Mayhew-Hite Report - Volume 9 Issue 1 (Student Spotlight)

The problem of plagiarism is one that threatens scholastic integrity everywhere. [2] Whereas most people believe that plagiarism is the offense taken most seriously by academic institutions, “thoughtful observers have decried the willingness of colleges and universities, focused on the economic bottom line, to make excuses for student plagiarism and other bad practices.” [3] This observation, while stunning, requires scholars, administrators, copyright owners, and even students to take a more meaningful look at the ways in which copyright infringement through plagiarism might be prevented. If school administrators are not willing to perform the task with 100% force, it will be left up to someone else to enforce copyrights. [4] The only other logical person with anything at stake in such a matter is the copyright holder himself. As a result, it is necessary to ensure that the copyright owner is able to prevent or redress plagiarism in the most efficient manner possible. [5]

While scholars usually associate plagiarism with copyright law, there is no actual doctrine in effect. [6] In the past, plagiarism litigation has proceeded primarily under the Copyright Act, but principles of plagiarism can be found in trademark’s Lanham Act. [7] Experts have increasingly suggested alternative dispute resolution in many areas of law in recent years, and the field of intellectual property, and especially copyright, is no exception. [8] While some legal scholars believe that the steps are not yet sufficient to solve the dispute resolution needs of all parties involved, [9] it is important to note that a process of reform is, in fact, underway. [10] Jurisdictions and copyright interest holders are pushing this reform by internal mechanisms such as Digital Rights Management, [11] as well as industry-specific plans such as the Lemley/Reese Administrative Dispute Resolution Proposal. [12] While each of these plans or practices seeks to curb the illegal use or dissemination of copyrighted material, one scholar states a belief that each falls short because it fails to address some specific characteristic of copyright law. [13]

In the modern world, the popular topics regarding copyright pertain to those situations in which a person distributes some copyrighted material illegally to other people, but makes no claims about having created the copyrighted material. [14] Plagiarism, however, is different. It is a unique form of copyright infringement because it usually involves only educational, as opposed to commercial, interests on the part of the plagiarizer. [15] Plagiarism goes against the honor code of any respectable academic institution or organization. [16] The fact that academic institutions have had to specifically label plagiarism as a cause for judicial hearing is indicative that it is not the same as most legal causes of action. Plagiarists are generally not using copyrighted material for the purpose of gaining an economic benefit, but rather to gain credit. [17] Because the students do not have cash flowing in from their illegal copying, they are inherently different from those parties that post copyrighted material online in an effort to gain revenue from having people view it.

It is common knowledge that students are not as solvent as the larger corporate entities that commit the various forms of copyright infringement. As a result, there is little to no monetary incentive for a copyright holder to prevent a student from passing off his or her works as its own. The byproduct of this flawed system is both a dilution of the value of a copyright, [18] as well as the continuation of plagiarism within educational fields. [19] This harm is comparable to that of dilution in the field of trademark. [20] When more people are exposed to something, such as copyrighted material, than should be so allowed under equitable principles, the material “diminishes in strength or lessens in value.” [21] It does not seem as unique or important as it once did because the plagiarizer has disseminated it to more people than the copyright holder knew or intended. Additionally, the source of origination of the idea may carry as much weight as the idea itself and it is, therefore, harmful to both the originator and society as a whole. [22] Some additional steps must be taken beyond simply providing causes of action in litigation for copyright infringement. [23]

Because the damages created in the event of plagiarism would be nearly impossible to quantify for purposes of a judgment, an alternative form of dispute resolution would be extremely beneficial to both the copyright holder and a society that seeks to place a monetary value on commodities. [24] First, there needs to be some sort of method of establishing that plagiarism actually occurred. Part I of this note will outline the process of determination, with subsections addressing how to go about establishing plagiarism for different types of organizations. The note will first examine plagiarism in the educational setting, followed by plagiarism in the business and nonprofit sectors. Following this step, a mandatory meeting of some form would occur in which both parties would be able to present evidence of damage or lack thereof caused by the plagiarism. Part II of this note will explore the benefits of alternative dispute resolution practices over litigation, with the different alternative dispute resolution methods described in individual subsections. The note will outline the arbitration, negotiation, and mediation fields of alternative dispute resolution. After the parties have reached a conclusion regarding damages suffered by the copyright holder, they next must determine the best way to remedy those damages. While monetary compensation may be the best mode of remedy, there are alternative methods which provide options for the complaining party. Part III of this note will examine the process of remedies, with different options explored in the subsections. The note will outline the monetary remunerations, injunction, and retributive activity methods of compensation. Rather than monetary compensation for plagiarism, the best mode of compensation for damages is a combination of injunction followed by a retributive activity that the parties deem appropriate.

The following sections illustrate the various settings in which an act of plagiarism may occur. Because a full trial for a case of plagiarism would be inefficient in the pursuit of a plagiarism claim, as described above, these settings have, in the past, simply gone either unnoticed or unaddressed in their plagiarism activities. [25] A copyright holder, however, should have the right to pursue a plagiarizer, even if they come from an area where plagiarism is usually handled in-house, such as at scholastic institutions. Because the risk of copyright infringement is expanding with the ever-increasing availability of information, the traditional forms of plagiarism protection are no longer sufficient. [26] While tradition has its place, when the world evolves the law must evolve as well. [27]

Plagiarism does not necessarily violate copyright laws. One source explains this seeming contradiction as a sort of dichotomy that depends on whether or not permission was given in the first place: “[i]f the expression's creator gives unrestricted permission for its use and the user claims the expression as original, the user commits plagiarism but does not violate copyright laws. If the original expression is copied without permission, the plagiarist may violate copyright laws, even if credit goes to the creator.” [28] This partial definition of plagiarism, while helpful to understand its relation to the larger scope of copyright law, does not seem to be in accord with a previous part of the explanation that states a plagiarism only occurs when one engages in “[t]he deliberate and knowing presentation of another person's original ideas or creative expressions as one's own.” [29] It is a simple tautology that one cannot both give credit to the creator and present something as their own. This tension within the definition highlights the difference between plagiarism and traditional forms of copyright infringement. [30] Whereas a copyright infringer may admit to the original copyright and simply claim that their work is different, the plagiarist necessarily denies or omits the existence of the original copyright in the first place. [31]

As a possible remedy to the situation in which the scholastic institution is not adequate to handle a plagiarism case, a copyright holder could pursue a declarative judgment that an act of plagiarism has occurred and must be redressed in some way. To obtain this judgment, the rights holder must present evidence that an infringement has occurred in the first place. [32] The standard as set out in the Declaratory Judgment Act is “the dispute must be definite and concrete, touching the legal relations of parties having adverse legal interests; the dispute must be real and substantial and admit of specific relief through a decree of a conclusive character.” [33] This evidence arises in the areas of education, business, and non-profit organizations, as outlined below. [34] Once a copyright holder has obtained his or her declarative judgment, he or she may pursue the avenues of alternative dispute resolution presented in Part III of this note. The Declaratory Judgment Act indicates that the dispute must “admit of specific relief.” [35] In order to obtain that relief after the parties have concluded their chosen form of dispute resolution, the restitution may take several forms, outlined in Part III of this note.

Plagiarism cases occur often in the scholastic setting. [36] Students with little experience in a given field attempt to gain recognition for themselves by taking shortcuts and simply copying another’s work. Additionally, plagiarism cases arise when the student is either rushing or is unfamiliar with the proper citation procedure, and so they neglect to cite where their information has come from. [37] In spite of their seemingly benign intentions, they have committed plagiarism by not citing their source. [38] The understanding of what actually constitutes plagiarism varies across cultures. [39] These variances across the world only reinforce the need for the legal system in the United States to solidify what constitutes plagiarism and how it will ultimately be addressed if found. With computer systems and the advent of the Internet, plagiarism now transcends borders with incredible ease. [40] The law of the United States must adapt to keep pace with these changes.

It is possible that some cases of plagiarism have gone undetected. [41] In recent years, however, with the advent of computer systems, it is much easier to discover online whether or not a student has simply plagiarized a copyrighted work. [42] When a case of plagiarism is discovered, the next step is usually some sort of hearing within the judicial system of the institution, followed by some sort of penalty if the judicial system determines that the student has plagiarized. [43] The punishments can be extremely harsh, including immediate expulsion from the institution. [44] As previously stated, however, there is a possibility that the administration of a given institution may not want to pursue such proceedings or punishments because there is the possibility that it will reflect poorly on the institution as a whole. [45] Because of the risk that institutions may cover up instances of plagiarism if they are left to conduct an internal investigation and judicial process, it is up to the copyright holder to push for the examination of the case by a judge. This could be achieved by allowing the copyright holder to seek in court a determination that infringement had occurred, without having to incur the expense to pursue traditional litigation. The evidence the judge uses to make a determination should be anything related to whether or not the student has plagiarized. [46] This is included but not limited to the original copyrighted work, the plagiarized work, any sort of institutional proceedings, such as Honor Code proceedings or other judicial hearings, and the testimony of both the copyright holder and the plagiarizing party. Based on the weight of this evidence, a judge can determine whether or not an act of plagiarism occurred, and allow the parties to move forward with arbitration, negotiation, or mediation, or any other type of non-litigation proceeding that the copyright holder wishes to institute.

Once the court has established that there has been some sort of copyright infringement in the form of plagiarism, it should be the right of the copyright holder of the property in question to pursue a declarative judgment against the infringer. As a result of this judgment, the best course of action would be to allow the copyright holder their preference of methods of alternative dispute resolution. [47] The copyright holder is the one that must have the preference because it is his or her right that the plagiarizer has infringed. Additionally, a plagiarizer that has just had a negative declaratory judgment issued is likely to choose a totally improper forum given the facts of the specific case, or fail to submit a choice for forum at all. [48] It should be up to the copyright owner, as the pursuer of the case, to make the choice in the same way that a plaintiff chooses the jurisdiction in which to institute its litigation.

Of the three situations in which plagiarism might occur outlined in this section, this setting is likely the most difficult to prove or otherwise deal with for the copyright holder. [49] This is because the plagiarizer in the business setting does not have the looming administration above them watching their every move as does the student at the educational institution. [50] While it is true that businessmen and women have bosses looking over their shoulders, those bosses often promote, rather than discourage, behavior that will get them a step ahead. Additionally, in the business context there is little to no governmental oversight of individual acts of plagiarism. [51] It has become evident today that the government and the SEC in particular have far bigger concerns than monitoring the use of every single idea or business model. [52] As a result, these sorts of violations fall through the cracks. Bringing the resolution of these disputes down to a micro level, or individual alternative dispute resolution, has several advantages. It prevents these types of infringement from occurring, it redresses wrongs done, it allows corporations to devote resources (though they are already few) away from self-policing, [53] and it frees the government to worry about larger issues.

It is important, in this setting, to distinguish between those copyright infringers who do so to make money and those who simply steal another’s ideas and try to pass them off as their own for credit or other nonmonetary benefit. [54] The latter is the more traditional form of plagiarism. [55] The former infringers are often dealt with effectively in litigation, and therefore need not be discussed here. [56] It is the infringers who use another idea and pass it off as their own, either to gain praise or distinction in their jobs or to further some other interest, that must be dealt with by declaratory judgment and alternative dispute resolution. It is often contended that in a capitalist society, one is free to do nearly anything they need to in order to promote their own business interests. [57] While this may seem like the most efficient way to allocate ideas, there are, in reality, a number of negative and unintended effects of such behavior. [58] When people steal coworkers’ ideas, the wrong people receive praise and merit and companies end up being run by the most undeserving of their employees. [59] When people steal ideas from a person at a different firm, there is less and less incentive to pursue innovative and original business practices or models. [60] In either of these cases, the individual employees, the larger corporations, and society as a whole are harmed.

In the business context, the primary issue is evidence. [61] In seeking a declaratory judgment, a copyright holder will have little to go on other than word of mouth evidence. [62] Internal memoranda and the content of meetings are often kept under heavy lock and key, and so it will be difficult for a copyright holder outside of the individual corporation or business to prove that infringement actually occurred. [63] This problem is less for a copyright holder that is employed by the company, as they probably have the physical memoranda or were attending the meeting in which the infringement occurred. Unfortunately, it seems likely that employees of a corporation will suffer strong pressure from numerous sources to not pursue any sort of dispute resolution against a fellow employee or the company itself. [64] The pressure will arise from a desire to maintain a good working environment, as well as maintain a positive image in the public perception. [65]

Not-for-profit organizations are a special group in the United States, as they enjoy certain exemptions for tax and other purposes. [66] As a result, many copyright holders simply ignore copyright infringements because either it would appear bad to the public to pursue these seemingly beneficial organizations, and also because these organizations are generally not the type to be able to provide a large settlement or judgment. [67] It is because of this that a copyright holder needs to have some sort of other avenue to pursue a claim against a not-for-profit, with both privacy and copyright interests in mind. As mentioned in the previous sections, the best way to force a plagiarizer to submit to alternative dispute resolution would be to obtain a declarative judgment against the plagiarizer. [68] Again, evidence will be needed to obtain such a judgment.

Because not-for-profits are given so many advantages by the government, they are also closely monitored. [69] In addition to the monitoring already occurring, the government should take additional steps to ensure that all materials used by the not-for-profits comply with the Copyright Clause of the Constitution. While providing benefits to nonprofits is certainly desirable to allow them to keep functioning, a line is crossed when those benefits begin to infringe the rights of others. [70] If the government believes that a not-for-profit has infringed another’s legal copyright, it should make that fact known to the copyright owner, as it is his or her right to know that someone is infringing his or her work. Additionally, any reports or internal memoranda prepared by the government attesting to the fact of infringement should be available to the copyright holder for inspection and use in the pursuit of a declaratory judgment.

The difference between not-for profit entities and the previously listed educational and business entities lead to differences in what the copyright holder will be able to enforce. [71] Because the not-for-profit is not directly impinging the market for the copyright holder, it is traditionally given a fair-use defense to copyright infringement. [72] The four factors listed in the statute are, however, only guides and are not determinative. [73] The factors include “the purpose and character of the use…the nature of the copyrighted work…the amount and substantiality of the portion used…and the effect upon the potential market for or value of the copyrighted work.” [74] As a result, each case of a not-for-profit use will need to be analyzed under the standard fair use doctrine before a court can grant a declaratory judgment in favor of a copyright holder. If the use by the nonprofit becomes so great that it begins to cause confusion as to where the original work came from, it should not be allowed under fair use.

When selecting the proper method of alternative dispute resolution to employ in copyright and plagiarism cases, there are several options. The ultimate decision of which method to employ, however, should ultimately rest with the copyright holder that was harmed by the plagiarism. Each method has its own positive and negative attributes that the copyright holder can take into account when selecting a method.

In the context of copyright infringement, especially plagiarism, arbitration presents an interesting option because of the nature of plagiarism. [75] Plagiarism is itself a relatively personal act, with people committing the wrong for a variety of reasons. [76] Additionally, there is always the possibility that the copying was not intentional, and therefore may be argued to be not technically plagiarism. [77] This sort of evidence, such as the character of the plagiarizer, is the sort of thing that is usually determined by a trier of fact in litigation, especially a jury. [78] As a result, arbitration may not be effective because there is very little concrete fact, except perhaps the fact that some infringement did occur. Arbitration works most effectively when there is some sort of concrete figure that the arbitrator can come to. [79] So, arbitration might be an effective option if the copyright holder is seeking monetary remunerations specifically and not some other form of individualized retribution. [80]

The problem with arbitration in the copyright context is that of valuation. [81] Copyright owners might believe their copyrights to be the most valuable things in the world, while the plagiarizer might believe that their infringement was of a minor idea that didn’t have much value. [82] To allow a third party to come to a binding agreement for these two groups, with such disparity between their initial valuations, could create dramatically excessive or insufficient decisions. [83] This aspect of arbitration again highlights the difference between traditional copyright infringement and plagiarism. A copyright infringement case in the entertainment industry, for example, will likely provide at least a general estimate of the amount of business lost by the copyright holder, while there is no such number in plagiarism cases. [84] It is because of this subjective nature of a plagiarism dispute that arbitration may not be the best mode of dispute resolution, and some alternative, such as negotiation or mediation, could be more beneficial.

Negotiation is a method of resolution that is not normally employed in disputes, but is instead employed when both parties are seeking to gain something by a mutual agreement with the opposition. [85] While the most popular notion of negotiation is that of adversarial parties trying to get something out of their opponent, the contemporary notion is that a problem-solving or principled bargaining approach is best. [86] If the contemporary thinking is to be employed in negotiation, it is possible that it could be an effective tool to help redress the wrong that has occurred to the copyright holder. Additionally, negotiation could provide an adequate forum to allow the plagiarizer the opportunity to negotiate for their issues, such as keeping the dispute private in order to preserve their reputation. [87]

While it is possible that negotiation could be effective, it seems more likely that in an emotionally charged atmosphere such as that created by a plagiarism dispute, the competitive bargaining strategy is more likely to be used. [88] Just by using the word plagiarism, emotions are aroused that could make a copyright holder feel defensive and seek only to punish the infringer as harshly as possible. [89] This might not be the best course, considering the relative amount of damages actually done. Negotiation and arbitration have quite dissimilar problems and goals. While arbitration places too little power in the hands of the copyright holder and plagiarizer, negotiation could tip the scales too far in favor of the copyright holder. As a result, some sort of middle ground between these would be ideal. This middle ground, and the one that should be employed, is court-sponsored mediation.

This form of alternative dispute resolution is likely the most effective of the three listed in this section. It does not have the problem of not taking into account the required subjective valuation like arbitration, [90] and because there is a third party mediator, the copyright holder will have a backup when making their suggestions for resolution, unlike the solitary nature of negotiation. [91] Also, having a third party in the room during mediation will protect the interests of the infringer because the mediator will seek to maintain as much balance as possible over the course of the discussion. Mediation is one of the preferred methods to create a resolution after an event has occurred, such as a plagiarism case, because it allows the parties to come to their own resolution rather than simply having it dictated to them. [92] These sorts of resolutions are more likely to be followed by the parties because they feel more invested in them. [93]

While it is true that court-sponsored mediation has its problems in copyright disputes, it seems that many of those problems would be avoided in the declaratory judgment-mediation context for plagiarism disputes. [94] One of the problems commonly cited is that lawyers simply do not comply with the requirements of such a system or do not believe in that system at all. [95] In many cases, the lawyers for the rights holder may not have thought mediation was an effective tool for their clients because the case was exactly like a precedential case in their jurisdiction that had resulted favorably. [96] There was, therefore, no incentive for them to pursue mediation because all that would lead to would be a compromise when they could have a much larger award through litigation.

In the case of plagiarism, however, mediation may be the only viable option for the copyright holder because, as stated previously in the Introduction, litigation is simply not economically feasible for a student or not-for-profit organization. [97] Lawyers and clients alike will be much more willing to comply with the requirements to make sure that they are given some redress for these cases of plagiarism, rather than nothing [98]. Just like anything else, making this system viable is all about having incentives. Because it would be the only real way in which a copyright holder might be compensated for many forms of plagiarism which do not have their own intrinsic monetary value, it stands to reason that those owners would be willing to maintain the system to maintain their rights.

The primary means of copyright settlements in cases that actually proceed to settlement or trial is simply money. [99] It is usually what the copyright holder is after when they are seeking to enforce their right in some way. [100] The amount is usually determined by estimating how much money the copyright holder would have made if the infringement had not occurred, plus any punitive damages. [101] In cases of student plagiarism, however, there is likely no money lost on behalf of the copyright holder. [102] This is because the plagiarizer usually has not used the idea in a way to make money, but simply to gain credit for themselves. Additionally, the information that student plagiarizers take for their own use is not the sort of information that is usually sold on a mass level. [103] Rather, it is the sort of information that people use to expand their own knowledge or understanding. Because actual damages are lacking, the only further option is to pursue statutory damages. [104] If the parties are in mediation, this presents something of a problem because punitive damages are generally decided by a judge, and the range allowed by statute is quite large. [105]

Because of the difficulty in establishing a monetary value for the damage caused by plagiarism, it is likely not the best choice of remedy. In certain situations, such as where a copyright holder has suffered specific damages in terms of public persona or image, monetary damages may be appropriate because that is the sort of harm that will not be corrected in any other fashion. There are alternatives to monetary remedies, such as the equitable remedy of an injunction or some sort of socially-benefitting atonement. [106]

The most obvious course of action for a copyright holder that has had their right violated is to seek an injunction to prevent that right from continuing to be violated. [107] In the case of a student plagiarism situation, the injunction would simply be that the student is not allowed to use the work in their own work, and if the student’s work is in any way going to be made public that process must be, at least temporarily, halted. [108] This equitable remedy, while it sets things right for the immediate future, does not redress any wrongs that may have previously been committed. It therefore must be combined with some other sort of remedy.

An injunction is different than the other remedies because it is available not only in the form of the infringing party voluntarily ceasing their infringement after dispute resolution, but also is available from the court system. [109] In pursuing a declaratory judgment against an infringer, a copyright holder could simultaneously pursue the injunction to prevent that infringer from benefitting in any way between the time of the judgment and the time that the dispute can be resolved independently. In this way, injunction is likely to be a part of every declaratory judgment-dispute resolution activity by a copyright holder. This will aid the copyright holder in preventing the offending work from going to press, if it is a candidate for such distribution, and will thus preserve the holder’s reputation and prevent any damage that may be caused by publication.

Although injunction will commonly be present, as mentioned above, it must be combined with some other form of remedy in order to compensate for damages. Additionally, injunction does nothing to prevent the plagiarizer from simply plagiarizing in some other form, but only that they must stop what they are presently doing. [110] In order to stop the plagiarizer from committing such an act in the future, some form of either punishment or retribution is necessary. This punishment can take many forms, several of which are outlined below. [111]

Retributive activities include those activities in which a plagiarizer engages to (1) make sure the sort of plagiarism in question never happens again and (2) make amends to the party from whom they made the wrongful copy. [112] This remedy can be tailored to meet the severity of the plagiarism in question. For example, requiring the student plagiarizer to attend a meeting about plagiarism would be a relatively lenient remedy for those plagiarizers who may have committed their wrong without any sort of malice against the other party. [113] If, on the other hand, there is some malice on the part of the plagiarizer, they may be required to engage in more active work to atone for their wrong. [114] This can include performing work in the scholarly community to advocate what actions actually constitute plagiarism, and what sorts of things people can do to prevent plagiarism. [115]

As mentioned above, monetary remunerations are a common way to make the copyright holder whole again. [116] Those monetary payments can also serve as a statutory or punitive sort of damage to prevent the sort of copyright infringement from happening again. [117] These statutory damages are especially important in cases such as plagiarism where it is difficult to adequately assess the value of the infringement in question. [118] In litigation, these damages can be increased “if the ‘court finds… that infringement was committed willfully’” [119] and decreased “if the court finds that the infringement was committed innocently.” [120] While it is up to the trier to determine the extent of these statutory damages, they can be effective in influencing the outcome of alternative dispute resolution forums as well. [121] They can, for instance, be used as leverage by one party or another to show that the damages that would be awarded in litigation would be greater or smaller than the opposition alleges. [122]

There may be cases in which the only retributive activity in which the copyright holder wishes to engage is to have the plagiarizer make a public statement or issue a written note explaining that they copied the right holder and to retract their work. In this sort of case, each party will have to make a determination of the value that they place on privacy, resolving the issue, and putting it behind them. [123] In the mediation context, it may be wise for the copyright holder to not push too hard for a public apology for several reasons. Such aggressiveness could make the plagiarizer decide that if the plagiarism will be made public anyway it is not worth complying with any of the right holder’s demands. [124] This will stall negotiations as the plagiarizer will simply shut down. [125] Alternatively, it is not in the plagiarizer’s interests to flatly refuse any sort of public announcement because such hostile action may inspire the copyright holder that litigation may be worth it to them after all. [126] This will needlessly add to the costs of resolving the dispute and defeat the purpose of alternative dispute resolution entirely. Instead, the parties should enter mediation or negotiation with an open mind about different ways to make the right holder whole again. Simply increasing the monetary compensation may be enough to convince the right holder that a public statement really isn’t that important to them.

The practice of plagiarism by students and nonprofit organizations plagues the copyright industry. It often goes unmitigated, however, as there is little incentive for copyright holders to pursue those that plagiarize. [127] There is no legal cause of action for many cases of plagiarism, and yet there is a harm done to the copyright owner. [128] In most instances, the plagiarism is simply dealt with by a university when relating to scholarly plagiarism, and the copyright holder is forced to sit idly by and have faith that the educational institution is taking enough action to both punish and prevent acts of plagiarism. [129] It is an unfortunate aspect of this system that institutions often cover up instances of plagiarism within their walls because they have ulterior motives which would not be served by public knowledge of the plagiarism event. [130] These motives may even exist on the individual level, with school officials not wanting to enforce plagiarism because of a fear that they may be the first on the chopping block. [131]

It can be a complicated endeavor to determine if plagiarism has actually occurred for several reasons in the different areas in which it is prevalent. In the academic arena, it may be difficult because so many ideas have been distributed over the years and the student may simply claim that they came up with the idea on their own. [132] If this is the case, it will depend on the institution for whether or not culpability is found. [133] In the business world, the practices of capitalism and intra-office politics may serve as roadblocks to finding out if plagiarism has occurred. [134] Capitalist principles may get in the way because the businessperson may take whatever steps necessary to ensure that their plagiarism is not discovered. [135] Additionally, an employee of a company may be encouraged to keep the workings of that company a secret. [136] This may involve denying credit even though it is due, or maintaining strict privacy when dealing with company documents or materials. [137] Within the nonprofit field, the primary obstacle to a finding of plagiarism is that of fair use as outlined by the Copyright Act. [138] Nonprofits are given much freedom in employing the works of others because of their positive societal effects. [139] If, however, it is possible to determine that plagiarism has occurred, the copyright owner must be given some sort of involvement in the pursuit of plagiarists of their work, and some sort of procedure must be instituted to ensure those rights are maintained.

One procedure that could help maintain copyright holders’ rights would be to allow the copyright holder to seek a declaratory judgment that a copyright infringement in the form of plagiarism has occurred, allow that owner to take the plagiarizer into some sort of alternative dispute resolution forum, and then collect any damages deemed to be owed in that forum. [140] This method would satisfy both the courts’ needs to not be bogged down with cases having no obvious numerical figures to apply to damages, but simultaneously allow copyright holders some way to protect themselves. Additionally, promoting the current practice of courts negating arbitration agreements and granting injunctions would greatly benefit the interest of the copyright holder as it would allow him or her to prevent any public harm, such as that to a persona, from occurring in the first place. [141] As it stands now, creators of works such as scholarly articles are forced to merely notify the public of their copyright and hope that people are honorable. [142] As plagiarism continues to occur in the educational, business, and not-for-profit worlds, however, it is increasingly obvious that this sort of system is not effective enough. The threat of internal sanctions is no longer a legitimate way to force students and businesspeople to understand that they cannot simply copy the works of other people without giving credit where it is properly due. [143] Alternative means of driving this point home are required.

The conclusions drawn in this paper may seem to imply that it is up to the copyright holders, and is even their duty to pursue those that plagiarize their works. On the contrary, the point is simply that instituting some sort of alternative dispute resolutions system in an area where there has historically been no dispute resolution system would prevent wrongs from occurring. To own a copyright provides opportunities, but not obligations. [144] It is the choice of the copyright holder to pursue those that infringe their rights. [145] No obligation exists to pursue the plagiarizers. [146] It would be beneficial to society if people began to see that there would be legitimate consequences for any plagiarism, but it is not the responsibility of an author to take on the problem of plagiarism if he or she does not desire to do so. If, however, this sort of system to prevent plagiarism were instituted, it is clear that the copyright holders should have some sort of power. They are, after all, the people with the largest direct interest in preventing these sorts of situations. [147] Institutions of higher learning also have an interest in protecting their integrity and the integrity of the scholarly community as a whole, [148] but these interests are secondary when compared to the interest of Copyright, which have been present in the United States for the entirety of its existence. [149]

[1] J.D. Candidate, The Ohio State University Moritz College of Law, 2011

[2] Daniel E. Martin & Asha Rao, Plagiarism, Integrity, and Workplace Deviance: A Criterion Study, Ethics & Behavior 19(1), 36, 46 (2009).

[3] Vincent R. Johnson, Corruption in Education: A Global Legal Challenge, 48 Santa Clara L. Rev. 1, 28 (2008) (citing Clive Bloom & John Higgins, You, Sir, are a Cad, a Cheat and a Bounder, Times Higher Educ. Supp., Sept. 15, 2006, at 16).

[4] Ralph D. Mawdsley, The Tangled Web of Plagiarism Litigation: Sorting out the Legal Issues, 2009.2 BYU Educ. & L.J. 245, 266 (noting that the court system has largely left policing of instances of plagiarism up to educational institutions. The traditional principle is simply that an institution must meet minimal standards of administration and discipline).

[5] Mark A. Lemley & R. Anthony Reese, Reducing Digital Copyright Infringement Without Restricting Innovation, 56 Stanford L. Rev. 1345, 1374 (2004) (providing background on the history of copyright and the economic incentives that factor into decisions to pursue infringement claims. The authors describe this history in the context of the evolving field of digital copyright infringement. The arc that that history has taken within the field of copyright protection is comparable to that of the written word. At first, it was only a few who had the power to reproduce the material. Over time, however, the technology evolved and it became the individual rather than the mass producer that the copyright holder had to worry about the most).

[6] Paul Goldstein, Copyright’s Highway, 12 (1994).

[7] Mawdsley, supra note 4 at 266 (specifically, the author states that the element of “misrepresentation” in plagiarism cases is present in the Lanham Act. Whereas trademark law is concerned primarily with confusion as to the source, copyright law is concerned with attribution of the material itself.)

[8] Lemley, supra note 5 at 1009 (describing how best to design a system of dispute resolution to efficiently solve the problems of the parties).

[9] Anthony Ciolli, Lowering the Stakes: Toward a Model of Effective Copyright Dispute Resolution, 110 W. Va. L. Rev. 999, 1009 (Spring 2008) (complaining that proposed alternatives to litigation currently fall short).

[10] Id. at 1009-22 (the author of this article does not believe that alternative dispute resolution practices can effectively take care of copyright disputes at all. Instead, the author postulates that a federal small claims court would be the best medium for settling disputes. This paper seeks to combine the small claims court idea with alternative dispute resolution).

[11] Id. at 1010 (providing background on the DRM in general. DRM is a type of technology that makes copyright infringement more difficult. It is one of a number of electronic tools used to prevent infringement. Those tools are, however, not infallible. (See James Warn, Plagiarism Software: No Magic Bullet!, 25.2 Higher Education Research and Development 195, 196 (2006) (describing the unfortunate truth that students who wish to copy others’ works will seemingly always find a way. Even with the advent of software to aid teachers in the hunt for plagiarism, students have found ways around it such as changing a few key terms in their plagiarized work))).

[12] Ciolli, supra note 9 at 1018 (explaining that the flaw of the Lemley/Reese system is that it only works well for relatively simple and straightforward copyright cases, which are not those that need such a system. Most of the cases which are the subject of disputes are not those with clearly drawn lines. As a result, there needs to be an efficient system that incorporates both the efficiency of alternative dispute resolution with the ability to be fact-specific of traditional litigation).

[13] Id. at 1017 (explaining that because of the nature of copyright infringement, the preferred remedy of injunction is nearly impossible to obtain in mediation. Additionally, mediation programs currently in effect do nothing for cases that have not been filed in the relevant jurisdiction. This is a problem for those copyright holders who do not have an incentive to file a lawsuit in the first place, either for time or monetary reasons)

[14] Lemley, supra note 5 at 1348.

[15] Martin, supra note 2 at 37; See also Lemley, supra note 5 at 1351 (discussing the various incentives among copyright holders and those that infringe).

[16] Johnson, supra note 3 at 74 (In this section the author counters the previously stated effect whereby academic institutions sweep plagiarism under the rug rather than dealing with it. The author cites the fact that, in the past, degrees have been revoked simply on the basis of plagiarism.)

[17] Johnson, supra note 3 at 74. (explaining that many of the problems of plagiarism are suffered not by the copyright holder or the plagiarist, but by an uninvolved third party, such as a peer of the student. That third party suffers because when plagiarism occurs at an institution, the credibility of that institution, both internally and externally, is diminished and those associated with it suffer).

[18] Ciolli, supra note 9 at 1006 (describing how a plaintiff with relatively low resources may simply not pursue a valid infringement claim, thereby lessening the value of copyright as a whole. If people don’t have the means to defend their rights, there is no point in creating the right in the first place).

[19] Id. at 1009 (the author indicates that it is simply because of the seeming inefficacy of the current copyright system that copyright infringement continues to occur. The main goal, then, is simply to create a system that everyone recognizes as functional. Until that occurs, potential infringers will not see the potential harm in copying another’s work).

[20] See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 36 (2003) (explaining that under the Visual Rights Act of 1990, certain visual works get protection for the lifetime of their authors in order to ensure that the author is recognized as the origin of the work. While the Court declined to apply the principle to non-visual works, in a situation where a writer had a registered copyright in a work, their rights would be no less supported by Congress).

[21] Black’s Law Dictionary 8th. Ed 2004 (definition of “dilution”).

[22] Ciolli, supra note 9 at 1009.

[23] Lemley, supra note 5 at 1393 (within the context of online infringement, the authors contend that there are collateral costs to litigation. These costs affect more than just the parties to the proceeding, and they could be avoided with alternative means to dispute resolution).

[24] See generally Catherine L. Fisk, Credit Where It’s Due: The Law and Norms of Attribution, 95 Geo. L.J. 49, 112 (2006) (describing the necessity of attribution in a healthy economy. The attribution aspect of copyright is not easily quantifiable, and so all of the relevant interests that are supported by attribution must be addressed).

[25] See supra note 18.

[26] Lemley, supra note 5 at 1349 (the authors contend that with the socially beneficial evolution of technology, the system for resolving copyright dispute must evolve as well. In traditional litigation, the technology is swept in with the infringing act, and as a result it may be lost to society when in reality such drastic steps are not necessary. The authors seek to promote the advancement of technology while simultaneously maintaining the rights of copyright holders.)

[27] Mawdsley, supra note 4 at 252 (At this point the author cites a university’s change in policy that actually made it easier to defend a plagiarism claim. Although that is not the current trend, it reflects the need to keep policies up to date with the current thinking on the issue. At the present time, intent is not a necessary element of plagiarism and the university’s policy should change as such).

[28] Black’s Law Dictionary 8th. Ed 2004.

[29] Id.

[30] Wendy Sutherland-Smith, Pandora’s Box: Academic Perceptions of Student Plagiarism in Writing, 4 Journal of English for Academic Purpose 83, 84 (2005).

[31] Id.

[32] Craig Joyce, Marshall Leaffer, Peter Jaszi, & Tyler Ochoa, Copyright Law 601 (7th ed. 2006) (indicating that to make a prima facie case, a plaintiff need show both “copying and improper appropriation”).

[33] 28 U.S.C. §2201(a).

[34] Martin, supra note 2 at 44 (the authors draw a connection between the academic environment and the business world as it is perceived by students. These connections are important because the lessons and perceptions that are learned in academia are obviously carried over once the student enters the business world. As a result, it is crucial to make sure that students and teachers understand what an important issue plagiarism is and how best to prevent it).

[35] 28 U.S.C. §2201(a).

[36] Johnson, supra note 3 at 73 (citing the new ability of students to “cut and paste” as a reason that plagiarism thrives to this day).

[37] Id. (this distinction becomes important when examining individual institutions and whether or not they consider the culpability of the action as a factor of plagiarism, and if it will be relevant in determining a proper punishment or if plagiarism has occurred at all. These standards vary from country to country and are based on different value systems, but there is also the possibility that they vary from institution to institution based on a given institution’s established reputation or other interests).

[38] Id. (explaining that some legal scholars and university officials disagree as to what actually constitutes plagiarism. While some argue that it requires intent and some sort of personal benefit, others contend that plagiarism can occur whether they offender has intended to or not. Johnson contends that it does not matter which path a given educational institution chooses, as long as it is made explicit in a written code of conduct, which some institutions still lack. This contention does not, however, fit with the notion that a uniform standard is necessary if copyright holders will be given a way to redress infringements against them. The standard should be set for all institutions in order to aid in the court’s determination of whether a declaratory judgment of infringement should be granted. It is impractical to ask the court to maintain different standards for each individual institution).

[39] Suntherland-Smith, supra note 29 at 85 (The author cites numerous studies in which educational settings across the world were examined. In these studies, both students and teachers were scrutinized to determine both what was considered plagiarism, and how the subject was addressed. The results of the studies indicated that different cultures can have very different ideas of what is and isn’t wrong. What one culture may consider to be completely morally reprehensible, another may consider to be a legitimate way to learn); See also Johnson, supra note 3 at 12 (describing the situation in Romania, a country where it is commonplace for students to simply turn in entire papers instead of their own work. The author postulates that this sort of activity may be due to the fact that when that region was under communist control, free-thinking was generally discouraged.

[40] Johnson, supra note 3 at 73.

[41] Id. at 22.

[42] Sunderland-Smith, supra note 29 at 90 (explaining how teachers at various universities were greatly encouraged and quickly learning to use the electronic resources to detect instances of plagiarism. While some teachers were less enthusiastic about software and web-based systems, they were beginning to take hold).

[43] Johnson, supra note 3 at 38 (Johnson explains that a good ethics code “serves not only as a basis for enforcement, but as a tool for education. Johnson explains that giving specific examples of what would constitute a violation and that being flexible within the code will allow the optimal means of enforcing it on behalf of administrators).

[44]Code of Student Conduct, The Ohio State University Moritz College of Law, “Prohibited Conduct” and “Judicial Proceedings,” §§3335-23-04, 3335-23-05.

[45] See, Johnson, supra note 3at 74 (indicating that it may actually be the administrators and professors of a given institution that are fighting the crackdown on plagiarism. This is because if a crackdown ensues, those officials know that they will be the first to go under the microscope. Most, if not all, of their work, scholarly and otherwise, will be subject to a new standard that does not allow for slip-ups in plagiarism).

[46] Id. at 248 (describing how a determination of plagiarism involves “both objective and subjective analysis.” The subjective part of the analysis is not to say that if a person copies unintentionally plagiarism has not occurred. Rather, there is a subjective element to whether or not some piece of information has entered the realm of “general knowledge.”

[47] Ciolli, supra note 9 at 1017 (arguing that court-sponsored mediation of copyright disputes is not effective because many copyright holders would choose litigation over anything else because it offers the largest award, especially in relatively sure cases. In cases such as plagiarism, however, where litigation is not an attractive option for copyright holders, they should still have the preference of forum in which to settle the dispute, rather than being forced to go into a particular forum by the courts.)

[48] Mawdsley, supra note 4 at 267 (describing how the emotionally charged nature of plagiarism cases, from the perspective of both the plaintiff and defendant, often result in procedure falling by the wayside. If, as suggested here, a plagiarizer has recently been told by a judge that their actions did constitute plagiarism, he or she may be reluctant to continue with the proceedings in a reasonable fashion).

[49] Martin, supra note 2 at 38 (the authors indicated that “All prior research attempting to link classroom cheating and unethical behaviors in organizations…suffers from social desirability and self-report bias.” It is because the business sector relies so much on self-reporting that it will be more difficult to prove plagiarism than in education where a teacher or professor usually reports instances of plagiarism; See also Johnson, supra note 3 at Part III.2.d (outlining how, even within a university, sometimes business interests take precedent over official duties.)

[50] Martin, supra note 2 at 40 (describing the ways in which people in the workplace are afforded much more individual liberty in their day-to-day decisions. These decisions encompass a wide variety of areas, but most are related to the overall unethical attitude that people take toward performing the functions involved in their employment.)

[51] Charlie Cray, The Government’s Business, 25.5/6 Multinational Monitor 15 (May/June 2004) (This article discusses the Federal Acquisition Regulation that imposed certain ethical standards on businesses bidding for federal contracts).

[52] The Associated Press, S.E.C. Reorganizes in Wake of Madoff Fraud, available at: http://www.nytimes.com/2010/01/14/business/14sec.html?scp=2&sq=madoff&st=cse

[53] Johnson, supra note 3 at 40.

[54] Martin, supra note 2 at 38.

[55] See, supra Part II.

[56] See, supra Part I.

[57] Cf. Cray, supra note 48 (The article is just one example of the ways in which external factors affect the functioning of a given business, even within a supposedly capitalist society).

[58] Martin, supra note 2 at 40 (The authors cite a series of studies that found that workers often engage in a pattern of behavior called “workplace deviance. What this means is that the worker “violates normative expectations in the social context of employment.” The social context idea is applicable to plagiarism because in order to plagiarize one must put their own false achievement over the real achievement of others.)

[59] Fisk, supra note 24 at 50 (explaining that credit alone is a huge factor in the way that business is able to function. Fisk contends that “If professional reputation were property, it would be the most valuable property that most people own.”).

[60] Id. (the author contends that although intellectual property in the past has been perceived as a hindrance on innovation because it allows certain corporations to become complacent, it has actually had the opposite effect. By allowing particular organizations to protect that which should be attributed to them, it helps them gain a reputation and move forward in their respective industry.)

[61] Id. at 108 (the primary difficulty with producing evidence of who came up with what in the business context is that employees are often encouraged to allow superiors to take the official credit for a successful project or deal. As a result, the true creator of a given model or written creation may be prevented by their own company from establishing any sort of priority right in the creation).

[62] Id.

[63] Id.

[64] Fisk, supra note 24 at 108.

[65] See, supra Part I.A (outlining the way in which educational institutions would naturally desire to maintain the image that plagiarism does not occur within their doors. Business organizations would have the same interests, and would not want to put out an image of cheating as it would likely cause a drop in favorable public perception that could lead to decreased sales).

[66] Stephanie Strom, Charity Panel Urges Oversight and Accountability Increase, N.Y. Times, June 23, 2005, at 16.

[67] Id.

[68] Supra Parts I.A, I.B.

[69]Cf. Strom, supra note 62 (indicating that nonprofit groups actually presented a report to the Senate Finance Committee calling for stricter oversight of nonprofit and charity organizations. While the report called primarily for closer monitoring of the structure and organization of the nonprofit entities, it is indicative of the lax attitude toward monitoring nonprofits that has been taken in recent years).

[70] Id.

[71] Copyright Act of 1976, 17 U.S.C. §107 (1976) (this section lists the fair use requirements in general, which nonprofits often meet due to the fact that they are not a commercial enterprise and their use has a negligible effect on the marketplace).

[72] Id. (it is true that students are normally allowed to quote from other scholarly sources when completing assignments. The fair use protection ends, however, when it is no longer fair because the student is not giving credit where it is due).

[73] Sony Corp. of America v. Universal Studios, Inc. 464 U.S. 417, 451 (1984) (finding an use unfair when it is for presumptively commercial purposes); Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 577 (1994) (finding that the commercial aspects of a use are just one of the four criteria a judge is to look for when determining fair use).

[74] Copyright Act of 1976, 17 U.S.C. §107 (1976) (the four-factor test does not have any one dominant factor, though the commerciality aspect has been one of the most important in the past).

[75] Scott H. Blackmand & Rebecca M. McNeill, Alternative Dispute Resolution in Commercial Intellectual Property Disputes 47 Am. U. L. Rev. 1709, 1716 (August, 1998) (discussing how the arbiter must make his or herself very familiar with the background of technical cases in order to understand how and why the parties did what they did. Cases of plagiarism, while they might not employ complex technical devices, have equally complicated reasons and methods behind the copying. As a result, the arbiter must fully familiarize his or herself with the background of not only the facts, but the parties as well in order to be as fair as possible).

[76] Martin, supra note 2 at 42 (The authors describe how people of all different personality types have admitted to cheating in one form or another over their scholastic careers. The reasons that the people have done so are as varied as their personality types.

[77] See, supra note 29 (once again, whether or not something is considered plagiarism currently seems to depend on the rules of the institution in which it occurs. For a more effective system to thrive, a more standard notion of plagiarism should be established. The most beneficial way to do so would be through legislation in Congress which would finally establish plagiarism as a doctrine of law).

[78] Blackmand, supra note 75 at 1712 (indicating that arbitration effectively replaces the court room in all regards, which would necessarily include any findings of fact or any determinations of credibility of the parties in their accounts of the alleged plagiarism).

[79] Id. at 1713 (the necessity of arbitration to arrive at a fair value in its ultimate determination is because arbitration is usually final, with no chance of appeal for either party).

[80]Id. supra note 45 at 1714 (discussing the ways in which figures can be arrived at by an arbiter, including by comparing final offers submitted by each party, or by examining the ranges of final number proposed by each party).

[81] Id.

[82] Martin, supra note 2 at 37 (highlighting the gray area that often exists between what is clearly plagiarism and what could have theoretically been created by the employee on his or her own).

[83] Id. (the authors describe how the fear that an arbiter will be more likely to accept the other side’s proposal will cause the party to under or over-estimate their own proposals. While the authors see this as an efficient way of coming to an agreement, it forces the parties into compromising the real value of their position.)

[84] Fisk, supra note 24 at 77 (describing the vast diversity of the types of work that go into making a motion picture, and the different sorts of credit that would be lost in the event of an infringement).

[85] Roger Fisher and William Ury, Getting to Yes 56 (Bruce Patton ed., Penguin Books 1991 (1983).

[86] See generally Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes,

[87] Code of Student Conduct, The Ohio State University Moritz College of Law, “Hearing Procedures” & “Record of Proceedings” §§ 3335-23-10 & 3335-23-12 (stipulating that attendance at disciplinary hearings is limited to those involved in the case unless absolutely necessary that others attend, and that a written record will be maintained but will be kept within the possession of the university. If the transition from the current system is to be supported by academic institutions and student advocacy groups, it is likely that it will have to maintain a similar level of privacy for the alleged plagiarizer as is the current norm).

[88] See generally Michael w. Morris & Dacher Keltner, How Emotions Work: An Analysis of the Social Functions of Emotional Expression in Negotiations, 22 Research in Org. Behavior 1 (2000).

[89] Id.

[90] See, supra Part III.A. (the primary difference between arbitration and mediation is that the decision will not be made behind closed doors, and not by an uninvolved party. The decision will be made in the open, and will be a consensus).

[91] See, supra Part III.B. (while the mediator is generally impartial, and serves primarily to further the conversation, the effect of simply having someone else in the room could be a great asset to a party that would have otherwise been at a great disadvantage).

[92] Blackmand, supra note 75 at 1714 (The authors also point out that this sort of resolution will help to maintain business relations between parties that could have dealings in the future. If the mediation is able to function effectively, it proves that the parties are truly committed to the outcome. In a more adversarial type of dispute resolution, such as litigation, it is possible, if not likely, that at least one of the parties will not like the outcome of the case and it will create bitterness between the parties as they move forward in their relationship).

[93] Id. (citing Institute for Dispute Resolution, Center for Public Resources, Inc., CPR Model ADR Procedures and Practices: Mediation I-1, I-4 (1995) and describing how allowing the free flow of communication naturally allows parties to feel invested in the outcome of a mediation, as long as they enter the mediation with a vested interest in seeing it come to the fruition of an agreement.)

[94] Ciolli, supra Note 9, at 1017 (citing the fact that in districts with court-sponsored programs, the only way they can go to mediation is if the case has actually been filed. This does not solve the problem if the cost of initiating the litigation is itself too high).

[95] Id. at 1016 (the survey results of lawyers indicate that they are primarily concerned with not losing something that could be advantageous to their client, but also that many are concerned with keeping disputes in the court room to set precedent for future cases).

[96] Id. (The mediation program that the author references was for cases involving the Lanham Act from trademark law. For the purposes of determining if a mandatory mediation would work for copyright cases, however, many of the same principles are applicable).

[97] See, supra Part I.

[98] Blackmand, supra note 75 at 1720 (describing the reason that a copyright holder would favor an alternative dispute resolution settlement of the case, including benefits such as keeping the proceedings private. This links with the privacy issue that would be favorable to the plagiarizer as well).

[99] Ciollo, supra note 9 at 1007 (The author goes into detail about damages, including the possibility of statutory damages for the prevailing party in a copyright infringement suit).

[100] 17 U.S.C. §504(a) (This section provides that “[e]xcept as otherwise provided by this title, an infringer of copyright is liable for either (1) the copyright owner’s actual damages and any additional profits on the infringer, as provided by subsection (b); or (2) statutory damages as provided by subsection (c)).

[101] Id. (delineating the manner in which the copyright owner must show the existence of any actual damages incurred and any statutory damages that may be instituted in a punitive capacity or otherwise. Several parts of the statute also indicate that in certain situations a willful infringement will be a rebuttable presumption, and could lead to more damages; See also 17 U.S.C. §504(c)(2) stating that “[i]n a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000).

[102] Fisk, supra note 24 at 56.

[103] Sutherland-Smith, supra note 30 at 85 (explaining the nature of what it is that the students are actually doing when they create works that are examined for plagiarism).

[104] See, supra note 101.

[105] 17 U.S.C. §504(c)(1) (providing that a copyright owner may abandon actual damages and pursue punitive damages, “not less than $750 or more than $30,000 as the court considers just.” It may be possible to agree to a number within this range during mediation, but it may also present problems in that the plagiarizer may not agree to the punitive aspect of the damages).

[106] See Code of Student Conduct, The Ohio State University Moritz College of Law, “Hearing Procedures” & “Record of Proceedings” §§ 3335-23-10 & 3335-23-12 (public atonement might not be sufficient due to the plagiarizer’s right to privacy in these sorts of matters. There is, then, no reason for the plagiarizer to bring themselves out and the copyright holder must publicly pursue the individual on their own time. An injunction against use of the offending material then seems best, with a total removal from the public of the material. If the plagiarizer fails or refuses to comply with this provision, the copyright holder is still free to make their grievance public).

[107] Blackmand, supra note 75 at 1733 (indicating that in some cases a court will issue a preliminary injunction even if it is contrary to an agreement that the parties have previously come to. Equitable principles dictate that the parties not suffer more for agreeing to previous stipulations without the knowledge that some sort of plagiarism could occur in the future).

[108] Id.

[109] Paramount Pictures Corp. v. Carol Publishing Group, 11 F. Supp. 2d 329 (1998) (awarding a preliminary injunction to a company that can successfully establish a likelihood of success on the merits and irreparable harm should the injunction not be granted).

[110] Martin, supra note 2 at 46 (indicating that the variety of factors that lead a person who seems to have integrity to plagiarize could lead to much other bad activity by that person. If a person who seemed to be responsible in the past plagiarized, there is nothing to stop them from continuing the behavior).

[111] See Part III.C.

[112] Fisk, supra note 24 at 107 (indicating the legal reality of making attribution to the original source possible. The author again notes that the economic value of a commodity such as attribution is analogous to the damages that could be found in litigation that resulting in a determination of violation by plagiarism).

[113] Martin, supra note 2 at 40 (describing how students incorrectly believe that they are more ethical than business people. This misconception stems from the perception of capitalist principals, where the business person will do whatever they have to in order to be successful. Requiring classes geared specifically toward reversing this false perception would solve this problem and help the copyright holder because it would prevent infringement by the same plagiarizer in the future).

[114] Johnson, supra note 3 at 37 (describing how if student honor codes are going to be effective at all, they must clearly outline the sorts of punishments that will be instituted if certain elements of the plagiarism are met. As malice is obviously an element that makes the infringement only worse, a worse punishment is necessary and it should be made known to the student up front that such a punishment is possible.

[115] Id. (this activity may be as simple as giving a presentation to a given institution’s student body clearly outlining what will and will not constitute plagiarism. While written codes are necessary and mostly effective, there is something to be said for an oral presentation to make the point as clearly as possible. Whereas a student may claim ignorance of a given policy, the institution could mandate attendance at the presentation and then use such evidence in any later judicial hearings).

[116] See Part IV A.

[117] See, supra note 101.

[118] See, supra Part IIIC.

[119] Columbia Pictures Television v. Krypton Broadcasting, Inc. 106 F.3d 284 (1997) (citing 17 U.S.C. §504(c)(1) for the proposition that willful infringement is more culpable than innocent infringement, but indicating that both are still actionable).

[120] Id. (as discussed supra note 105, it may be difficult to get the plagiarizer to agree in mediation to punitive terms, as opposed to simple actual damages. Whereas a judge can make a final decision that the defendant must abide by, it may be more of a difficult issue when the plagiarizer has a say in the outcome).

[121] See generally Blackmand, supra note 75.

[122] Id. (this is, once again, a fine line that the copyright owner must walk when dealing with a plagiarizer. It is in the owner’s interest to obtain a mediated outcome with the plagiarizer, and he or she does not want to cause the opposition to simply shut down when it feels threatened. A proper strategy may be to simply hint at the possibility of the potentially large punitive damages in order to encourage the plagiarizer to agree to a reasonable amount of money that will both satisfy the copyright owner and not overly harm the plagiarizer).

[123] Id. at 1718 (it is highly unlikely that either party wants to be in the situation where plagiarism must be discussed and a resolution reached. It is, however, beneficial to all parties involved, including society in general, if the parties can reach an agreement and move on. The copyright holder is made whole, the plagiarizer has an incentive to never plagiarize again, and society benefits because copyrights in scholarly works have a real commodity value on the market that will encourage the creation of more scholarly works.

[124] Id. at 1714.

[125] Id.

[126] Id. (especially in academia, there is much pride associated with published work product. A minor show of defiance by a plagiarizer may be enough to spur on the copyright owner to litigate and unnecessarily drag out the resolution of the issue).

[127] See, supra Part I.

[128] See, supra note 6.

[129] See, supra Part II.A.

[130] Id.

[131] Id.

[132] See, supra Part II.A.

[133] Id.

[134] See, supra Part II.B.

[135] Id.

[136] Id.

[137] Id.

[138] See, supra Part II.C.

[139] Id.

[140] See, supra Parts II, III, & IV.

[141] See, supra note 107.

[142] See generally Sutherland-Smith, supra note 30.

[143] See generally Martin, supra note 2.

[144] Copyright Act of 1976, 17 U.S.C. §§107-805 (1976)

[145] Id.

[146] Id.

[147] See, supra Part I.

[148] Sutherland-Smith, supra note 30 at 91.

[149] U.S. Const. art. I, §8, cl.8

STUDENT SPOTLIGHT

The Need for Alternative Dispute Resolution in Academic, Business, and Nonprofit Plagiarism and Copyright Cases