Volume 54 Number 35
Produced: Tue Mar 20 5:33:12 EDT 2007
Subjects Discussed In This Issue:
Mi she-Berakh for Agunot (4)
[Yael Levine, Avi Feldblum, Orrin Tilevitz, Avi Feldblum]
"Why Copyright a Prayer?" (2)
[Leah S. Gordon, Avi Feldblum]
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From: Yael Levine <ylevine@...>
Date: Mon, 19 Mar 2007 17:51:37 +0200
Subject: Mi she-Berakh for Agunot
In response to Orrin Tilevitz's post, I'll mention concerning "fair use"
in the copyright law that, contrary to what he wrote, clear distinctions
between "fair use" and infringement may indeed be made. "Fair use" means
partial use. Translating an entire work is beyond that. Since the entire
work was translated, and not only those portions which the translator
sought to criticize, it went beyond fair use. It is precisely attempts
such as these, by people who are not totally familiar with the entire
range of sources upon which the prayer was based, and consequently could
not possibly produce an accurate translation, and attempts to "overtake"
the work of others, from which I have to protect the work. The prayer in
itself falls under the category of an independent literary work, despite
the fact that Orrin called it "short". One reaction I received was that
it is long in terms of a prayer. I've been exposed in the past to
copyright matters with regard to requests for reprinting etc. In this
connection I'll refer to what Orrin further wrote: "I am no copyright
lawyer...I believe the fourth factor is regarded as the most important
one". Unfortunately, I reject your interpretation. I consider it
extremely serious to be accused of trying to control people's thought
processes. Again, you are "hoshed bi-ksheirim," in public, without any
basis whatsoever. This in itself is problematic halakhically, and does
require in my eyes a request for "mechila" on the same forum on which it
was voiced. The law states clear cut that the author holds the
translation rights. This is a basic right which is not debatable in my
eyes. I'll just mention that on the other email list on which this issue
surfaced, this was the unequivocal opinion. In this regard I'd like to
thank Avi for his insight: "I too claim no legal qualifications, but from
a lay perspective I thought that copyright law also had as a purpose to
allow the copyright owner to maintain 'artistic control' over their
ceation. It seems to me that this is what Yael is doing. She is not
trying to 'control people's thought processes', but to control the
artistic content / accuracy of a derivative work, i.e. the
translation." I indeed consider this to be the underlying factor.
Consequently, a focal point, to my mind, is that since the translation
posted came about "be-issur", for myself it is not at all a frame of
reference to which I have to relate. I also wonder halakhically what the
precise "geder", status, is. For example, when someone does on Shabbat an
"issur melakha", one is not permitted to derive enjoyment from it. So the
question arises what is the stature of a translation carried out
"be-issur". As I wrote, this translation is not something that I myself
feel I have to relate to at all. Nevertheless, I did agree to point out
several of the mistranslations.
Avi wrote that he thinks my claim that the translation is faulty in the
majority of places was perhaps an exaggeration. As I wrote, I did point
out several of the errors, bringing only several of the examples. There
are more. Avi feels that "only one of them, at least to me, represents an
element of translation that may significantly alter the meaning of the
prayer (rightly vs chains)". I believe three of the four other examples I
brought also clearly alter the meaning entirely. The examples are: "The
translator further erroneously wrote '...raise up their redemption'. The
Hebrew is 'yarim et karnan'. 'karnan' is not at all redemption. It is
further stated: 'bring up to them length of days and health'. The Hebrew
nusah is 'ya'ale la-hen arukha u-marpe'. This is based on a biblical
verse. The meaning of 'arukha' is not at all 'length of days' but rather
is synonymous to health, i.e. G-d will repair and heal them. 'may they
have no ___ or brokenness.' This was left blank, of course. The Hebrew is
based on a verse in Eicha."
Another point Avi raised had to do with Brandon's query, why I would like
to copyright a prayer. I do believe I offered a sufficient response, i.e.
I didn't copyright it. This is granted to every writer under the law. As
I mentioned, it is precisely because of attempts to control, dictate,
misinterpret, and mistranslate that I have to show caution.
Avi wrote in conclusion: "For the purpose of publicly reading the Mi
she-Berakh, we should wait for an authorized translation either from Yael
or approved by her." I hope to publish my own authorized translation in
due time. However, I can not see myself approving a translation carried
out by someone else.
Yael
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From: Avi Feldblum <feldblum@...>
Date: Tue, 20 Mar 2007
Subject: Mi she-Berakh for Agunot
Yael writes that she wonders on what the halachic status of Lisa's
translation should be, since it was unauthorized and therefor, according
to Yael a violation of US copyright law, should that be viewed similar
to the result of a chillul shabbat action that causes the result to be
asur be'hana'ah - forbidden to have enjoyment from. I suggest that Yael
review the overall set of halachic principles here, the creation of an
issue hana'ah from the action of doing an issue would require a specific
source. In general the end result of something that involved an issur in
it's generation does not create an issue hana'ah.
Yael further writes that as she did not feel she needs to relate to this
translation. I fully agree with her on that point. The issue is that she
did relate to it. She made specific claims about the translation. I
still maintain that those claims are incorrect. What is more to the
point, to me, is that the translation was made as a vehicle to discuss
the content of the prayer. Yael has not responded to any of the points
of the content, except to say it was "clearly dismissed and
denounced by virtually all listmembers" on this other list it was posted
to. If indeed, there is a clear answer to Lisa's criticism's from the
other list, I would be happy to see someone summarize them for this
list.
To the details of Yaels response that the other three examples clearly
change the meaning entirely, in support of the claim that the
translation is incorrect in the majority of places, in one case, the
translation of the word "karnan", she has now twice stated that the
translation is incorrect, but not given any alternative translation, so
it is difficult to gauge whether the correct translation with
substantially change the meaning of the overall sentence. In the second
case, where Lisa did not translate the word, and Yael twice does not
offer any translation, I see no way to claim that the non-translation is
incorrect. In the third case, where the translation was 'bring up to
them length of days and health' and the correct translation according to
Yael is along the lines of 'G-d will repair and heal them', I do not see
that as changing in any fundimental manner the overall meaning of the
sentence. If we go back to the basic criticisms that Lisa brought
following the translation, I do not see that any of the listed
mistranslations impact any of Lisa's questions.
Avi Feldblum
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From: Orrin Tilevitz <tilevitzo@...>
Date: Mon, 19 Mar 2007 08:53:02 -0700 (PDT)
Subject: Mi she-Berakh for Agunot
Avi writes:
> I thought that copyright law also had as a purpose to allow
> the copyright owner to maintain "artistic control" over their creation.
To a limited extent. I would guess - I'm still not sure - that Lisa
would have infringed Yael's copyright had she prepared a translation for
"performance", i.e., recitation in shul. But she didn't; she published
the translation solely to criticize the original. That's the first
factor in the fair use doctrine. Yael's claim of infringement is valid
only if there is a blanket rule forbidding unauthorized translations of
an entire work no matter what the purpose, the length, or its effect on
the probable market. I'm not sure, but I don't think that's the law.
> It seems to me that . . . Yael is . . . is not trying to "control
> people's thought processes", but to control the artistic content /
> accuracy of a derivative work, i.e. the translation.
I don't see how those differ. She's basically trying to dictate what
the prayer means. I suspect Yael would have objected to the translation
just as much had Lisa translated only those portions she felt were
objectionable, something Lisa could have done lechulei alma under the
fair use doctrine.
> For the purpose of publicly reading the Mi she-Berach, we should wait
> for an authorized translation either from Yael or approved by her.
To what end, unless you are arguing that this prayer means only what
Yael says it means? And if Yael never issues a translation, are you
saying that nobody may ever translate it?
Something else to consider, and I think this is really the point of
Brandon's question. Just because one has a legal right does not mean
one may morally assert it. I believe a shul could legally exclude all
mechalelei shabbos, non-charedim, charedim, homosexuals, etc. Most of
us would be appalled if a shul did so. I considered making this point
about Yael's assertion of copyright infringement, which offends me, but
didn't when I concluded she might not have a legal claim.
(Incidentally, copyright infringement in halacha is a subset of hasagat
gevul.)
Perhaps I'm being unfair, but I suspect Avi's sympathy with Yael's
copyright rights has something to do with what I suspect is his sympathy
with the prayer. I have no such sympathy, for reasons having nothing to
do with its content. There's a misheberach inflation going on. In our
shul, I inherited the prayer for the Israel and for the government, and
a misheberach for Tzahal. After the U.S. invasion of Afghanistan, at my
suggestion we added an RCA prayer for U.S. soldiers. That's four. Over
the years I've seen put on the shulchan, from where we say these
prayers, a misheberach for Jonathan Pollard, for those who don't talk in
shul, for Israeli prisoners, and numerous others. I don't know who put
them there, but as the gabbai I disposed of them all. And the one for
agunot would suffer the same fate.
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From: Avi Feldblum <feldblum@...>
Date: Tue, 20 Mar 2007
Subject: Mi she-Berakh for Agunot
Orrin, I would suggest that you focus on what people have written, not
on what you think people would say or would have sympathy with. Those on
this list who know me, will likly chuckle on your suggestion that I
might have sympathy with public recitations of a Mi she-Berakh during
tefillah.
Avi
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From: Leah S. Gordon <leah@...>
Date: Mon, 19 Mar 2007 15:33:19 -0700
Subject: "Why Copyright a Prayer?"
Both Brandon and Avi ask Yael "why would you want to copyright a prayer"
regarding her agunot prayer.
I think this is an unfair question. Every author wants (and deserves)
credit for writing his/her texts. Siddurim and machzorim are often
annotated with information about authors, and z'mirot sometimes have
clues/acronyms from their authors as well. The question "why" asked of
Yael in this context seems almost sexist to me. In other words, are
people thinking that she should share her work more than they would ask
a man in the same circumstance, or historically? Is there an
implication that her prayer is more folksy or public-domain, because she
is a woman writing about a female concern? Since I'm the loudest list
feminist, I have to ask these questions. :)
At any rate, since Yael wants her prayer disseminated freely for use,
she should be given credit for authorship and for sharing it. She's
entitled to object to an unauthorized translation, but once a text is
widely used, the author has to put up with all kinds of use - from
satire to misinterpretation - it's a sign of popularity!
The best defense against a mistranslation would be for Yael to write a
translation that is "authorized" and send it out with copies of the
original.
--Leah S. R. Gordon
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From: Avi Feldblum <feldblum@...>
Date: Tue, 20 Mar 2007
Subject: "Why Copyright a Prayer?"
Leah and Yael,
I did quote Brandon's wording, but I though it was clear my
understanding of Brandon's question was not "why did you copyright it",
as it is clear that copyright is something that occurs automatically
with the generation of the content and is granted automatically to the
writer. Rather the question I understood Brandon making, is why would
one want to try and enforce the rules of copyright for a creation of a
prayer that is meant for public use.
To respond more directly to Leah, I do not think that my response on
this topic has anything to do whether the author is male or female. Nor
has there been any indication that anyone is asking that the attribution
of the prayer be in any way "hidden" or removed. It is hard to draw
direct comparisons to similar types of works, since the large majority
of prayers and zemirot are by individual long dead, and where the
copyright protection is long gone. In cases that are more directly
applicable, I can think of the Tefilah for the Jewish State. That
tefillah is less that 75 years old, and clearly was created during the
period when copyright law was in effect. It was clearly written by some
individual(s), probably males, but as far as I can tell they have either
placed that prayer in the public domain, or at least have not made any
attempt that I am aware of to enforce their copyright laws. Any siddur
that publishes an addition, feels comfortable in including that tefilah,
should they so desire. If the siddur has a translation to another
language, they may translate the tefillah into the language of use.
I would ask Leah, are you aware of any prayer that has been created by a
man where they have desired to maintain copyright control and not allow
publication or translation without explicit permission from the content
creator? The case of zemerot might be interesting, several "benchers"
include popular songs into the end, often with translations. Some of
these may have verses created in the last 50 years, so copyright may
apply. Does anyone know of a situation where a bencher had to optain
copyright permission to include or translate?
Avi
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End of Volume 54 Issue 35