Volume 54 Number 47
Produced: Mon Mar 26 4:46:05 EDT 2007
Subjects Discussed In This Issue:
Copyright
[Yehudah Prero]
Fair Use
[R E Sternglantz]
Inventing new prayers
[SBA]
Legal rights of an author
[Carl Singer]
Mi she-Berakh for Agunot (3)
[Meir Shinnar, Yael Levine, Orrin Tilevitz]
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From: <dapr@...> (Yehudah Prero)
Date: Thu, 22 Mar 2007 09:52:53 -0400
Subject: Copyright
I read this discussion with fascination, amusement and a sense of
sadness. As an author, rabbi and an attorney (although it has been quite
some time since I dabbled in intellectual property matters), I can
relate to many of the feelings expressed in the discussion.
My writings first appeared on-line 10 years ago. My published book came
out right before Sukkos. If I had a dollar for every time someone
infringed on the copyright of my materials, I'd be a wealthy man. And
this is still true notwithstanding the fact that I give blanket
permission for people to use my material so long as attribution is
mentioned. I actually was accused once by someone who took my writings
and called them his own of stealing his work!
I write in English, and my thoughts are based on many commentaries I
have researched. Yet, although I am an Orthodox Jew and my writings
reflect that, I have been quoted by missionary groups, churches, and all
sorts of others who have used my writings as support for things I
clearly would not endorse and I certainly did not intend. Does that
bother me? It did, at one time.
I put information out into the public domain - even worse - the
Internet. To expect people not to take that information, copyright law
notwithstanding, and use it, in all senses of the word "use," is not
realistic. Yes, "fair use" is a defense, but copyright infringement has
to be affirmatively asserted to be actionable. I have chose, on those
few occasions where I really thought something not correct had occurred,
to deal with the issue quietly. I am happy people use my writings, even
if the meaning may get distorted, even if it means I am unfairly
criticized, as I discovered had happened on a blog or 2 some time ago.
(My e-mail address is on my web pages - the person who had a "beef" with
me chose to try and belittle me instead of going straight to me with a
complaint). Ultimately, the blog episode had a good resolution, as it
fostered dialogue on the issue and the original complaintant had the
troubling issue clarified by me.
I would just hope that in this month of Chairus, we can focus on truly
celebrating with all those in need, instead of accusing others of
debatable Halachik infractions, ill will and unjust intent.
Chag Kasher V'Sameach,
Yehudah Prero
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From: R E Sternglantz <resternglantz@...>
Date: Wed, 21 Mar 2007 19:50:56 -0400
Subject: RE: Fair Use
> > 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.
>
> I am not a lawyer, but my personal experience with copyright law is
> different than what you state. In my book (The Art of Amazement:
> Judaism's Forgotten Spirituality) there are several quotations from
> other sources to help underscore a point. These are set off from the
> main text. I was afraid of copyright infringement so I followed the
> standard procedure to obtain permission to use the quotes (all of them
> 1-2 sentences long). What major publisher's told me - in writing - was
> "you don't need to ask for permission to use this because it falls
> under fair-use." So in practice, it appears to be a standard, however
> mushy in legal theory.
>
> Alexander Seinfeld
I don't disagree with your experience, but it does not conflict with my
explanation.
To expand a bit: there are certain practices (e.g., quoting a very small
portion of prose from a work of non-fiction for use, with attribution,
in a scholarly text, as you did) that are well-settled instances of
fair-use. In other words, the holders of the copyrights know that if
they tried to sue for infringement, they'd lose, because the court would
uphold the fair use defense. That's what the publishers meant when they
told you that you didn't need to formally file a permissions
request. They were basically saying, "Go ahead, reproduce the material
that is protected by copyright, and don't worry, we won't sue you for
infringement because we know we'd lose."
Fair use is an incredibly mushy standard. There are a few well-settled
areas, but mostly not, and once you get beyond those well-settled areas,
you are wading into quicksand if you're relying on your idea of what is
fair use to protect you from an infringement suit. I have friends who
had to remove poetry quotations from their doctoral dissertations before
they could be published, because the estates of the poets would not give
permission for the reproduction and aggressively pursue infringers.
Ruth Sternglantz
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From: SBA <sba@...>
Date: Fri, 23 Mar 2007 01:43:40 +1100
Subject: Inventing new prayers
The incredible series of posts regarding Yael's disapproval of Lisa's
translation and Yael's subsequent catalogue of our collective and
individual transgressions when disputing her, has more than reinforced
my understanding and acceptance of the view held by nearly all Charedi
Rabbonim , that our seder Tefilos should be not be tampered with and no
additions should be made to the words uttered during prayer for the past
centuries by our ancestors.
The original prayers were compiled and ordered by Chazal, Anshei Knesses
Hagedola and also later sages - all who were gaonim and tzadikim, most
(maybe even all) baalei Ruach Hakodesh.
None, amongst the gedolim of today would compare himself (herself) to
these giants, this the thought of inventing additions to our tefilos is
according to them totally out of place.
Of course, I have no problem if someone says there own tefila for
whatever personal need they may have. This is permitted and indeed
recommended in certain sections of our prayers.
Like everyone on this list, I feel with the pain of the many agunos (and
I am proud to say that I had a major part in helping 3 such women
receive their gittin), but guess what? There have sadly always been
cases of agunos, but our rabbis didn't feel up to composing a specific
tefila on their behalf.
Saying Tehillim was always the Jewish way - to beseech Hashem for His
help. And as in the case of the unwell so too with agunos, we could
after saying it, mention their name and mother's name.
This way, we would be using words written by Dovid Hamelech, Moshe
Rabeinu and other holy biblical figures, and not those of a 21st century
author - well-meaning and talented as she may be.
My 2 cents worth.
SBA
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From: Carl Singer <casinger@...>
Date: Wed, 21 Mar 2007 08:47:48 -0400
Subject: Legal rights of an author
I am not a lawyer -- and I do not portray one on television.
It seems to me that there is a more serious issue with a
mis-translation. If, for example, I write an original work that says.
"I owned eight red ponies." And someone then mistranslates it into
another language, and say the output is (translated back into English.)
"I ate a red horse." If the translation is attributed to be an accurate
image of my original work -- then I may have suffered some damages. But
that's not a copyright issue, is it?
Does the translation substantially misrepresent the original or are we
speaking of nuances that might be expected among languages.
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From: Meir Shinnar <chidekel@...>
Date: Thu, 22 Mar 2007 09:20:41 -0400
Subject: Mi she-Berakh for Agunot
I have followed the discussion about the Mi sheberakh for agunot.
Several comments.
1) I am not a lawyer, so can't comment on the specific legal issues, nor
what remedies or compensation Yael Levine would be entitled to.
However, it seems fairly clear that in composing a prayer where the
emphasis is not merely on the content - what is prayed for - but on the
precise formulation, changing that formulation (and the translation
posted did significantly distort the formulation) - does a disservice to
the author, is something that at the least is halachically questionable
- (think of how careful some rabbanim are at allowing publication of
something that doesn't fully reflect their formulation) -and I wonder at
all the hoopla trying to defend what is essentially an indefensible act
- even if one can find technical legal defenses for it - and attacking
the author for defending her rights - one would have assumed that after
the complaint, there would have been an apology - instead of this fairly
long thread of why it was right (or at least not too bad..) to do wrong.
2) There are several reasons for this, because what Yael Levine did, or
at least tried, with her misheberakh is actually quite novel - and that
novelty is either not appreciated or is viewed as problematic.
many of us are used that there will be, in some shuls, many tefillot
said - misheberachs for all types of causes and organizations. In
general, the formulation of that tefilla constitues of codging together
some phrases from known tefillot in some (hopefully) grammatical order
and inserting some words about the cause. As the main issue is the
cause - not the formulation - no one is too bothered by changes in the
text - and no one is overly bothered by nuances in the translation. I
think that this is what prompted the initial (mis)translation - the
issue is the cause and what is prayed for - rather than the formulation
- which is viewed as quite secondary and unimportant.
Yael Levine makes a more audacious claim - that her misheberach was
carefully composed as a tefilla - and therefore deserves the respect and
careful attention to detail we give to tefillot. Her misheberach is
more carefully composed, with attention to linguistic detail. However,
most of us are relatively unused to giving serious weight to new
tefillot - whether on ideological grounds, a la Rav Soloveichik -
opposing our ability to compose a new prayer today - or just general
ritual conservatism - even if we say them we give them less weight.
Even though the tefilla lishlom hamedina was very carefully composed,
and has become part of the standard tefillot of most Religious Zionist
and Modern Orthodox shuls - I suspect most don't give the words the same
attention that is given, say, to av harachamim. Therefore there is a
very high hurdle to pass - both in terms of skill of formulation - but
also in terms of getting acceptance. This, I think, is reflected in
much of the discussion - where people don't think the formulation is
that important - but the author has the right to determine how her work
is presented.
There is another issue, making her hurdle much higher - which is the
content. the issue of the modern style agunot - whose husband won't,
instead of can't, give a get - is a political issue - and viewed
(unfortunately) by many as a feminist or left wing issue - and this was
the thrust of the person who (mis)translated originally - and a subtext
is that a tefilla on a feminist and LW issue doesn't have the right to
be taken as seriously. That in itself validates the LW critique - that
much of the problem is not an intrinsic halachic issue - but the refusal
of the O community and its dayanim to take the problem seriously and do
what can be done - even if we acknowledge that not all agunot can be
freed. Many of the dayanim, unfortunately, and in spite of what avi
feldblum wrote, are not people of integrity - something that the
community recognizes but refuses to deal with - and prefers to criticize
the critics.
Meir Shinnar
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From: Yael Levine <ylevine@...>
Date: Thu, 22 Mar 2007 15:59:07 +0200
Subject: Mi she-Berakh for Agunot
I'm presenting here in extreme brevity some legal advice I have been
receiving. This totally coincides with what I have been claiming all the
while.
I have been consulting with a top intellectual property lawyer in
Israel, and have been told, among other things, that an author holds the
copyright to his works, and the translation rights to his works.
Furthermore, he has moral rights to his intellectual property, among
them that his work not be distorted, changed etc.
Yael
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From: Orrin Tilevitz <tilevitzo@...>
Date: Wed, 21 Mar 2007 09:24:53 -0700 (PDT)
Subject: Mi she-Berakh for Agunot
>From Yael Levine:
> But in any case the copyright law is presently in the category of
> "Dina de-Malkhuta Dina".
Encyclopedia Talmudit, in its long article on Dina de-Malkhuta, which I
did not read completely, cites the Rambam for the proposition that some
say that Dina Demalkhuta applies only to laws relative to the government
(e.g., taxes), not those bein adam lechavero. I don't know if anyone
says differently. Copyright is very clearly in the latter category.
(Even enforcement of the copyright law is solely a private right unless
the criminal provisions of the law apply, which they certainly do not
here.) Therefore, at least according to the Rambam, Yael's statement is
incorrect.
If Dina de-Malkhuta doesn't apply, then copyright infringement is an
aveirah only if it falls with the classification of "hasagat gevul". It
could, but it doesn't necessarily. I believe hasagat gevul requires at
a minimum economic deprivation, of which there was none here - Yael is
no worse off economically from any appropriation. So even if Yael has
some secular claim for infringement, I question whether she would have
any claim before a beit din, and thus whether Lisa has committed any
aveira.
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End of Volume 54 Issue 47