Plagiarism and Kidnapping

By Atty. Harry Roque

Posted at Oct 23 2010 10:20 AM | Updated as of Oct 24 2010 09:11 PM

MANILA, Philippines - The Supreme Court last week promulgated a decision that Justice Maria Lourdes Sereno described in her dissent as one that would create “unimaginable problems for the academia” on how they would hence discipline students and researchers for plagiarism. Justice Sereno was particularly concerned with the majority’s decisions that plagiarism requires intent, which according to her, “stand against overwhelming convention on what plagiarism is.”

The lady Justice’s dissent was a directed at a per curiam (meaning the writer does not wish to be identified) majority opinion of the Supreme Court which dismissed our complaint against Justice Mariano Del Castillo for plagiarizing at least three works of foreign authors published by two leading international law journals and a book published by Cambridge University Press.

The majority dismissed the complaint after it accepted the explanation of Justice Del Castillo’s researcher that the failure to attribute was not intentional. In the words of the court: x x x “Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillo’s researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision.. x x x

She electronically “cut” relevant materials from books and journals in the Westlaw Web site and “pasted” these to a “main manuscript” in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. x x x as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions. x x x Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.”

In the absence of an intent to plagiarize, the court could not rule that there was in fact plagiarism: “plagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.”

Justice Sereno was, however, not convinced: “What is black can be called ‘white’ but it cannot turn white by the mere calling. The unfortunate ruling of the majority Decision that no plagiarism was committed stems from its failure to distinguish between the determination of the objective, factual existence of plagiarism in the Vinuya decision and the determination of the liability that results from a finding of plagiarism. Specifically, it made ‘malicious intent’, which heretofore had not been relevant to a finding of plagiarism, an essential element.”

The dissenting opinion then adopted the matrix that was included in our supplemental motion as evidence of plagiarism in the text of the decision itself. She then painstakingly enumerated what were instances of plagiarism.

Anent the defense that the “limited operational properties” of MS Word was somehow contributory to the omission of the court researcher, the lady justice had this to say:

“First, for a decision to make full attribution for lifted passages, one starts with block quote formatting or the ‘keying-in’ of quotation marks at the beginning and at the end of the lifted passages. These keyed-in computer commands are not easily accidentally deleted, but should be deliberately inputted where there is an intention to quote and attribute.

Second, a beginning acknowledgment or similar introduction to a lengthy passage copied verbatim should not be accidentally deleted; it must be deliberately placed.

Third, the above explanation regarding the lines quoted in A.1 in the majority Decision may touch upon what happened in incident A.1, but it does not relate to what happened in incidents B.1 to C.6 of the Tables of Comparison, which are wholesale lifting of excerpts from both the body and the footnotes of the referenced works, without any attribution, specifically to the works of Criddle & Fox-Decent and of Ellis. While mention was made of Tams’s work, no mention was made at all of the works of Criddle & Fox-Decent and of Ellis even though the discussions and analyses in their discursive footnotes were used wholesale.

Fourth, the researcher’s explanation regarding the accidental deletion of 2 footnotes out of 119 does not plausibly account for the extensive amount of text used with little to no modifications from the works of Criddle & Fox-Decent and Ellis. As was presented in Tables B and C, copied text occurs in 22 instances in pages 27, 31, and 32 of the Vinuya decision. All these instances of non-attribution cannot be remedied by the reinstatement of 2 footnotes.

Fifth, the mention of Tams in ‘See Tams, Enforcing Obligations Erga omnes in International Law (2005)’ in footnote 69 of the Vinuya decision was not a mere insufficiency in ‘clarity of writing,’ but a case of plagiarism under the rule prohibiting the use of misleading citations.

Sixth, the analogy that was chosen —that of a carpenter who discards materials that do not fit into his carpentry work—is completely inappropriate. In the scheme of ‘cutting and pasting’ that the researcher did during her work, it is standard practice for the original sources of the downloaded and copied materials to be regarded as integral parts of the excerpts, not extraneous or ill-fitting. A computer-generated document can accommodate as many quotation marks, explanatory notes, citations and attributions as the writer desires and in multiple places. The limits of most desktop computer drives, even those used in the Supreme Court, are in magnitudes of gigabytes and megabytes, capable of accommodating 200 to 400 books per gigabyte (with each book just consuming roughly 3 to 5 megabytes). The addition of a footnote to the amount of file space taken up by an electronic document is practically negligible. It is not as if the researcher lacked any electronic space; there was simply no attribution.

Seventh, contrary to what is implied in the statement on Microsoft Word’s lack of an alarm and in paragraph 4 of the decretal portion of the majority Decision, no software exists that will automatically type in quotation marks at the beginning and end of a passage that was lifted verbatim; these attribution marks must be made with deliberate effort by the human researcher. Nor can a software program generate the necessary citations without input from the human researcher. Neither is there a built-in software alarm that sounds every time attribution marks or citations are deleted. The best guarantee for works of high intellectual integrity is consistent, ethical practice in the writing habits of court researchers and judges. All lawyers are supposed to be knowledgeable on the standard of ethical practice, if they took their legal research courses in law school and their undergraduate research courses seriously. This knowledge can be easily picked up and updated by browsing many free online sources on the subject of writing standards. In addition, available on the market are software programs that can detect some, but not all, similarities in the phraseology of a work-in-progress with those in selected published materials; however, these programs cannot supply the citations on their own. Technology can help diminish instances of plagiarism by allowing supervisors of researchers to make partial audits of their work, but it is still the human writer who must decide to give the proper attribution and act on this decision.”

I have not received a copy of either the majority nor the dissenting opinion. Chances are we will file a motion for reconsideration, precluding me hence from commenting on either opinion. This much I will say: plagiarism comes from the same root word as kidnapping. It is not just morally wrong, it is in fact criminal. It cannot and should not be treated lightly, nor casually. As an educator, I can only concur in the fears expressed by Justice Sereno that the decision will have disastrous effects for the academe. Unless challenged, the majority opinion and the “MS Word” defense may hence be invoked by dishonest students in justifying plagiarism.

In any event, while the Supreme Court’s decision is final on purely legal issues, its decisions on a charge of plagiarism, unprecedented in our jurisdiction, is subject to challenge particularly by those who have the most interest in preventing it: the academe. Surely, the decision cannot remove the perception by at least three respected international scholars that their works were in fact plagiarized and twisted. And yes, lest we forget, Vinuya is not just about plagiarism. Its primarily about at least 60 women who were repeatedly raped during World War II and who, according to the majority opinion of the Court, have no further remedies under our laws.