Volume 54 Number 41
                    Produced: Thu Mar 22  5:39:36 EDT 2007

Subjects Discussed In This Issue: 

Prayer, discussion and rights (2)
         [Eitan Fiorino, Shoshana L. Boublil]


From: Eitan Fiorino <AFiorino@...>
Date: Wed, 21 Mar 2007 12:42:36 -0400
Subject: Prayer, discussion and rights


Let me preface my comments by saying I have no axe to grind here.  I
hope you can accept some mild rebuke with dignity and not resort to
allegations of issurim you think I have violated in providing this

You are upset that you feel you have been "put on the defensive
concerning a basic right."  As I noted in a previous posting, there is a
contradiction between wanting a prayer to be widely distributed and to
be recited by many, and wanting to retain exclusive control over the
interpretation of that prayer (and translation is among other things, a
form of interpretation).  If this tefilah is recited in synagogues, even
the particular rhythm and tone of the reader will influence how it is
heard and understood, and each person who hears it and reads it will
have their own interpretation and for many non-native Hebrew speakers,
their own internal translation.  These are not things that a copyright
allows you to control - legally, halachically, or ethically.  It is the
nature of art that it will be subject to intepretation.  If you don't
want it interpreted, don't put it in the public domain.

I think for myself and for many on mail-jewish, the translation and
commentary that was put forth was just simply part of that process.  You
brought this tefilah to the attention of a discussion list, a list that
you well know is capable of discussing the most minute of details until
all participants are exhausted from the conversation.  The reason you
feel "put on the defensive" is because you dangled something in front of
the list as a topic of discussion and then acted in a way that seemed
designed to do nothing but squelch the discussion.  I also think the
fact that the commentary on your prayer was critical is viewed having
been a factor in your decision to claim the posting violated copyright
law.  Had the translation been posted with a glowing review and
commentary rather than a critical one, it is hard for me to believe your
response to it would have been as aggressive and sharp.  So rather than
acting defensively, you would be better served to try to understand how
your actions might appear to the members of this group.  If you were
able to see from where thse reactions were coming, you would gain some
perspective and might not feel so attacked.

If you feel so strongly that only you may provide authoritative
translation and exposition of your prayer, then perhaps you acted
prematurely by putting it into the public (into an English-language
discussion forum no less!) before having your translation ready.
Frankly, the message I have taken from your postings in aggregate is
that you are not really interested at all in there being any critical
discussion of your prayer; you simply want it recited (which of course
begs the question as to why you would even post an announcement about it
to a mailing list devoted to discussion).  I would advise you to step
back and ask yourself if the goal you wish to accomplish is being
furthered by aggressively asserting your rights under copyright law.
Would it perhaps have better served the cause of agunot had you simply
replied to the translation with a reply that corrected what you
perceived as errors and enlightened us on some of the allusions
contained in the tefilah?  I would have been positively inclined towards
your goal had I seen this kind of response.  But now, after witnessing
the animosity contained in this discussion, I cannot count myself as a
supporter of your mishaberach.  You may not give a crap about my support
or lack thereof, but I would venture to guess that many on this list
have been put off by your approach.  Certainly overstating your case
does nothing to generate support for your position. For example, you
asked "would anyone come forth and translate a best-selling novel on the
NY Times list. There is no difference whatsoever."  I'm sorry, this is
just simply wrong.  There are 2 huge differences between a NY Times
bestseller and your prayer:

1. A NY Times bestseller is a commercial enterprise that has already
generated economic returns for the copyright owner; your prayer is not a
commercial enterprise, is not being offered for sale, and is not
generating economic returns for you. This is crucial because a major
factor in copyright infringement rests on damages to the copyright
holder, and damages are generally economic - someone who translates a NY
Times bestseller into French and begins selling it in France is
depriving the copyright owner of income that is righfully his/hers.
Real and potential economic damages are an important factor in the
analysis of any copyright infringement case.

2. A NY Times bestseller is a long piece of work, and copyright
violation analyses also factor in the length of the copied piece - short
phrases, in fact, are not protected at all under copyright law.  This is
important because citation of an entire work (or translation in this
case) generally favors a finding of copyright violation, unless the
entire work is short.

I also think many on this list have been reponding to fairly absolute
claims that you have made with regard to your rights under US law, your
halachic rights, and the issurim violated by those whose sin merely
seems to be disagreeing with you.  For instance, you wrote:

> 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". 

There are a series of assumptions and assertions in these paragraphs; I
will address two.  The two paragraphs above take for granted that there
has in fact been a violation of your rights as the copyright holder on
this tefilah; indeed. I find it baffling that you can be so confident
this is true.  I for one think the translation that was posted here is
very likely protected under the fair use exemption - it was part of a
criticism, there was clearly no commercial intent, and there were no
damages suffered (indeed the ONLY factor supporting infringement is that
the entire text was translated and not excerpts, but the short length of
the piece mitigates this factor).  But more fundamentally, the question
of copyright violation can only be answered definitively by a court, so
claiming that there actually has been a violation of copyright law here
is not only technically untrue, but could conceivably be viewed as
motzei shem ra with regard to the translator.

But what is most disturbing is your final comment - I have to cite it
again because it is truly astonishing: "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.'"

You really believe that the mere fact that we are DISCUSSING issues of
copyright law calls into question our kiyum mitzvot??!!  So it is not
enough to state that the translator herself has violated the law and
halacha without the benefit of a court decision or psak or beit din
ruling.  Now, every person on this list who has merely discussed your
assertion that the law was broken (an assertion, again, that I think is
not particularly well supported) is a bad Jew!!  You didn't expect
anyone to challenge your right to enforce your copyright?  Well aside
from the fact that your claim of copyright infringement may be very weak
indeed, I think the readers of this list did not expect a participant to
attempt to shut down a discussion that was started by that very same
participant, and to do so by claiming that aspects of the discussion
were illegal!!!  I think the rest of us are very much more surprised
than you at the turn this discussion has taken.

The bottom line is this - you wrote a prayer in Hebrew about a
controversial topic that has potentially controversial elements.  You
brought your prayer to the attention of an English-speaking group
devoted to discussing and re-discussing all aspects of Jewish life and
practice.  When a translation accompanied by critical comments regarding
the prayer appeared, you claimed the poster had violated the law and
halacha by translating the prayer into the language used by 100% of the
members of the group.  When other members of the group questioned the
nature of the violation and whether indeed any violation truly took
place, you said we are all defective in our kiyum mitzvot.

One might think that this entire copyright issue is a red herring
designed to move the focus of the conversation from discussion and
criticism of the tefilah itself to a pointless back and forth about
copyright law.  While I don't think that is the case, I nevertheless
find myself feeling that the old cliche is most applicable to this
incident - if you can't take the heat, stay out of the kitchen.


From: Shoshana L. Boublil <toramada@...>
Date: Wed, 21 Mar 2007 20:33:29 +0200
Subject: Prayer, discussion and rights

Before getting into a related issue, in depth, I would like to ask
something: If you did something that you are 100% positive was okay to
do, and afterwards you realize that someone was hurt/bothered, and/or
claims that it was problematic (perhaps borderline illegal) -- and they
proved their point -- wouldn't it be a Jewish thing to at least say:
"I'm sorry, I thought what I was doing was right, here are the reasons
for what I did.  I'm sorry you were hurt/insulted..." even if you add to
it -- "I don't agree with your interpretation and in my opinion you
shouldn't have been hurt/insulted...".????


[This was originally posted on the other group where the original
discussion was held]

I think there is another issue here, that has been partially ignored.

When translating from any language to another, the translator needs a
good grasp not only of the language but also of the idiom; folk tales,
slang and many other things that impact on how we express ourselves.

Some years ago, Star Trek (Lehavdil) The New Generation had a chapter
specifically on this issue.  2 nations were trying to talk, but the
language of one was couched in folklore.  They didn't say "I went to
school" they would say something like "Tom Brown" refering to a story of
Tom Brown's School Days and thereby implying that the person was talking
about going to school (this is NOT an example that appeared in the

So, when an outsider tried to understand who Tom Brown was, he was
asking the wrong questions and couldn't reach the true meaning of the
sentence which was - going to school.

While in reality, this is an extreme case, in Hebrew liturgical and
rabbinical texts this kind of issue is extremely common.  Remember that
for many years, Hebrew was not a day-by-day language.  When something
was written, it was written using sentences from the Torah, Nevi'im
Ketuvim and then Mishna and G'mara.

For example Abudarham wrote a commentary on the Siddur which shows the
source for each sentence in Tefilat Shmoneh Esreh.

Now, if we take modern day Hebrew, and we read a liturgical text using
modern day Hebrew alone as our source of meaning for words and ideas
expressed, we can mistakenly mistranslate something, sometimes making
very serious mistakes.

There are times when this can even lead to translating something
completely opposite to the original.

As an experienced translator, I've seen this time and again.  Much of
the discussion here was the result of careless translation of a
liturgical text (without permission of the author) so that instead of
achieving the stated goal of making it understandable for the Hebrew
challenged -- what they got was a misrepresentation of what the prayer
actually said.

I would like to add that some of the question only came to be -- b/c the
translation was faulty.

Thus, while some wondered why they couldn't just have a simple
translation without the furore - I hope they now understand why, and can
understand Dr.  Yael's feelings as she saw the prayer she had written
with specific meanings and sources distorted beyond recognition.

Shoshana L. Boublil


End of Volume 54 Issue 41