Category: Writers

Plagiarism: Academia’s propaganda

  • As far as writing as a student goes, I do not know what your college life has been like. But my law school professors always said that every paper is judged against the degree of plagiarism found by a computer. And if you ask what happens if the software is wrong; and how on earth do you measure ideas and creativity by allotting a number? my law professors used to resort the popular slogan of this how things are done.

  • I found this not just unfair, but a convenient excuse for my professors not to read my paper. According to them, the software could never go wrong and the plagiarism report was a reflection of my bad writing.  Being the smart-ass I thought I was, I parotted the popular phrase Good artists copy and great steal and naturally, this invited a week’s suspension without attendance. Given that I had to maintain 75 percent attendance as part of being a student at the institution, this wasn’t one of my smartest decisions, since a missing classes for a week can negatively impact your overall attendance. In hindsight, I should’ve known better. But at the same time, this little experience taught me what college professors often, on purpose don’t tell you i.e. Good artists do copy and great artists do steel. In other words, to copy is not a crime unlike what the academics tell you.

Understanding Plagiarism

  • Etymologically, the word is a derivative of Plagiarius meaning kidnapper or copycat.  There’s a wide spread debate regarding the carbon-dating of the of the term. Popular lore states that the origins of this non-recognized legal crime dates back to the days of the Roman Empire; that stories and poems of poets were copied and recited to large gatherings without attributing credit to the original story-teller or poem-reciter. This pissed off most of the story tellers who, then declared, those who recite or narrate without attributing credits shall be punished, or so the story goes as per my esteemed professor in Intellectual Property Rights.[This is the douche bag who suspended me]. So much for attributing credits, he never told me where the story came from. It felt like he was a teacher not of law, but of hypocrisy.

  • Still, there’s a lot that doesn’t make sense to me. For starters, what is the crime? Is it the failure to give credits to the original creator of the idea or claiming an idea that is somebody else as yours? To decode what exactly plagiarism means, let’s look  every student’s greatest nightmare:  Uncle Turnitin. A software that tells you that your paper is highly plagiarised.  According to  Uncle Turnitin, there are 10 commandments that determine if your writing is plagiarised I.e.

        1. Clone: If you directly copy somebody else’s work and claim it as yours.
        2. Ctrl+C: When you copy certain sections or paragraphs without referencing its source. ( Only noobs resort to this).
        3. Find + Replace: When you change certain key words and phrases but retain the essential content of your source.( uh?).
        4. Remix: When you paraphrase from multiple sources and make it fit together. ( Does that make every song that has been remixed plagiarised?)
        5. Recycle: Borrows ‘generously’ from another writer without saying its from them.       ( Great artists do indeed steal).
        6. Hybrid: When you copy paragraphs from cited in another paper and do not attribute its source.( Why not remix?)
        7. Mashup:Are you kidding me? Apparently, it’s when you mix copied material from multiple sources.
        8. 404 Error: When you include citations that point to non-existent or inaccurate information about sources. Hell no. Really? For a Plagiarism software that determines literary theft they surely do a poor job in naming this kind of theft. By this I mean that this is a concept all you nerd programmers maybe familiar with I.e. the Hypertext Transfer Protocol Standard response code 404(“ HTTP 404, Page Not found or Server Not Found”). For those who are not familiar with what this means, this code appears when your browser communicates with your server, but could not retrieve what you requested.
        9. Aggregator: This isn’t as aggressive as it sounds. In the sense, it is the kind of thing of essay you submit if you ask somebody else to do it for you I.e. it may contain proper citations but the paper contains almost no original work. Turnitin, you’re now pushing it.
        10. Re-tweet: Real smooth, so much for originality. According to Turnitin, despite including proper citation, somehow your work relies too closely on the text’s original wording/ structure. What the? I am attributing credits, but yet you[Turnitin] feel that it’s too similar to the original text? You’re acting like my grumpy grandpa.
  • I do not know about you, but as far as I am concerned most of these principles do not make sense. Why you ask? To this, I ask you to consider the following questions:
    • Do original ideas exist?
    • What’s the point of punishing a ‘literary theft’ ?
    • Who wins?

I. Do original ideas exist?

  • On my quest to improve the way I write and communicate, I fortunately stumbled on The Art of Plain talk by an Austria- American author, Rudolf Flesch. He says that to write effectively, you must be in a position to formulate the outline or shape of your writing. As simple as this sounds, to create an outline, you must coherently visualise and articulate your idea. According to Mr. Flesch, to do this, you must understand where ideas come from. Ideally, you’ll have to spend more than a lifetime understanding the nerosceinces behind this, but Mr. Flesch tells us that if you have a brief idea of this, it’ll take you a long way. Thus, to this extent, every writer will tell you the more diverse experience you have, the more perspective you can bring in. And one of the easiest way to gain perspective is to peak into another person’s experience I.e. through books.
  • Similarly, every musician, director, activist, lawyer and judge will testify  to the fact that books have a way of influencing your lyrics, perspective, view-point, argument and judgement. So in that sense, no idea is ever ‘original’ so to say. In other words,  every idea is the sum of the experiences you’ve had, even if these experiences are a second-hand account of it. Thus, when you create an outline of your script, lyrics or opinion—Although they maybe yours at the end, they are essentially the resultant vector of the scope of experience and information you’ve processed. Also, consider the roots of the word ‘original’ which mutated from Latin and French that denoted begining, birth or first. Now here’s the thing, you and I are definitely not the carriers of first principles as far as generating ideas are concerned and thus, every idea you have is a derivative of what is considered as the ‘original idea’.
  • So what the hell is all this racket regarding stealing ideas? Plus, by the standards of uncle Turnitin; how the fuck do you measure the ‘ originality of a piece’ through numbers? I get the universality of language spoken by numbers, but given humanity’s versality and diversity, what do we want to achieve by assigning numbers to something that is a by-product of an organic process generated by our neurons?  With all this, ask yourself this: are ideas ever original?

II. WHAT’S THE POINT OF PUNISHING A ‘LITERARY THEFT’?

  • This is a question to the strict-law-abiding-well-read faculty members of law schools everywhere: by deeming a piece of writing as ‘plagiarised’ what purpose do you seek to achieve? To ensure that your deep-seated ego of ownership of some form of Intellectual Property is satisfied? really? How’s that worked out for you so far?
  • To put things into perspective, nobody held Apple responsible for ‘stealing’ Xerox’s idea of a mouse or nobody declared the winner of The Current War between Einstein and Nikola Tesla. As limited as these examples might be, you can’t deny that Apple and Einstein were the winners, since their ideas were translated into something tangible in reality; their smart marketing strategy invited unmatched world-wide recognition of who they were. If stealing ideas was illegal, that makes every billionaire a crook, a definition, to which, I do not personally subscribe to.
  • Alternatively, let’s consider if plagiarism was actually punishable by law, what would that look like? A world more chaotic than now, for sure. If uncle Turnitin’s standards determined the law[think on the lines of corporate lobbying here],then every sane person will be labelled as a ‘literary theft’.  Go a little further, if you were found guilty of this charge ; you were punished with a sentence of imprisonment– prisons would be one of the most intellectual places on planet earth. Come to think of it, most of the educational institutions fit within this definition, don’t they?
  • Thank god that our laws do not recognise this unreasonable, delusion form of crime that academic circles recognise.

III. WHO WINS: US OR THEM?

  • The academic circle treats you like another brick in the wall and you feel that this creates an Us vs Them divide. Noam Chomsky and others explain the purpose and power of large institutionalised systems. It’s not just about your educational system, it’s about what they do and why they do it. Most and read this again, NOT ALL educational systems survive on two universally accepted forms of currency: Money and reputation. In other words, If your institution aligns with satisfying those interests that come with deep-pockets, your institution gains a lovely recognition within the required academic and professional circles.
  • How is this related to plagiarism you ask? If you were as unlucky as I was, then your professor is not just a stickler to rulers but is a sycophant to their immediate boss, who in turn, is friendly with the guys that hold a deep-pocketed interest in your university. Here, interest could mean money, religion or some other shade that plagues the orientation of your teaching. So anything that disrupts the chain of interest[ which may include your supposedly plagiarised paper] will serve as a liability and if to many hands get to it, may destroy their so-called reputation.
  • For the longest time, I couldn’t make sense of what Pink Floyd sung, and my long term suspension,  because of this stupid plagiarism nonsense put things into perspective. And ever since, I believe that the longer I was in law school, the more I learnt in the negative. In other words, among other things,  it took 4 years for me to understand that determining whether your writing was plagiarised was a form of power they wielded so that they can remain in control of your ideas, and what you are.

 

 

 

FORCE MAJEURE: THE HELL OR WATER HIGH CLAUSE

  • Old wives’ tales have it that in the event Hell falls or water rises, you must do you job, no matter what. If you are a party to a contract where the performance of which was interrupted because of the outbreak of the virus— you ought to pull that contract out and look for that section of your contract that talks about whether you can be excused for not doing your work during the lockdown . Although not headed as such, the fancy name the legal industry is asking you to take a peak is the clause of ‘force majeure’.

How do you recognise a force majeure clause?

  • History states that the phrase was conceived to mean: an unforeseen or foreseen but inevitable or irresistible event external to the obligor which makes it impossible for him to perform the obligation concerned. In other words, if you cannot perform the contract because of a war, epidemic or harsh storm, then you cannot be held responsible for not doing your part. This will vary slightly depending on the area you’re staying, do check up with the local rules that are applicable in your state, but broadly, if the following parameters are satisfied, then force majeure may apply:

    • If the event is beyond the control either of the parties; is not self-induced;

    • The nature of the event must be unforeseen or foreseen but inevitable or irresistible;

    • The event must make it impossible for the performance of the obligation

  • Here, the underlying principle is that possibility is the limit of all obligations (ad impossibilia nemo tenetu). That is to say, you are not expected to perform the impossible. As such, you must be in a position to show that because of the occurrence or non-occurrence of the event, you could not discharge your duties under the contract. Here, it is pertinent to take note of the fact that impossibility of discharging your obligations is synonymous to impracticality of discharging them. Moreover, the partially paralysing event should not just be external, but should not be attributable to either of the parties. To gauge a general idea of the type of events that usually render a contract non-feasible, see: https://ppp.worldbank.org/public-private-partnership/ppp-overview/practical-tools/checklists-and-risk-matrices/force-majeure-checklist/sample-clauses.

Law 101

  • The phrase force majeure owes its roots to the Civil Law System. Insofar as judicial interpretation is concerned, the axiom is that the clause must be construed with each case with a close attention to the words precede and follow it, and in regards to the nature and general terms of the contract. This means that obligors are exonerated only on a case to case basis. For all those who think you can hold those slackers who’ve refused to work during the lockdown, be wary of the fact that The Court will oscillate in the direction of saving the performing party from consequences he has no control of.
  • As far as case precedent on this aspect is concerned, the popularly referenced case is Taylor v Cadwell.[1] In 1861, the claimant hired a music hall in Surrey for holding four grand concerts. However, a week before the first concert was due to take place, the music hall was destroyed by an accidental fire. Consequentially, the claimant bought an action for breach of contract for failing to provide the hall; sought damages for the expenses incurred. On the 6th of May 1863, The Court held that in contracts where the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance. In this regard, The Court observed that this contract merely contemplates the performance of the obligation and not the excuse of performance in case of destruction of the person or the thing; here it is pertinent to note that the excuse is by law implied, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the Music Hall.
  • Thus, having ceased to exist, without fault of either party, both parties were excused I.e. the plaintiffs from taking the gardens and paying the money; the defendants from performing their promise to give the use of the Hall and Gardens and other things. It is interesting to note that prior to this case, the position of the law was that a contract must be honoured whether water rises or hell falls. As far as the Indian Contract law is concerned, the relevant provisions you need to take note of is Section 29, 31,32 and Section 56 of The Indian Contract Act,1872.

Is ‘force majeure’ the same as ‘Vis Major’?

  • No. Just because they maybe related does not mean they are the same. The difference in definition lies in the scope and degree of the occurrence or non occurrence of the event. Events such as strikes, breakdown of machinery may qualify to fall within force majeure and not vis major or Act of God. In other words, force majeure is interpreted as a phrase that invites a larger meaning than Act of God. In this regard, let’s say because the pandemic, the government enforces embargos; therefore you were impacted to the extent that your duties were rendered as impossible. Will this constitute as a force majeure? As per Lebeaupin v Richard Crispin and Company[2], it will fall within force majeure. Is ‘force majeure’ the same as ‘frustration of contract’?

Is ‘force majeure’ the same as ‘frustration of contract’?

  • It’s mumbo jumbo like this that pays my bills. The interpretation of the letter of the law states that a contract is frustrated (and terminated automatically) when an event occurs that makes the contract simply impossible to perform, or the obligations become fundamentally or radically different to those originally undertaken. Sounds similar to force majeure right? If you’re one that has an eye for details, you’ll recognize that in order for a contract to be frustrated, the event should destroy the purpose of the contract.The crucial factor in trying to establish whether this doctrine applies to a contract is to identify the parties’ contractual obligations at the date of the contract, and how the particular event in question alters them.

  • This means that delayed performance, as opposed to events that materially alter contractual obligations generally do not amount to the frustration of a contract. If the delay is particularly long, or has a serious effect on contractual obligations (such as missing an event), the impact on the obligations might be sufficient to amount to frustration.

C. Why do you need to know this?

  • Whether you’re a judge, a lawyer or a law student, once this lockdown is lifted you need to be prepared to tackle the massive legal storm that is going to flutter your desk. The purpose of this entry was to introduce you to the terms that your lawyer might discuss with you. If you are interested in learning more on the fate of commercial business, I suggest you hit your history books and refresh your memory when it comes to business post World Wars and epidemics.
  • If you know you cannot afford a lawyer for something like this, don’t worry, the internet can be your professor. All you have to do is spend time learning how to navigate through online legal database systems and look for cases that have dealt with delivery of shipments and cargos in the context of failure of delivery or delay of delivery. I suggest this bracket of case laws since delivery of shipments have historically been subjected to some form of contingency I.e. in the form of wacky weather or failure of shipping equipment etc.
  • Plus, in the long run, with a basic understanding of this basic law, you will not sell yourself short. In the sense, you shouldn’t be picked on or bullied into something that is fundamentally exploitative and downgrades your value. I understand the economy is sinking right now, but trust the age old wisdom that states that knowledge is power. Presuming that your work was suspended because of the pandemic, with this information, believe it or not, you’ll level the bargaining playing field and make sure nobody holds you liable for something you could not do.

[1][1863]EWHCQBJ1122 ER 309;3 B. & S. 826.

[2] [1920] 2 K.B. 714.

Part I: Exploitative Contracts: Understanding the Symptoms of the disease

  1. More often than not, as a freelance writer, you are instantly turned-off when you encounter legal jargons that forms the scheme of your contract. Trust me when I say this—lawyers are too.In my noob experience, let me tell you this, the writers I have dealt with usually never end up reading their contract. Especially, If you are an Indian writer trying to make it big, numerous times I have seen how you people usually almost never read your own contract. As a writer I assume you will attempt to give it a read, at the least. I get it, the big bad legal world scares you, but that shouldn’t stop you from trying to read it. To begin with, I’ll help you figure out the symptoms of an exploitative contract. And through my subsequent entries I’ll tell you what law states so that you can explore options. For starters, you may want to with hold your signature on the contract if it shows the following symptoms:

  2. It looks like a template : Note this: Lawyers, Secretaries and other professionals in the Legal Industry are usually busy. In other words, you are another little brick in the wall of their world; they do not have the time and day to create a special contract just for you. They end up giving you a template of a contract with a few changes made to it. Your Job is this:read the contract very carefully.One of a lawyer’s oldest trick in the book is to complicate simple sentences, especially if they know that you cannot afford a lawyer or don’t care to seek a lawyer’s opinion. Don’t let the colonial words persuade you into giving up understanding it. Thus, if it looks like a general template, be ultra-careful.
  3. Overdosing on Legal Jargons:  Overdosing on anything is not okay, especially on words. If you cannot understand anything even after spending minimal time on it, high chances are it’s them and not you. As cliched as it sounds, read it again. Convoluting sentences for reasons that ceases to find roots in common sense is a common practice among lawyers. My advice: try googling the meaning and making a comment adjacent to the word, so that when you read it as a whole—you’ll be able to substitute the meanings.
    • Get Paid!: Remember this: every major publisher/ production house usually looks to save up on money, so more than anything make sure you are able to understand the terms of your payment. I had to deal with numerous cases where writers have submitted scripts to these large production houses and at the end of it— they did not receive a penny. Why you ask? Those ninnys signed the contract even when it said “ You accept that payment will be rendered upon the employer’s satisfaction of your work”. Translation: You get paid only if your employer is happy with your work. Ding- Dong! YOUR EMPLOYER WILL NEVER BE SATISFIED WITH YOUR WORK! Any 10 year old can recognize this. Moral of the story— at least understand the terms and conditions of the payment you are about to receive.
    • Do not agree to cover for your employer’s losses: In other words, if you come across the clause “Indemnity”  which  reads as something on the lines that if your employer undergoes any losses, you’ll agree to compensate for the  losses. Why should you be responsible for your employer’s loses? Exactly! you shouldn’t, you never should! What does this ‘indemnity’ even mean? Indemnity is like your insurance. For example, take life insurance, in case your life is insured, then on your death— your near and dear ones( depending on the terms of the contract) will receive a monetary sum that is estimated to be the value of your life( Only according to the world of money)
  4. What are you entitled to as a Writer? How do you know what you are entitled to by the fact that you are writer? To understand this, you’ll have to understand your “Rights”. This is important so that you can prevent a large corporation from profiting off what you do not know—that is your rights. If your fellow writer friend tells you, it doesn’t matter as long as you are paid. Those pearls of wisdom are in direct contradiction to common sense; do not listen to them. If you do not know your rights, find out. If you cannot understand it, I think I may be able simplify information to the extent that it might help you and will put out another post on the it. In the meantime, set your inner wild child  free and exploit the internet!