Volume 54 Number 49
                    Produced: Mon Mar 26  5:24:08 EDT 2007

Subjects Discussed In This Issue: 

Copyright of prayer
         [Lipman Phillip Minden]
Gezel Zman
         [Shimon Lebowitz]
Mi she-Berakh for Agunot (5)
         [Frank Silbermann, R E Sternglantz, Yael Levine, Orrin
Tilevitz, David Greenberg]
Mi she-Berakh for Agunot - on Mondays and Thursdays:  OOOOPS!
         [Freda B Birnbaum]


From: Lipman Phillip Minden <phminden@...>
Date: Fri, 23 Mar 2007 11:12:35 +0100
Subject: Re: Copyright of prayer

I wonder (and asked the question here and there without getting an
answer) about an extreme case, namely if you can have a copyright on the
Toure.  Assume I decide to edit a chummesh both to spread toure and to
make money.  Can I use the exact text of R' Breuer's zetza"l edition?

On the one hand, he worked on it for quite some time, and the publishing
house might have paid him for his labour. Even if not, there's effort
and secondary costs involved.

On the other hand, how can one publish a text of the Toure unless I'm
convinced every dot is correct in the best possible way?! I at least

The question is not about being nice and honouring the efforts, but
about the din. Also, other scenarios open up. Say, a Reform publisher
wants to publish the text and put a Reform commentary next to it,
something R' Breuer and the publishing house hardly would approve of.

And, as Dayyan M. Broyde correctly remarked, one should mention the
originator of an idea. But American law might see it in an opposite way,
i. e. as not only plagiarising the text without permit, but even
advertising with the original author's name!

So, does that mean nobody can ever publish a chummesh again, in case R'
Breuer's publisher doesn't voluntarily give up his copyright?

Lipman Phillip Minden


From: Shimon Lebowitz <shimonl@...>
Date: Thu, 22 Mar 2007 19:29:24 +0200
Subject: Gezel Zman

>  you sent an extremely harsh email to this list; this infringement has
> resulted in "gezel zman", of myself and of others. I find it difficult
> to be "mochel" to all this.

I am NOT relating to the issues of the prayer under discussion or the
copyright issues.

I just want to say that I think that anyone who finds their time taken
up unjustifiably by an email list can only blame themselves for any
possible gezel zman.

The solution is the key labelled "DEL". (It is a cousin of that switch
on TVs labelled "OFF").  (Note: Replace "DEL" with other functions as
appropriate for your own email program).

Pesach kasher vesameach to all!


From: Frank Silbermann <fs@...>
Date: Thu, 22 Mar 2007 10:12:12 -0600 (CST)
Subject: Mi she-Berakh for Agunot

Yael Levine <ylevine@...> V54 N43
>(Lisa's) claim concerning "fair use" was totally rejected by several

For what that's worth (given that some have opined otherwise, and no
court ruling has yet been issued on this particular case).


>>"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."

Yael Levine <ylevine@...> V54 N43
>You are attempting to excuse your breach of the law.

Since the legal question is still under debate, that's begging the
question.  In any case, why shouldn't Lisa attempt to justify her
behavior?  If Yael is not willing to hear the defense, she shouldn't
make the accusation.

If Lisa's defense is valid -- if the placement of the prayer into these
forums could reasonably be interpreted by members as a permission from
the author to translate the prayer for the purposes of discussion (even
if that was not the author's actual intent), then let's move on.

Either way, I don't seen any point to further discussion of the prayer
on this list until an approved translation is available.

Frank Silbermann	Memphis, Tennessee	<fs@...>

From: R E Sternglantz <resternglantz@...>
Date: Thu, 22 Mar 2007 20:38:56 -0400
Subject: Re: Mi she-Berakh for Agunot

My post has been selectively quoted to stand for something different
than what I, in fact, said.

While I do think that Yael holds copyright in the prayer she posted to
the list, I venture no opinion whatsoever as to whether or not Lisa's
translation constituted infringement.  As I said quite plainly in my
original post, fair use is an unpredictable defense.  This
unpredictability cuts both ways, and debating this legal issue is not
going to bring us any closer to a resolution.

From: Yael Levine <ylevine@...>
Date: Fri, 23 Mar 2007 15:23:33 +0200
Subject: Mi she-Berakh for Agunot

This is in response to MJ VOl. 54 #44

Avi wrote: "On the question of whether Lisa was within the rights of Fair
Use or whether her actions were an infringement of Copyright...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." 

My own lawyer, a top intellectual property lawyer in Israel, Gilad
Corinaldi, has reinterated to me, among other things, that an author
holds the copyright to his works, and the translation rights to his
works in all cases. Furthermore, he has moral rights to his intellectual
property, among them that his work not be distorted, changed etc. This
opinion is totally binding to me. The prayer is copyright under Israeli
law, and this is binding.

I appreciate Rabbi Broyde's opinion, but clearly that's not the only
one.  There is an entire work by N. Rakover on Copyright, as well as
articles in the journal Tehumin. So it's not totally clear why in this
realm one opinion is accepted, and not diverse ones, whereas in the
legal matter of fair use, Avi is open to other opinions. This seems like
a contradiction in terms. Clearly, R. Broyde's discussion of some of the
sources is debatable. His exposition of the halakhic sources concerning
changing a prayer stand in contrast to the Israeli law. One of the
things he wrote was "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."

I wonder what his opinion would be if some atheist would come and chas
ve-shalom want to omit the name of Hashem. Would he sanction that type
of change which negates the tenets of faith of the author?

Avi also wrote: "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 was not aware of this rule. At the same time, attacks
towards me were put through.


From: Orrin Tilevitz <tilevitzo@...>
Date: Thu, 22 Mar 2007 09:59:11 -0700 (PDT)
Subject: Mi she-Berakh for Agunot

I have little to add to Eitan Fiorino's excellent post, so I shall be as
brief as I can:

>From Yael Levine:

> Orrin Tilevitz is in general agreement that "copyright rights extend to
> the creation of derivative works, including translations", but seeks to
> find ways in which to limit this clause and even reverse it, inter alia
> by bringing a specific case in which it was determined "that there would
> be no infringement even though an entire work was copied."

I stated, and you admitted, that your sole defense to Lisa's fair use
claim was that this doctrine NEVER applied when the entire work was
"copied".  I cited you a Supreme Court case stating this was not true,
and in fact holding that a particular use was a "fair use" even though
the entire work was copied.  It follows that your defense to "fair use"
falls, Lisa's claim to fair use stands, and you have no claim for
copyright infringement.  You may deny this, but you cannot refute it.

> Your opinion has been rejected by others

Come; you insult my intelligence: I cite you a statute and Supreme Court
case directly on point--meaning that the answer is now clear: an
unauthorized use of an entire work may be a fair use, and in this case
almost certainly is--and you cite what?  Opinions, not based on
anything, by parties unknown, and a legal opinion that only you have
seen?  I would be quite willing to forgive the insult, but my
intelligence is not.

> including by the legal understanding advanced by Joseph Kaplan, a
> lawyer.

[Orrin's response removed, as Joseph has already clarified that Yael did
not correctly quote him and that he does not make the legal statement
attributed to him. Mod.]

> As it has been mentioned, people today don't copyright prayers, since
> the copyright is automatically granted to an author by law.

  But, unlike you, they don't normally assert their rights to those
prayers by stopping "unauthorized" recitations.  BTW, have you ever
heard a baal tefilah use a Carlebach tune in davening?  Normally, he
uses the whole tune.  Many were composed after 1975, when the new
copyright law came into effect.  These tunes are presumably subject to
copyright protection (unless they are now in the public domain, which is
really mushy.)  On what basis, other than the fair use doctrine, do you
think the baal tefilah does so?  And you think Reb Shelomo ever, ever
objected to such a use of his copyrighted tunes, which I believe he
regarded as, themselves, prayers?

> You went extremely far in writing that "And if halacha does not give you
> such a right, then your assertion of the right under secular law would
> itself be a violation of halacha." This is very extreme, again something
> I consider to be a totally unfounded serious accusation, and already
> abusive.

You offer no argument why I am not correct.  In fact -- since you are
essentially accusing Lisa of theft -- the aveira of asserting rights you
do not have is extortion, akin to demanding ten dollars from a stranger
on the street.  Unless and until you successfully refute my assertion, it
is neither unfounded nor abusive.

From: David Greenberg <dsg1716@...>
Date: Fri, 23 Mar 2007 11:18:18 -0700 (PDT)
Subject: Mi she-Berakh for Agunot

I don't claim to be an expert on anything in life. I am, however, an
attorney, and my practice frequently involves copyright litigation, so I
do have some relevant experience.

Mr. Tilevitz and Prof. Broyde have both already expressed most of the
thoughts I have had while reading through this thread.  I would like to
add one point, which I think underlies much of what they said, but which
I don't think has been explicitly stated.

I think it's pretty clear that Dr. Levine has a copyright in the
MiSheberakh (although I think Ms. Liel's translation was almost equally
clearly a fair use).  Somewhere as this discussion was ramping up,
however, Dr. Levine defended her position with reference to the author's
right to "control the artistic content / accuracy of a derivative work."
I believe she was actually quoting either Avi Feldblum or a poster to
the other mailing list to which she subscribes.  They way in which this
idea was presented makes me think many people are basing their
approaches on a false premise.

American copyright law protects economic rights, not "moral" ones.  In
fact, the concept of "moral" rights has been explicity rejected by the
courts deciding these cases.  See, e.g., Gilliam v. American
Broadcasting Co., 538 F.2d 14, 24 (2d Cir. 1976); Choe v. Fordham
Univ. Sch. of Law, 920 F. Supp. 44, 49 (S.D.N.Y. 1995).  Thus, to the
extent Dr. Levine bases her position on an author's moral right to
control the integrity of her work once it is complete, she is mistaken.
This concept does exist under some civil law systems like those in place
in many European countries - France being one of the leading examples.
Unsurprisingly, however, in America it all comes down to dollars and
cents: protecting the author's right to make a buck off of her work, and
off of any derivative she might want to create later on.  The fair use
factors reflect these concepts quite clearly, and they also reflect
another core American value: the right to free speech and the desire to
foster creativity and a free-flowing exchange of ideas.

This isn't to say Dr. Levine couldn't enforce her copyright in the
prayer under appropriate circumstances; it only means that an American
judge or jury hearing such a case isn't going to care much about what
violence the alleged infringer did to the original, except to the extent
it harms Dr. Levine's pocketbook.

Oddly enough, it seems that the halacha largely agrees with the American
approach - I won't rehash the several other postings delving into this,
but "he who reports a saying in the name of its originator, etc...".

For an interesting article touching on this topic, see Rabbi Isaac
Schnieder's "Jewish Law and Copyright," available at

Legalities aside, from a practical standpoint, I think it would have
been sufficent for Dr. Levine to simply state to this list that she
disagreed with the translation, did not endorse it, and that it did not
reflect her intent in creating the prayer.  I thought the other
statements and accusations, including the latent suggestion (noted by
Avi) that we should all now be engaging in a Chesbon HaNefesh (critical
self-examination) for daring to even discuss this matter, were a bit


From: Freda B Birnbaum <fbb6@...>
Date: Fri, 23 Mar 2007 09:24:49 -0400 (EDT)
Subject: Mi she-Berakh for Agunot - on Mondays and Thursdays:  OOOOPS!

A friend pointed out to me in private email that, as someone who goes to
a 6:30 am minyan, he believes that should anyone want to add ANY
misheberach on Monday and Thursday for anything other than the
traditional one for the sick, that person would be drummed out of the
minyan immediately.  It's not anti-woman or agunot; it's merely the
necessity to get to work.

I recant!  He is 100% correct.  What was I THINKING?! (MAYBE, in the
first couple of days of a kidnapped Israeli soldier, etc., but the thing
then becomes, once you've started, how can you stop till he's returned?)

I do reserve the right, if there's some women's-davening thing on a
Monday or Thursday, to ask that they put it in at that spot.  It does
seem like the perfect place.  But how could I have missed the
early-morning concern?!

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


End of Volume 54 Issue 49