Greg Mandel et al. on the Plagiarism Fallacy in IP

Greg Mandel (Temple Law) has done some interesting empirical work on public perceptions of IP. In his latest work, Intellectual Property Law's Plagiarism Fallacy, he has collaborated with two psychologists, Anne Fast and Kristina Olson (University of Washington), on three new studies. They conclude that debates over whether IP should serve incentive or natural rights objectives are "orthogonal" to the most common perception about IP, which is that its function is to prevent plagiarism. They argue that this "plagiarism fallacy . . . . helps explain pervasive illegal infringing activity on the Internet" as stemming from a failure to understand what IP is rather than indifference toward IP rights.

The three studies were performed with U.S. adults using Amazon's Mechanical Turk. In the first (50 respondents), the overwhelming majority of respondents thought copying someone else's creative product was unacceptable, with the majority basing their response on moral or ethical rather than legal reasons. In the second (116 respondents), participants ranked plagiarism as the primary basis for IP rights more often than other commonly accepted bases.

In the third and most complex study (443 respondents), participants reviewed vignettes related to creative products in medicine, electronics, software, books, music, or painting, and answered questions about whether IP does or ought to provide protection in the scenario. The vignettes were varied based on whether copying was of the idea, an expression of the idea, or the full product. Respondents' preferences were for weaker IP than either their perceptions or the actual law, although preferences varied by context. (Interestingly, software was the area with the greatest preference for strong IP rights.) The experiments also tested whether preferences would change if copying were for educational purposes, for noncommercial purposes, done with permission, or done with attribution. Respondents overwhelmingly thought every mitigating factor should reduce liability, with 62% believing that attribution enables free copying regardless of the other factors (see Fig. 1).

According to the authors, "It is hard to understate the import of the attribution results relative to actual law. A legal rule permitting attribution to defeat infringement liability would essentially eviscerate intellectual property protection." They argue that this widespread misperception helps explain behavior such as the nearly one million YouTube videos with the misguided disclaimers "no copyright intended" or "no copyright infringement intended."

For readers who want to get deep into the weeds, participants in the third study were also queried on IP knowledge and experience, general opinions on IP, and demographics, and you can see the results of these questions by downloading the paper. But I'm more interested in the implications of their main result. The authors argue that their "results raise stark concerns for the public legitimacy of intellectual property law." My initial reaction was that the public isn't really the audience for IP laws, but individuals do have increasing capacity to both infringe and create IP. Would polls about mitigating factors in other areas of law show a closer connection between the understanding of legal scholars and the public? In a recent article, Jeanne Fromer suggested that a robust attribution right might provide an important expressive incentive in IP, and it might be worth rereading her article in light of these new results.