Volume 54 Number 44
                    Produced: Fri Mar 23  4:41:28 EDT 2007

Subjects Discussed In This Issue: 

Administrivia - Mi she-Berakh for Agunot
         [Avi Feldblum]
Copyright => Substance
         [Alexander Seinfeld]
Copyright of prayer
         [Michael Broyde]
Mi she-Berakh for Agunot (3)
         [Keith Bierman, Susan D. Kane, Joseph Kaplan]


From: Avi Feldblum <feldblum@...>
Date: Fri, 23 Mar 2007 04:22:28 -0400
Subject: Administrivia - Mi she-Berakh for Agunot

A good erev Shabbat to all (at least those who receive/read before

As I'm sure many of you have seen, this topic has taken up a significant
amount of space on the list. There are those who have written to me to
just totally cut off the discussion. I'm not quite there, but I admit I'm
getting close.

I will try and lay down some guidelines, that will be enforced for
submissions coming in after this goes out. I will also be looking at
postings currently in queue, but will decide how to handle on a case by
case basis.

On the question of whether Yael has a copyright on the prayer, I think
there is agreement on the list that she does, so unless I see any
compelling reason, I will not accept any submissions on the question of
her having a copyright. Along similar lines, I believe that there is
agreement that attribution of the prayer to Yael should be kept, and I
have not seen anyone argueing with that.

On the question of whether Lisa was within the rights of Fair Use or
whether her actions were an infringement of Copyright, there are a
number of postings in queue, from members with legal background that
make it clear that the question is not clearly resolved one way or the
other. The opinions I see lean toward at a minimum that that Lisa was
acting with a reasonable assumption that her actions were likely within
Fair Use. If there are any experts on the list in the area of
Intellectual Property Rights and how they would be viewed in this case
who would like to post their opinions, I would be happy to post. For the
rest of us, I think that with the postings of several items in queue, I
do not see any value in further discussion.

Yael has made clear her opinion that Lisa was in violation of both
copyright infringement and thereby has violated Halacha, and that this
entire discussion is in her terms is based on Aveira. Please see R'
Broyde's submission in this issue which as I read it strongly questions
whether any violation of Halacha has occurred. While there may be
different opinions, and I am open to other postings on the halachic
status of non-commercial copyright, given R' Broyde's opinion, I will
not accept any postings that attack Lisa's action as being an Aveira /
in violation of Halacha. Yael has also made the assertion that we all
need to engage in Cheshbon Hanefesh for our responses on the list and
questions the values of the people engaging in the discussion. This is
clearly in violation of one of the fundamental rules of the list, where
the focus must be on the issue being discussed and not on the person
doing the discussion. I will not allow any more of those comments to go
to the list. There are number of posts where I see this as a possible
issue already in queue, and will reply off-list to those before allowing
a re-written or edited version to go to the list.

Discussion of the content of the prayer and the appropriateness of
introducing new prayers into the tefillah services will continue to be
accepted. There has also been a discussion on the appropriateness of
what I will call enforcing copyright rights in the area of public
tefillah.  I'm not sure I want to publish a list of "I think it is"
vs. "I think it is not". I am open to any discussion that brings sources
that are of interest in understanding the question, existing opinions

As I continue to review postings on this topic, I will return to you via
an Administrivia note if there are more comments from me in my role as
list moderator. I try and keep that role separate from my individual
discussions as a list member.



From: Alexander Seinfeld <info@...>
Date: Wed, 21 Mar 2007 11:47:38 -0400
Subject: Re: Copyright => Substance

This list is done in the spirit of free conversation and my impression
is that Lisa's translation was just that. In fact, she was replying to
Yael's posting of the nusach. She wanted to challenge some elements of
the prayer and felt she had to quote it (in English) in order to do
so. Did she need to translate the entire thing? Arguably no, but
arguably yes: I personally felt it was helpful to contextualize her

If I write a message to the list with some Hebrew phrase that I invented
and someone else translates it for the list, I could complain about
copyright violation but... Not only does it seem harsh, even if Yael is
right and Lisa's translation is not "fair use", maybe she should have
put the prayer on a website with a copyright notice and not sent the
entire text to this list - doing so, it seems to me she opened the door
to critical discussion.  I say this respectfully as a fellow author.

But more to the point: there is another issue here to which I for one am
eagerly awaiting Yael's response. Right or wrong, Lisa translated your
prayer. How can we clear the air so that we can hear Yael's spirited
defense of the prayer itself?

Alexander Seinfeld


From: Michael Broyde <mbroyde@...>
Date: Thu, 22 Mar 2007 10:19:40 -0400 (EDT)
Subject: Copyright of prayer

Although I do not generally post on Mail.Jewish anymore, as I just have
too much to do, someone showed me the postings on copyrighting prayers
and asked me what I thought.  My thoughts run on three distinctly
different levels, the first being secular law, the second being native
halacha, and the third being the overlap of the two.

As a matter of secular law, it seems clear to me that prayer can be
copyrighted, as is explicitly noted by the Second Circuit in MERKOS
INC 312 F.3d 94 (2004).  That case makes clear that even translations
may be copyrighted, also.  However, even a casual read of that case
shows that the economic use of a copyright is a central component of
that claim.  Let me put it in a different way.  When I write a prayer
and copyright it, I can not use my copyright to prevent you from
reciting my prayer even as that looks like an infringement, as fair use
clearly permits this, nor can I prevent you from commenting on my
prayer, although I may prevent you from printing my prayer and selling
it.  This is even more so true given the rise of what is called the
merger doctrine, which notes that there are some instances when only a
few ways are available to adequately express an idea and, in these
instances, none of the expressions should be copyrightable.  The basic
rationale behind this doctrine is that the alternative "would be to
allow the copyright holder a potential effective monopoly on the
underlying idea, because no one else could develop an independent
expression of the idea that would differ sufficiently from the
copyrighted expression[s]." (see 12 J. Intell. Prop. L. 513, 2005, .THE
the merger claim is, the more obvious it is that the copyright on a
prayer is inherently suspect.  A unique prayer can not be copyrighted,
although if others use it for economic gain; an action for damages might

It would seem to me that between these two doctrines that when one
writes a particularly good prayer that uniquely expresses a religious
concept, certainly others may use and recite the prayer independent of
copyright concerns, at least as a matter of American law.  This is even
more so true when a person encounters a prayer and wants to change it or
change the translation to reflect their own theological concerns or
religious reasons.  In such a case, that is certainly fair use and might
even have a religious freedom claim.  Indeed, numerous bibles have done
just that without copyright concerns at all.  Each and every one of us
can take our copy of the Chazon Ish on eruvin and write extensive notes
on what we think are his errors, and publish our comments on the chazon
ish in eruvin, even if we publish vast section of his work to explain
our view.  If we wrote a line by line commentary on the chazon ish on
eruvin (I have not, but wish I did), one could publish his whole work
with your notes without a copyright problem, I suspect.


As a matter of native halacha, it would seem to me to be obvious that
there is no copyright on tefilla and a person has not right as a matter
of Jewish law to claim economic reward from others using, reciting, or
discussing a prayer. That is even more so true if one is changing a
prayer. Thus, absent some secular law, there is almost no claim of
native halacha here.  If I could go further, I would say as follows:
there is quite a bit of literature in halacha which suggests that there
is no foundation within halacha to control the exact formulation of an
idea, so long as one does not deny the intellectual history of the idea
and deprive the author of his claim of ownership.  Copyright to the
extent it is a halachic concern can never be used to suppress
discussions or restrict access but can only be used to insure that a
person receives fair economic reward for their work.  Once a person is
not seeking economic reward, but textual control, they have almost no
rights as a matter of halacha.  That can be shown from many sources.

The issue of Jewish law and secular law overlap is most fascinating.
May one even press a claim in secular law against a Jew who would go to
bet din if you know for certain would be rejected in bet din, if you
pressed it, would seem to be one question? I think the consensus answer
to that is .no. and for more on that question see my book .The Pursuit
of Justice and Jewish Law. which just came out in a new edition by
Yashar press.  On the other hand, another question might be whether
halacha would feel even bound by secular law when it uses copyright to
restrict access to prayer.  As is well known, this matter was widely
discussed in the context of an attempt to reissue the Tehillat Hashem
siddur with Rabbi Nissen Mangel's excellent translation into English.
There certainly were batai din who thought that the holder of the
copyright had a duty to continuously have the siddur in the market at a
fair price, and absent such, lost their claim to copyright.  Others
disagreed and thought that secular law applied fully.  This is a
question that is complex and uncertain.

On the whole, I do not think that distribution of short tefillot to the
public with no economic benefit to the one who distributes it,
constitutes a violation of either American law or Jewish law.

Michael J. Broyde
Professor of Law
Emory University School of Law
Email: <mbroyde@...>


From: Keith Bierman <khbkhb@...>
Date: Wed, 21 Mar 2007 09:24:12 -0600
Subject: Re: Mi she-Berakh for Agunot

> From: Orrin Tilevitz <tilevitzo@...>
> .....  People don't normally copyright prayers.

I wasn't going to jump into this, and I'm not a lawyer. While I agree
with the thrust of the commentators that digressing into copyright law
is probably pointless, "dinah de melchutah dina" (the law of the land is
the law, where applicable ;>)...

Thanks to the Berne Convention of several years back, copyright is now
inherent. It does not require claim or special process (enforcement
practicalities in the US notwithstanding). As of it's adoption *all*
prayers are copyright by the author ... at least all prayers composed
after the Convention's adoption in the relevant country.

Can we *please* stop discussing copyright minutiae?

Aren't there enough halachaic and jewish philosophical topics to delve

Keith Bierman  | <khbkhb@...> | khbkhb1@fastmail.fm
AIM kbiermank |  skype khbkhb | gizmo: keithbierman 1-747-641-9858

From: Susan D. Kane <suekane@...>
Date: Wed, 21 Mar 2007 16:35:38 -0400 (EDT)
Subject: Mi she-Berakh for Agunot

One of the true difficulties of fair use in a US context is that it not
clearly defined.

Fair use is not a right, it is a limitation on copyright or a legal
defense against the charge of infringement.  Fair use says "Yes, I did
it, I violated copyrght, but ... <there was a good reason>".

Because copyright law is very broad in what it protects and fair use is
very vague and very specific to individual legal cases -- it is simply
not possible to say that a listserv posting "definitely is" or
"definitely is not" either a copyright violation or fair use.

The only way to really know would be for Yael to sue Lisa for copyright
infringement and for Lisa to bring her arguments about her intentions
before a court.  The court would then decide, based on the evidence and
legal precedent, what had happened.

In the meantime, both parties would lose a lot of money in legal fees,
unlikely to be regained, given that the commercial market for a possibly
flawed English translation of a mishebeyrach for agunot is ... small.

This is, of course, no reflection on the work itself.  The commercial
market for my poetry is even smaller.

I don't think a lawsuit would be a good outcome to this discussion.

I hope we can all agree that the creator (Yael) has made her desire
about this work and any future translation clear and that the potential
infringer (Lisa) acted in order to promote discussion rather than to
create harm.

Yael, if you are serious about controlling any future translation or
dissemination of the prayer, I encourage you to register your copyright,
which is easy to do and not expensive.

Copyright FAQ

(I recommend "How do I protect my sighting of Elvis?" for those who
worry that government employees may miss the inherent comedy in their

kol tuv,
Susan Kane
Boston, MA

From: Joseph Kaplan <penkap@...>
Date: Wed, 21 Mar 2007 14:15:17 -0500
Subject: Mi she-Berakh for Agunot

I reread my post a few times to see where I "agree[d] that translating
the entire work is beyond 'fair use,'" since I did not mean to do so.
What I did say was that "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."  This is does not mean that my legal opinion is that a
complete translation is not fair use; not being an intellectual property
lawyer, I really don't know the answer to that question.  Rather, the
point I tried to make (clearly not clearly enough) was since a partial
translation in this context seems clearly to be fair use, if Lisa
followed that approach, the discussion could be directed to the
important issue of the prayer itself rather than to arcane issues of
copyright law.

Joseph Kaplan


End of Volume 54 Issue 44