Adapted from the writings of Dayan Yitzhak Grossman April 18, 2024 AP News reports: A…
You Can Say That Again: Plagiarism in Halacha
Adapted from the writings of Dayan Yitzhak Grossman
January 11, 2024
AP News reports:
Harvard University President Claudine Gay resigned Tuesday amid plagiarism accusations and criticism over testimony at a congressional hearing where she was unable to say unequivocally that calls on campus for the genocide of Jews would violate the school’s conduct policy.
Gay is the second Ivy League president to resign in the past month following the congressional testimony—Liz Magill, president of the University of Pennsylvania, resigned Dec. 9…
Following the congressional hearing, Gay’s academic career came under intense scrutiny by conservative activists who unearthed several instances of alleged plagiarism in her 1997 doctoral dissertation. The Harvard Corporation, Harvard’s governing board, initially rallied behind Gay, saying a review of her scholarly work turned up “a few instances of inadequate citation” but no evidence of research misconduct.
Days later, the Harvard Corporation said it found two additional examples of “duplicative language without appropriate attribution”…[1]
In this article, we introduce some basic Torah perspectives on plagiarism, and in a follow-up we will iy”H consider various halachic questions involving plagiarism.
It is important to distinguish between the legal concepts of intellectual property and infringements thereof discussed in the halachic literature—which are roughly analogous to the modern legal concepts of copyright and copyright infringement—and plagiarism. Copyright and its halachic analogues are economic frameworks, and their core concept is permission, i.e., these frameworks establish the right of an author to deny others the right to reproduce his work without permission. Plagiarism, however, is about dishonesty, and its key concept is attribution, i.e., the impropriety of representing another’s work as one’s own.
Attribution is irrelevant to copyright: Wherever copyright or its halachic analogues apply, they prohibit the reproduction of a work even if it is clearly attributed to the author, and permission is not a defense against plagiarism. Even if the author consents to someone else taking credit for his work (e.g., in the cases of essay mills and essay banks), the failure to properly attribute the work still constitutes plagiarism, although the misconduct is obviously greater if in addition to taking credit for someone else’s work, the plagiarizer unjustly deprives the real author of the credit due to him. Plagiarism constitutes a fraud against the author’s audience, which is led to believe that the plagiarizer is the author, and usually involves the additional iniquity of depriving the author of credit.
A tale of two Yitzchaks
One of the most interesting cases of alleged plagiarism in rabbinic history involved two gedolei Torah of late-fifteenth-century Spain: R’ Yitzchak Arama (the Akeidas Yitzchak) and R’ Yitzchak Abarbanel (the Abarbanel). They both composed classic peirushim on the Torah, and that of the latter seems to have incorporated many innovative ideas that originally appeared in that of the former, without attribution. While R’ Yitzchak Arama’s own feelings on the matter are unknown, his son R’ Meir Arama released a letter accusing the Abarbanel of plagiarism. He writes that had the Abarbanel but included proper attribution of his father’s ideas, he would have had no objection, and on the contrary, the Abarbanel would have done the ideas a favor by publicizing and disseminating them. He goes on to explain that he is not envious of the Abarbanel’s great eminence, nor is it his intention to increase his own family’s honor, but his purpose is rather to forestall the accusation, by those in future generations who will be unaware that his father’s work came first, that it was actually his father who plagiarized from the Abarbanel![2]
The Abarbanel never addressed the allegation that he had plagiarized from the Akeidas Yitzchak. In various places in his writings, however, he adopts contradictory positions on the acceptability of citing the work of others without attribution. In a couple of places, he criticizes R’ Dovid Kimchi (the Radak) for allegedly plagiarizing from R’ Avraham ibn Ezra, and he proudly declares that he, on the other hand, “will attribute everything to its author, lest I be one of the plagiarizers.”[3] But elsewhere he declares that there is nothing wrong with the authors of books citing each other without attribution, because “the source of everything is Hashem Yisbarach.”[4]
R’ Chaim Sofer and the plagiarist sofer
R’ Chaim Sofer (author of Shu”t Machanei Chaim; a talmid of a talmid of the Chasam Sofer, no relation) was asked about a sofer who was discovered to have passed off teshuvos composed by various gedolei Torah as his own, by sending teshuvos that he had received from gedolim to other gedolim, under his own name. Should this sofer be disqualified from his profession, he was asked, and should the sifrei Torah, tfillin, and mezuzos that he had already written be deemed invalid?[5]
Rav Sofer analyzes at length the nature of the sin of plagiarism from the perspective of the Torah, focusing on the misdeed of depriving the true author of the credit to which he is entitled and whether this is violative of “Lo sasig gvul reiacha (You shall not move a boundary of your fellow),”[6] which the Sifri says refers to one who switches the words of R’ Yehoshua with those of R’ Eliezer, and the words of R’ Eliezer with those of R’ Yehoshua[7]), or even actual theft. He concludes that stealing someone else’s Torah does indeed constitute theft, at least in certain circumstances, but for various reasons, the plagiarist in his case is not disqualified from serving as a sofer:
The bottom line is that although the man has acted brazenly and sinned greatly by perpetrating such an outrage, to clothe himself in garb that is not suitable for him, to steal the Torah wisdom of gedolei Torah, he is nevertheless not disqualified from serving as a sofer, and he should accept upon himself sincere teshuvah for the sin that he committed against Hashem and man, and he will repent and be healed.[8] He, the Merciful One, is forgiving of iniquity,[9] and the rabanim as well will (or perhaps “should”) forgive him, because nothing stands in the way of teshuvah.[10]
R’ Moshe (Maharam) Schick (in a teshuvah addressed to R’ Chaim Sofer, commenting on his correspondent’s above analysis), disagrees and maintains that plagiarism does not constitute theft, but he concedes that it is nevertheless prohibited, primarily on the grounds of the deception involved (rather than the offense of depriving the true author of credit):
But in truth, one who steals chidushei Torah, i.e., he says in his own name that which another talmid chacham has innovated, this is prohibited under “Distance yourself from a false word,”[11] or it is prohibited under gneivas da’as (deception), like every form of fraud by which one person defrauds another, similar to ona’ah (fraudulent dealing)…[12],[13]
[1]Steve LeBlanc and Collin Binkley. Harvard president Claudine Gay resigns amid plagiarism claims, backlash from antisemitism testimony. AP News. https://apnews.com/article/harvard-president-claudine-gay-resigns-841575b89bcdc062cdf979e647a2539e
[2]See Va’ad Lachachamim (by the Chida) ma’areches zayin os 10 (Zevach Pesach).
[3]Introduction to Trei Asar; end of his commentary to Amos (9:12).
[4]Nachalos Avos (New York 5713) 4:5 p. 233. See Wikipedia.
[5]Shu”t Machanei Chaim cheilek 2 C.M. siman 49.
[7]Sifri ibid. os 188. Cf. Inyano Shel Yom, cheilek 3 (Purim) from p. 135
[12]The Maharam Schick refers to “Rambam Hilchos Deios perek 2 (presumably halacha 6) and Hilchos Mechirah perek 1 (this should presumably read ‘perek 18’) and Choshen Mishpat siman 228,” which discuss the prohibition against fraudulent dealing.
[13]Shu”t Maharam Shick Y.D. siman 156.
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