Volume 54 Number 39
                    Produced: Wed Mar 21  5:03:10 EDT 2007

Subjects Discussed In This Issue: 

Fair Use and the Mi she-Berak for Agunot (2)
         [R E Sternglantz, Abbi Adest]
Mi she-Berakh for Agunot (2)
         [Lisa Liel, Yael Levine]
Sexism and copyright infringement - real, imagined or fair use?
         [Eitan Fiorino]
"Why Copyright a Prayer?"


From: R E Sternglantz <resternglantz@...>
Date: Tue, 20 Mar 2007 21:54:10 -0400
Subject: Fair Use and the Mi she-Berak for Agunot

I've been following this discussion with some interest and have a few
comments and 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.

If Yael had written a poem or an essay and published it to the list and
given us the license to read it in public, I think we would all
implicitly understand that she still held copyright on the poem or essay
and that her permission was required to use it by any means other than
the licensed one.  Speaking only for myself, it's a new thought process
to conceive of the text of a prayer being an individual's creative
output, even though I know that prayers have been composed through the
ages (although obviously this is my deficiency).

Whether or not a court of law would find the translation posted on this
list to be infringement or within the fair use defense (and it's by no
means clear cut to me - and I am a lawyer), I do think it's fair to say
that the appropriation was unintentional and done to facilitate list
dialogue on the subject of the prayer. It's very disappointing to me
that while there are many, many meaningful and interesting substantive
directions this conversation might have taken, including the composition
of prayer!, instead it's focused (bilaterally, I might add) on whether
Yael may assert her rights.

Ruth Sternglantz

From: Abbi Adest <abbi.adest@...>
Date: Tue, 20 Mar 2007 14:17:15 +0200
Subject: Re: Fair Use and the Mi she-Berak for Agunot


I'm going to leap to some conclusions here that I sincerely hope aren't

I'm assuming when you wrote your agunot prayer, you want to:

1) To impress upon fellow Jews the urgency of the agunot problem.
2) To place this problem in a specifically public religious context by
creating a prayer that would be recited in shul every shabbat, the one
day of the week when the most Jewish communities gather most of their
members in one place.

If these weren't your exact goals, please feel free to correct or emend
what I've written.

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.


I agree with Avi. It's really a leap to assume that people disagree with
Yael's copyright enforcement because she is a woman. As per my response
to Yael, I just think it's a really unproductive discussion to have
while so many women are suffering.

Abbi Adest


From: Lisa Liel <lisa@...>
Date: Tue, 20 Mar 2007 08:44:23 -0500
Subject: Re: Mi she-Berakh for Agunot

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.

Any written work (not to exclude other types of work) is owned by the
author barring agreements to the contrary.  This includes e-mails as
well.  When you reply to an e-mail and include what you are replying to
without permission of the person who wrote it, that too can be seen as a
violation of copyright.  But no court would ever support such a claim,
because it's clearly fair use.

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.

On the WTN list, in reply to members who asked her to post a
translation, Yael replied that it wasn't possible to prepare a
translation in such a short time.  So I posted one, noting as a caveat
that it was a rough translation.  I even followed the translation with
the following:

        "It's rough, and I'm sure Yael will want something a lot more
polished for release."

I'm not sure I could have been more clear than that about it not being
an official translation, and there being no claim whatsoever that it was
a translation in line with what Yael would want.


From: Yael Levine <ylevine@...>
Date: Wed, 21 Mar 2007 10:31:11 +0200
Subject: Mi she-Berakh for Agunot

Ken wrote: 

> I work with open source software enough to know that 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.

 I would like to thank Ken for his useful insights, which are in line
with my thinking. The distribution of the prayer is new, and my general
policy is, as I've stated many times already, to allow free recitation,
to favorably consider requests for printing the prayer in written
sources, but not to allow any translation or distribution on the net of
the Hebrew or of any translation.

I''ll address now Freda's comments. If a rabbi or other person would
want to give over a short[!] synopsis of the general content, I would
see no problem. By contrast, distributing a translation even in a
non-printed source would be problematic, even in "a Xeroxed copy passed
around in a private gathering."

As I wrote, an authorized translation is forthcoming in some time in a
prestigious journal, B"H before the next International Day of the

I would also like to take this opportunity to thank Freda for her
endorsement of the Hebrew prayer, as she wrote: "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."

I was also pleased to learn that Joseph Kaplan, a lawyer, acknowledges
the right of an author to hold the translation rights, and likewise
agrees that translating the entire work is beyond "fair use" . He
pondered, given that many American Jews are not familiar with the
allusions, whether 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". As I wrote, I
don't see a problem with a rabbi passing over a general synopsis of the
content. This differs entirely from what Lisa did.

Sammy Groner's opinion that "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... 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." I do think that Joseph Kaplan's legal opinion
is the correct one, and I reserve the right to continue abiding by such
an opinion which is in agreement with that of my own.



From: Eitan Fiorino <AFiorino@...>
Date: Tue, 20 Mar 2007 12:25:46 -0400
Subject: Sexism and copyright infringement - real, imagined or fair use?

>From Leah Gordon:

> 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.  :)

Actually, one doesn't HAVE to ask a question simply because one senses
the shadow of a hint of sexism.  There are higher level analytics that
can be applied to the situation.  In this case, is there any evidence
whatsoever that any of those questioning Yael's desire to exert her
legal rights with respect to her composition would not ask the same
question to a male author?  Having read the exchanges on this issue it
seems to me there is nothing suggesting the questions directed at Yael
were gender-driven.  In such a case, the question is frankly not worth
asking, because "the feminist who cries sexism" is like "the Jew who
cries anti-Semitism" is like "the boy who cries wolf" - people stop
listening when the critic appears to have lost the ability to
distinguish between real (if subtle) instances of the
sexism/racism/anti-Semitism/etc. and normal discourse.

Avi replied to Leah wondering if any other tefilot, written by men or
women, has had an author exert his/her rights under copyright law:

> 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. . . . 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.

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).
Clearly, there is an essential tension between putting something into
the public domain and trying to make it distributed as widely as
possible on the one hand, and still retaining one's creative ownership
and control over the work on the other.



From: SBA <sba@...>
Date: Wed, 21 Mar 2007 14:56:44 +1100
Subject: "Why Copyright a Prayer?"

From: Leah S. Gordon <>

> 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.  ..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?  At any rate, since Yael wants her prayer
> disseminated freely for use, she should be given credit for authorship
> and for sharing it.

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?

Afater all, if we can have dozens of nuscha'os for nearly every one of
our holy tefilos, which were composed by the Anshei Knesses Hagedolah
(not by simply one of 'us'), should there really be such a big deal made
when someone - bemezid or beshogeg - makes a few changes to the piece.

Creating a hullaballoo over the copyright, IMHO, demeans the entire



End of Volume 54 Issue 39