance.
The same is true of text books. Originality is not expected by the reader or by other authors. In fact, most texts are the result of institutional corporate authors. The entire point of text books is to accumulate the stated wisdom of others, not blaze new ground. Consequently, unless one is wholesale copying from the work of someone else, there is no fraudulent element to some copying and therefore no plagiarism.
But for dissertations, student papers and other academic research and writing, originality is expected. Copying of the work of others does constitute a misrepresentation which is relied upon. Universities, professors, even high school teachers, suffer to their detriment as they try to award grades. But even more so, fellow students suffer.
The same is true in novels that are copied from others. But to Judge Posner, it is not the reader who suffers the detriment. Rather it is the author whose work is copied and the competing authors who must try to sell their original books in the same marketplace.
Judge Posner also has some interesting ideas on those who use the names of prominent people or authors to sell their books, such as the rumors about Margaret Truman. In a later post, I'll discuss Ms. Truman, the continued books of Robert Parker, and the plethora of books carrying the James Patterson name.
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