Volume 54 Number 43
Produced: Thu Mar 22 7:06:28 EDT 2007
Subjects Discussed In This Issue:
Mi she-Berakh for Agunot (3)
[Yael Levine, Yael Levine, Yael Levine]
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From: Yael Levine <ylevine@...>
Date: Wed, 21 Mar 2007 10:53:39 +0200
Subject: Mi she-Berakh for Agunot
Orrin Tilevitz is in general agreement that "copyright rights extend to
the creation of derivative works, including translations", but seeks to
find ways in which to limit this clause and even reverse it, inter alia
by bringing a specific case in which it was determined "that there would
be no infringement even though an entire work was copied." He likewise
agrees that the prayer is an independent literary work, but raises the
question what the status would be of a work that consists of five words.
Again, he is seeking to find ways to absolve my rights to the prayer. He
further states: "But you have no legal right to protect your work per
se. You have no exclusive right to say what your prayer means. If you
did, then essays explaining what a work means that are not a
word-for-word translation would also constitute a copyright
infringement. But they don't." It is an entirely different matter for
someone to produce a translation and for someone to write an article
which is an analysis of the text. As I've written many times already,
many of the contextual misunderstandings stem from the lack of knowledge
of Hebrew and of the sources of the prayer.
In response to what I wrote: "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.", Orrin
responded: "This is a highly unusual situation, as others have pointed
out. This is very different from a book that will be read by
non-speakers, or a play that will be performed outside the
author’s country. People don't normally copyright prayers. You
are now claiming the exclusive right to translate a work that is
intended to be recited by common people... Moreover, you are claiming
that someone infringed your copyright even though her translation was
not intended to be used, and could not have been used, for recitation in
the environment you intended for your prayer. While I meant no personal
offense, I am very troubled by people asserting legal rights - even if
they have them--with the apparent purpose, and evident effect, of
attempting to stifle discussion." Once again, I find this attitude
extremely harsh and unfortunate, and you have reiterated it now once
again in your last post. I continue to consider the translation carried
out an clear infringement of the copyright, a basic right granted to an
author. Your opinion has been rejected by others, including by the legal
understanding advanced by Joseph Kaplan, a lawyer. As it has been
mentioned, people today don't copyright prayers, since the copyright is
automatically granted to an author by law. It's clear that you have a
problem with it. I suggest you deal with it, and not state that you are
"troubled" by such an attitude, or unfoundedly blame me that I'm trying
to stifle a discussion. You went extremely far in writing that "And if
halacha does not give you such a right, then your assertion of the right
under secular law would itself be a violation of halacha." This is very
extreme, again something I consider to be a totally unfounded serious
accusation, and already abusive.
Yael
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From: Yael Levine <ylevine@...>
Date: Wed, 21 Mar 2007 11:48:13 +0200
Subject: Mi she-Berakh for Agunot
The following is in response to MJ Vol. 54 #49:
I would like to thank Ruth Sternglantz, a lawyer, for her following
observations: "All of this discussion of fair use ignores the fact that
fair use is a 'defense'. That is, if an author claims that I've
infringed her copyright, I can defend by claiming fair use. That doesn't
mean that I haven't done all the things that would (otherwise)
constitute copyright infringement. It means that even though my behavior
ticks all the boxes, I get off, because the law recognizes competing
values of ownership and access. It is a highly contextual defense and,
hence, a mushy standard."
While she further states that the translation was unintentional, I'll
respond by saying that a citizen is required to be familiar with the
governing laws. I was called in to relate to the copyright issues,
against my will, owing to the infringement, which I never fathomed would
or could take place, by anyone who considers himself to be
Orthodox. Again, I consider opinions such as that of SBA "Creating a
hullaballoo over the copyright, IMHO, demeans the entire project." to be
extremely unfortunate and problematic. With the passing of time since
the faulty translation was posted, I realize more than ever the
disservice it did to the prayer, as well as the harm. Sometimes things
become evident only with the passing of time. Using unauthorized
translations fall into the category of a "mitzvah ha-ba'a ba-aveira". It
behooves me how this can be condoned on an Orthodox list.
Abbi Adest wrote: "In any case, I fail to see how the direction of this
discussion about the mistranslation/copyright enforcement of your prayer
has done anything to in any way ameliorate the plight of agunot. If
anything, I'm guessing it's probably pushed a lot more people away from
thinking about or discussing this important issue. Another way Lisa's
mistranslation could have been handled, instead of sinking into the
minutiae of U.S. copyright law, (an area of study where most of us
simply lack the relevant knowledge), would have been to simply write up
and distribute an authorized translation which would allow us to move on
with the conversation. I think discussing the actual prayer would be a
much more productive use of everyone's time and would probably raise
more awareness about agunot than a discussion about U.S. copyright law
and alleged thought control."
As I wrote, I was pulled into the discussion of copyright matters
against my will. This just shows how "aveira goreret aveira", i.e. the
great disservice Lisa did to the prayer. Responding to these emails,
having to defend myself, have obviously taken up much time. I consider,
then, the direct result of the unauthorized translation to also be
"gezel zman", of myself and of others. As I wrote, I have not yet had a
chance to devote a substansive amount of time to the translation. A good
translation does not take a short time. At any rate, I will be granting
the initial English rights to a specific known publication. - while
retaining the copyright.
Lisa wrote : "The rough translation I posted of Yael's work was
completely legitimate. I recognize that it is flawed, but that's not even
the issue. The issue is Yael's claims of copyright infringement, which
have crossed the line into motzi shem ra." I totally disagree. You are
reversing the situation, seeking to blame me for no reason. The
translation is an infringement; you sent an extremely harsh email to this
list; this infringement has resulted in "gezel zman", of myself and of
others. I find it difficult to be "mochel" to all this.
Your claim concerning "fair use" was totally rejected by several
lawyers. You further wrote: "To be clear, Yael posted her work on a
discussion list. On two discussion lists that I am aware of.
Discussion lists where the lingua franca is English. Where the medium
itself makes it impossible for many people to even see the Hebrew text
she posted, and where many listmembers are unable to understand it even
if they can see it." You are attempting to excuse your breach of the
law.
Eitan wrote: "There is another example; the kinot written by Rabbi
Shimon Schwab and the Bobover Rebbe to memorialize those murdered in the
Shoah. In these cases the authors opted for widespread distribution.
Had they insisted on exerting their ownership rights on the material
once they had released it into the public domain, then they too would
have faced some puzzled questions from members of this list (which of
course did not exist at the time the kinot were composed so forgive the
anachronism)." At the time the prayer by R. Schwab was composed, the
present copyright law was not yet in effect. Additionally, I believe it
would be in place to factually assert whether or not this was the case
with the prayer of the Bobover Rebbe. It would seem to me that he was
asked by Artscroll concerning the English translation.
SBA wrote : "Naively, I thought that Yael's aim for all this was to have
a specific prayer to G-d to help release those poor chained women. And,
if one believes that newly invented prayers have some power in Shomayim,
wouldn't one (especially a woman and even more so a feminist) feel it is
more important for as many people as possible to say this prayer - in
either ande any language and in even in an imperfect translation, rather
than nitpick over ownership rights?" This is indeed the goal. But this
has been affected and harmed by one woman who breached the law, who
continues to defend herself. It is not "an imperfect translation" but
rather an incorrect one, one which is in the category of a "mitzvah
ha-ba'a ba-aveira". So there would be negative value in reciting or
relating to such a translation. How could such a prayer help?
Yael
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From: Yael Levine <ylevine@...>
Date: Wed, 21 Mar 2007 12:20:58 +0200
Subject: Mi she-Berakh for Agunot
This is in response to Avi's post in MJ Vol. 54 #40 Digest.
Avi wrote a few posts ago: "...so it is difficult to gauge whether the
correct translation with substantially change the meaning of the overall
sentence." To which I responded: "It is not at all difficult for people
who know Hebrew fluently to discern the incorrect meanings which stemmed
from this mistranslation." Avi then wrote: "I would just note that as
you appear to be concerned about how you are being treated by others on
this list, I find the above statement quite insulting."
I obviously did not at all regard or mean this to be insulting, and will
not refrain from apologizing if it appeared to be so. Nevertheless, the
essence of the idea, which according to Avi should have perhaps been
articulated in a different manner, is correct.
Lisa wrote: "The implication is made that all of these women can be
freed to marry, if only the rabbis were smart enough or brave enough to
find a way to make it happen." I wrote in response: "This is a total
misunderstanding of the prayer, in its Hebrew original, and is not at
all implicit in it. In the Hebrew version, a wish and hope are expressed
that after these women are freed they will merit to remarry. This
appears in a totally different paragraph". Avi then wrote: "I think the
implication Lisa sees in the text is very clear to me as well...God who
releases prisoners [], give in the hearts of the judges of Israel a
spirit of wisdom and understanding, a spirit of good advice and courage,
a spirit of knowledge and fear of God, that they may release all chained
women and those who have been refused a writ of divorce from their
bonds." As I wrote, there is no mention here of the prayer that these
women should merit to remarry. It appears in the next paragraph in a
different context, and again is of a general nature.
Avi wrote: "The statement I see being made is that if the judges of
Israel where to have the proper spirit of knowledge and fear of God,
then they would be able to release all chained women. To my
understanding, I view this as a slander on many well meaning Rabbanim
who are full of fear of God, but are not able to 'release all chained
women'." I see no slander here. It is a general hope voiced that all
agunot will be able to be released. Avi wrote: "From a halachic
perspective, the almost complete focus of this prayer is on those who
have been refused a writ of divorce, as opposed to an Aguna." The cases
of agunot are minimal today. Avi wrote: "I question whether phrases used
in reference to classic Agunot can be used for the current situation of
those who have been refused a writ of divorce." If you check
contemporary "piskei din", you will see that the same termonology is
used.
Yael
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End of Volume 54 Issue 43