Volume 54 Number 37
                    Produced: Tue Mar 20 20:11:00 EDT 2007

Subjects Discussed In This Issue: 

Copyrighting prayers
         [Ken Bloom]
Copyrights and Translations
         [Freda B Birnbaum]
Mi she-Berakh for Agunot (3)
         [Joseph Kaplan, Yael Levine, Samuel Groner]


From: Ken Bloom <kbloom@...>
Date: Tue, 20 Mar 2007 10:12:18 -0500
Subject: Copyrighting prayers

Avi Feldblum wrote:
> 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.
> That having been said, I do not see that Yael has responded to
> Brandon's question. It does not seem to me that he is questioning
> whether you have a legal right to claim copyright over over the
> prayer, but rather he asked:
> > Why would you want to copyright a prayer?

I work with open source software enough to know that copyright isn't
simply a means to prevent copying. Once one has copyright, one can
license the work under a variety of different conditions.

I think that what Yael wants is similar to the Creative Commons
Attribution-NoDerivs license
(http://creativecommons.org/licenses/by-nd/3.0/), an example of how
copyright isn't simply a means to prevent copying. But she should speak
for what her copyright terms are, because lacking any clear
specification of what the terms are, the default is that there is no
permission to distribute the license or do anythign else.

In this context, it certainly does make sense to copyright a prayer, 
even if you do want lots of people to say the prayer.

Ken Bloom. PhD candidate. Linguistic Cognition Laboratory.
Department of Computer Science. Illinois Institute of Technology.


From: Freda B Birnbaum <fbb6@...>
Date: Tue, 20 Mar 2007 10:14:50 -0400 (EDT)
Subject: Copyrights and Translations

Thanks to Avi for his thoughtful take on all of this.

(Disclosure: I help run the other list on which previous discussion took

While I understand Yael's concern to protect the integrity of her work
from non-authorized translation, and agree that this is a reasonable
concern, I would also ask, how far can we take this?  Suppose the prayer
is read in shul, and I ask my seatmate "what did that say?", and she
"gives it over" to me.  Is that unauthorized?  If the thing is out there
in public, people will do that.  Of course printing such a translation
in a published book is beyond the limits.  I'm not sure where a Xeroxed
copy passed around in a private gathering might fall on this spectrum,
especially if it included a disclaimer that this translation was not the

Leah Gordon asks:

>> 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.  :)

As a card-carrying feminist, perhaps not the loudest but close, I have
to say with respect that I don't think that's the issue here.

I think that her misheberach is right up there with the best of them,
and I would be much happier to see it included alongside the
Monday-and-Thursday prayer for "our brethren in captivity", because I
think it fits there, and because it would help to get across the idea
that this is a community problem and not just a "women's thing" to be
trotted out at special events.


> 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.

I heartily second that motion.

Freda Birnbaum, <fbb6@...>
"Call on God, but row away from the rocks"


From: Joseph Kaplan <penkap@...>
Date: Tue, 20 Mar 2007 13:20:18 -0500
Subject: Mi she-Berakh for Agunot

While, as a lawyer, I have found the discussion of copyright interesting
although a bit overtechnical and overheated, I have a different question
that impacts on this issue.  From her post to this list and another
list, I understand that Yael has written this prayer so that it can be
recited in synagogues.  But in many American synagogues, the Hebrew of
many of the congregants is weak, especially with respect to poetry and
allusions to Biblical texts which comprise a large part of Yael's
mishebeyrach.  As a result, in many shuls, before this new prayer would
be recited, it would be appropriate for the rabbi or another individual
to tell the congregation what it means with some specificity.  I wonder
if Yael would object to that, and if not, how different is that really
different from what Lisa did (since to discuss the mishebeyrach one must
know what it means and not everyone on MailJewish is fluent enough in
Hebrew to truly understand it.) And, I would hope that if Lisa decides
to discuss this on any other list, she use English translations of only
those parts she is criticizing which, it seems to me, clearly falls
within the fair use doctrine.

Joseph Kaplan

From: Yael Levine <ylevine@...>
Date: Tue, 20 Mar 2007 12:47:28 +0200
Subject: Mi she-Berakh for Agunot

Concerning the halakhic status of a translation carried out "be-issur",
I wrote that I was not in a position to determine this. I welcome
authoritative halakhic opinions on this matter. Avi wrote: "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." I related to it, Avi, at your request, but now
realize I shouldn't have. I still hold by my claim that the translation
is faulty, despite your differing opinion. I specifically mentioned that
I was not intending to present to this list authorized alternative
articulations. These will appear in the official translation. Avi
further wrote: "...so it is difficult to gauge whether the correct
translation with substantially change the meaning of the overall
sentence." It is not at all difficult for people who know Hebrew
fluently to discern the incorrect meanings which stemmed from this

I'm copying parts of my post in reaction to Lisa of WTN concerning the
contextual issues, with several ammendments:

The term captivity is used here in the metaphorical sense. Beyond that,
the notion of an agunah as being in captivity appears in many teshuvot
dealing with agunot. More extreme articulations may be found. I may
refer you to the work "Sefer ha-Agunot" by Kahana to witness this

> 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.

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.

> And as politically incorrect as it may be to mention, and despite my
> not wanting to make any excuses for the vile types who refuse to give
> a get (I'm on the record as saying that mesuravei get would be better
> off as almanot then gerushot), there are cases where withholding a get
> is the only tool left to men who have had their children taken from
> them unjustly.  A prayer like this one makes no such distinction, and
> is as much a curse on those victims as it is a blessing for others.

The hundreds of teshuvot on agunot that I read do not even mention
children as a determining factor to uphold a woman's right to receive
her get.

> I'd be interested in seeing a source for the freeing of an agunah or
> mesurevet get being the spiritual equivalent of rebuilding the ruins
> of Jerusalem on high.  It's poetic and all, but comparing individual
> tragedies with the national calamities that have informed millenia of
> our history seems a teensy bit lacking in perspective.

The statement "Whoever frees one agunah it is as though he rebuilt one
of the ruins of supernal Jerusalem" appears in many teshuvot. I devoted
an extensive scholarly article to this statement, published in Dinei
Yisrael vol. 23.

Orrin wrote: 

> 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.

That is the law. Carrying out a complete translation for any purpose in an

He further wrote: 
>She's basically trying to dictate what the prayer means.

This is not at all the case, and you are continuing to be
"hoshed bi-kesharim". I reject this totally. As I wrote, among other things
the mistakes as well as the questions posed demonstrate that the translator
was not familiar with all the sources. 

> And if Yael never issues a translation, are you saying that nobody may
> ever translate it?". 

Yes, this would be the case. Several times I have bemoaned the fact that
Orthodox Jews do not see it as a priority to be fluent in Hebrew.

> 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.

Again, I really becry the fact that I have been put on the defensive
concerning a basic right. Would anyone come forth and translate a
best-selling novel on the NY Times list. There is no difference
whatsoever. I am in agreement with Leah "I think this is an unfair
question.  Every author wants (and deserves) credit for writing his/her
texts.".  "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." In due time B"H an English translation will be
published. I have received an offer from an extremely respectable
publication to grant them the initial publication rights in
English. However, owing to what I consider repeated unfounded criticism
on this list toward my basic right to the prayer, I'm not entirely sure
that I will send out a notice upon its publication.

Avi wrote: 

> 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.

As I stated more than once, the prayer may be recited freely, and
requests in writing for reprinting are welcome. But concerning
translations or putting it on the net, I have the basic right to protect
it from misuses. The unfounded criticism on this list, the misuse that
took place a short while after it was distributed, clearly reinforce my
position. Avi mentioned the Tefilah for the Jewish State. However, the
copyright law changed in the 1970s, so therefore this example is not at
all relevant.

The bottom line to my mind is that if someone has a proclivity not to be
law-abiding, then he might breach the right of others, and try to
explain it away. But in any case the copyright law is presently in the
category of "Dina de-Malkhuta Dina". It is particularly out of tune to
give license to a breach of the law in regard to holy matters, such as
tefillot. This would be a "mitzva ha-ba'a ba-aveira".

A bencher does have to obtain copyright permission to include or
translate, and if someone doesn't, again it is a breach of the
law. Again, I believe that this entire discussion on the validity of an
author to retain his copyright, something which seems so basic, and
something that I did not at all expect to be questioned on an Orthodox
list, should call into question our very "kiyyum mitzvot".


From: Samuel Groner <samgroner@...>
Date: Tue, 20 Mar 2007 09:48:54 -0400
Subject: Mi she-Berakh for Agunot

Yael claimed that 

> 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.

Well, no.  On that other list, I posted that 3 of the 4 criteria used to
figure out if something was "fair use" pushed in the direction of
indicating that Lisa's translation was fair use and therefore not a
copyright violation.  I noted that only one of the criteria pushed the
other way -- the fact that the translation was of the entire piece
rather than only parts -- but speculated that that likely wasn't outcome
determinative.  Yael stated that her opinion was that a complete
translation necessarily was not fair use, and I did not respond, because
it seemed useless to me to argue with someone who acted like she was
100% sure she was right and not open to hearing opinions different from
her own.  So I let it go.

By the way, I did some more research, and I'll let the case I found
speak for itself.  From a 1998 Fourth Circuit opinion:

"Copying an entire work weighs against finding a fair use, however, it
does not preclude a finding of fair use." (citation omitted).  Sundeman
v. Seajay Society, Inc., 142 F.3d 194, 205 (4th Cir. 1998).

Sammy Groner


End of Volume 54 Issue 37