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Iyar 5768

Plagiarizing, Loshon Hora, and Employee Responsibility


Written by the rabbi


Recently I received the following inquiry:

"Hi Rabbi Kaganoff,

"While editing an article I discovered that the author had borrowed large sections of the article from another source. This is plagiarizing!

"I called the writer and informed her that I could not pass the article on for proofreading. She asked why -- if I would tell her what the problem was, she said she could change it. When I explained that I had found much of the article under a different byline, the writer told me that she had been instructed that she could use material from the Internet; that she had been given an unrealistic deadline to write the article; that she had found no other sources on the subject, and other excuses.

"I tried to sound sympathetic and I patiently explained that although it is perfectly fine to gather information from a previously published source, it is unethical to quote entire sections from someone elses writing. I am not sure that she understood, although she did rewrite the article, which I then edited and sent to the proofreader.

"With this introduction, I can now ask my questions:

"1. Am I required to notify our joint employer that the author originally submitted a plagiarized article?

"2. If I am required to tell the employer, should I have told him about this problem before I told the writer? Although I sincerely hope that this problem never reoccurs, I would like to know the halacha for future reference.

"Any additional comments and insights are welcome.

"Sincerely yours,

"Meirah Goldstein" *Please note that names and some details have been changed to protect privacy.

Answering this shaylah requires us to understand several halachic issues and some legal matters as well. We need to clarify:

I. Did Meirah satisfy her responsibility to her employer by educating the writer?
II. Does the employer still have a right to know about the writers shortcomings?
III. Is it loshon hora to tell him?

I will first explain some basics of the halachic issues that we have just mentioned, and then discuss how they apply to our situation. Many of the topics that I will mention require much fuller treatment, which I hope to address in a different article.

TOCHACHA

The mitzvah of tochacha is to call to someones attention that he or she has violated the Torahs mitzvah and to give positive encouragement to do teshuvah. To paraphrase the Rambam (Hilchos Deios 6:7):

One who sees a fellow Jew sin or acting in a wrongful manner is required to influence him positively by speaking to him in a soft way, privately, educating him that it serves his own self-interest to correct his ways for this earns him olam haba.

Thus, Meirahs first step of explaining gently, patiently, and sympathetically to the writer that she had done something wrong fulfilled the Torahs mitzvah in an exemplary fashion (VaYikra 19:17). (The subject of tochacha is a subject much larger than I can cover in this article.)

IS PLAGIARISM EVIL?
Has a writer who lifted paragraphs done something wrong?

Although Meirah and most writers, editors, and publishers would be appalled at a writer lifting extensive material from a source without crediting it, is this indeed halachically prohibited? Some might argue that there is no evidence that the Torah bans plagiarizing. They will argue that although the Gemara (Megillah 15a) states, "One who quotes his source brings redemption to the world, as we see from Esther, who told the king in the name of Mordechai," this quotation demonstrates the contrary -- that although it is meritorious to credit ones sources, it is certainly not required.

If the writer ascribes to this opinion and contends that she has done nothing wrong, it may be forbidden to tell the employer unless she is endangering him. As the Rambam teaches, "Telling something that will damage someone elses person or property is loshon hora" (Hilchos Deios 7:5). If the writers act is halachically justifiable, then jeopardizing her employment violates the halacha.

Nonetheless, several halachic concerns may be involved in using plagiarized material:

1. Since publishing norms disallow copying without reference, the employer expected an original article. Therefore, submitting an article that someone has not written himself as original work is deceptive and violates the laws of Choshen Mishpat.

2. Because plagiarizing is considered unacceptable to the outside world, it may be prohibited halachically either as potential Chillul Hashem (desecrating Hashems name) or under the heading of dina dimalchusa dina, the halachic obligation to obey the laws of ones country of residence. Although both of these subjects are very important, their details are beyond the scope of our current topic and will have to wait for a different article.

3. If a publisher of copyrighted or plagiarized material can be held liable, a writer submitting such material may be jeopardizing the publisher.

MY LETTER TO THE ATTORNEY
In order to verify the answer to this last question, I penned some questions to an attorney I know:

"Trust this letter finds you and yours well.

"I was recently asked a shaylah for which I need some legal information:

"Is it illegal to take paragraphs from an article on an Internet site and include it an article published under ones own name? Is the magazine or newspaper liable even if they are unaware this was done? What are the legal ramifications/penalties that could be involved for either the author or the publisher? Is this usually/sometimes/never prosecuted?"

THE ATTORNEYS RESPONSE
"Dear Rabbi,

"It is illegal to publish material written by someone else under your own name. Although there may be criminal penalties in the case of deliberate fraud, most of the cases are civil complaints. In cases of fraud, treble damages could be assessed. In the United States, this is usually a misdemeanor punishable by fines up to $50,000 and a year in jail. In some jurisdictions and under certain circumstances, it could be a felony, or even a federal felony punishable by up to $250,000 and 10 years in jail.

"In addition, both the magazine publisher and author can be held liable for damages resulting from the infringement. If a writer plagiarizes without the knowledge of the publisher, the publisher can still be held liable. The writer is his agent, and the acts performed under the scope of his duties make the publisher liable.

"There are three different classes of damages - actual, ill-gotten-gains, and statutory. The prevailing party can also be awarded attorneys fees.

"The frequency with which this is prosecuted depends on the level of outrage on the part of the infringed-upon author; also on the intent of the plagiarist. This case is actually worse because it shows a deliberate effort to steal work."

I must admit that I did not realize that plagiarizing an article could involve such serious consequences. Although I do not plagiarize other authors halachic writings, I now have an added appreciation of the importance of writing my articles myself!

TELLING THE EMPLOYER
Since we now recognize the liability for publishing plagiary, must Meirah notify the owner that he may have a plagiarizer on staff?

In general, if I am aware that a fellow Jew is being harmed financially, I am responsible to bring it to his attention. By doing so, I fulfill these different mitzvos:

A. Lo saamod al dam reiecha, do not stand by idly while your neighbor is in danger. (VaYikra 19:16).

This mitzvah includes not only saving someones life or limb, but even saving his money (see Sefer HaMitzvos, Lo Saaseh #297; Shaarei Teshuvah 3:70; cf., however Shaar Mishpat, 28:2). For this reason, if I see someone damaging another persons property, I am required to attempt to stop the person from damaging. (I am not required to if I may be injured or suffer a loss as a result.) Similarly, if I witness a fire on someones property, I must call the fire department, even if there is no risk to anyone.

B. Hashavas aveidah, returning lost objects

Alerting someone to a potential loss of property is also part of the mitzvah of returning his lost object (Gemara Bava Metzia 31a; Shaarei Teshuvah 3:70). Therefore, if I see someones automobile left with its lights on, I am responsible to tell them so that they can turn them off and not waste their car battery. The same halacha applies if I discover that someones employee is using company time for private matters without permission.

C. Veahavta lereiacha komocha, love your neighbor as yourself

This mitzvah includes making sure that someone else does not suffer a loss, since I would certainly want someone else to forewarn me and protect my interests (Maadanei Yom Tov, Niddah 9:5:6).

It would seem that one must tell an employer if his employee is not performing his job properly, either because he is lacking the necessary skills, is unaware of his responsibilities, or is unethical. However, the details of these halachos are more complicated. For example, several other details that must be met, including that the notifying person must be certain of the facts himself, and reasonably sure that he can rectify the problem by discussing it with the employer. In addition, he should clarify that the employee will not suffer more than halacha permits in the situation (Chofeitz Chayim Chapter 10). For example, if the employee is less skilled than others are, but can perform the task adequately, one may not inform the employer. This is because informing the employer may jeopardize the employees job unjustifiably. Similarly, if the employee erred once and will not likely repeat the error, there is no reason to inform the employer. However, if the employee is likely to repeat the error and jeopardize the employer, it is a mitzvah to tell the employer.

Therefore our question now becomes:

Is the writer now aware of what she is expected to do? Is the employer still at risk because the writer does not know or care?

Assuming that one is absolutely certain that the author now understands why she may not simply plagiarize someones article, there is no reason to tell the employer. Since the writer feels remorseful for what she did and understands why it was wrong, there would be no reason to inform the employer of her misdeed. The author may simply have been unaware of these laws and misunderstood her instructions; one should be careful that she does not lose what is rightfully hers since the employer may jump to conclusions and fire her unjustifiably (Chofeitz Chayim 2:9:5).

JUDGING FAVORABLY
But what is the halacha if the editor is uncertain whether the author understands that it is wrong to plagiarize? In this instance, we should examine the halachos referred to as dan lekaf zechus, judging favorably. Let us examine these laws:

There are three categories of people.

1. Someone who is known to be G-d-fearing

One is required to assume that he did not do something wrong even if the situation implies that he did. Thus, if you see a well-respected Rav do something that appears to be dishonest, one should assume there must have been a proper reason for his act, even if it seems very unlikely. Nevertheless, one may consider the possibility that a wrongdoing was performed to the extent of protecting oneself from harm (Chofeitz Chayim 1:6:10).

2. Someone who is usually careful in halacha but occasionally slips

A. If he did something that can be interpreted either negatively or positively, one should assume that he did the correct thing.
B. If circumstances imply that he did something wrong, you should regard it as unresolved.

3. Someone who regularly does evil
One should assume that he will continue to do evil, even if the chances are more likely that he did the correct thing (Shaarei Teshuvah 3:218).

WHAT SHOULD MEIRAH DO?
In our case, the practical question is whether Meirah may and should assume that the writer now understands her responsibility and will be careful. If the writer was indeed a halachically meticulous person, one should mentally assume that they are now careful. However, one may double check periodically to see that the material submitted is original.

Should she share her concerns with her employer?

Unless Meirah feels comfortable that the writer now fully understands her responsibility, she should still be concerned that maybe the writer does not understand her responsibility. If Meirah feels that the writer may not, she is required to tell the owner about the writers indiscretion (Maadanei Yom Tov, Niddah 9:5:6, quoted by Beer Mayim Chayim 6:29). In the case at hand, if Meirah felt that the author did not take her admonition seriously; she felt that the writer does not realize that what she did was wrong, but was simply placating the editor, then she should bring this to the attention of the employer.

EPILOGUE
Based on my halachic advice, Meirah apprised her employer of the situation, and advised the writer to discuss the matter with the employer. In her note to the employer, she wrote:

"I am worried because neither shame nor remorse was expressed. I do not actually know if she understood the problem or how she feels about it.
After much thought and after receiving halachic advice, I sent her an e-mail that I think this matter should be discussed with you.

Kol tuv and hatzlacha,"

The employer responded:
"I think the lack of remorse stems from the writer not even realizing what she had done wrong. I have now made it clear to her that when researching articles the writer must actually rewrite every single word of the information she is using. Furthermore, I gave her other clear and specific guidelines."

Meirahs final comments to me on the subject:

"The employer gave no indication that he is planning to fire the writer, which had been one of my major concerns in this whole incident - and possibly would have been a reason not to report her actions to the employer. I hope we can work together well in the future and that she now understands what was wrong with what she was doing."

So do I.

This article was originally published in the American edition of the Yated Neeman

This Shiur is published also at Rabbi Kaganof's site


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