Volume 54 Number 53
                    Produced: Wed Mar 28  6:23:52 EDT 2007

Subjects Discussed In This Issue: 

Copyright Law and Learning
Kalba and Pesach
Kitniyot on Pesach
         [Binyamin Lemkin]
Parallel Courts
         [Jonathan Baker]
         [Janice Gelb]
Talking in Shul
         [Joseph Kaplan]
         [Michael Broyde]
Where the Ben Ish Chai is buried?
Zeycher vs Zecher (2)
         [Mark Polster, Eitan Fiorino]
Zeycher/Zecher and Machlokess
         [Jonathan Baker]


From: Anonymous
Date: Wed, 28 Mar 2007 01:18:13 -0400
Subject: Copyright Law and Learning

Michael Horowitz wrote:
> As we have this discussion I wanted to bring up an issue that's bothered
> me for years.  I often go into shiurim and have the Rabbi pass out
> photocopied copyrighted texts.  Whether it's an Artscroll Gemorrah, a
> regular Gemorrah and class on the laws of shabbos with a photocopy of
> Shemiras Shabbos Chiltacha etc
> I'm sure I'm not the only one to see these phenomena, is there any
> justification for it.  After all the publisher of the sefer clearly has
> an economic interest in my buying the book and not having it photocopied
> in pieces for me for an ongoing class or even a one time one on Shavuos
> evening.

Full disclosure: I am not an attorney, but I have had some training and
involvement with copyright law issues.  In any case, if you want real
legal advice, consult a real lawyer.

The original text of the gemarah, tanakh, and siddur are not
copyrighted.  An obvious exception exists for anything written more
recently -- such as the prayer written by Yael -- but the original texts
of the gemarah and tanakh are thousands of years old, and almost all the
tefilot in the siddur are similarly no longer covered by copyright law.

Translations and commentary (modern commentary, not ancient commentary)
are generally copyrightable.  Diagrams and artwork surrounding the text
may also be covered by copyright law.  (Some translations may be so
simple or mechanical that they may not be eligible for copyright

The question basically comes down to one of fair use.  (Sidenote: any
discussion of fair use applies only to US law.  Some countries make
specific exceptions to copyright for the purpose of "education" which
could possibly include the context you describe above.  In the US,
educational use would be a factor for a fair use analysis, but wouldn't
define the whole analysis.  There are, in fact, some specific exceptions
within US law as well, though I'm not familiar enough with them to know
whether they apply here.)  There are some clear answers in a fair use
analysis, but the analysis can also get very muddy.

Required reading for anybody interested in this topic is the case
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (2d Cir. 1994).
The case involved a for-profit company (Texaco) which had a single
subscription to various expensive journals, and allowed any researcher
to borrow the individual volumes, xerox the articles inside, and store
those copies in their own personal libraries.  Thus, for every volume
the company purchased, it was possible that multiple complete copies of
every article could be found in it's researchers' files.  The court held
that this type of copying failed the fair use test, and Texaco was found
liable for copyright infringement.

The situation of a Rabbi distributing copies of an Artscroll Gemarah is
different from the Texaco case on a number of levels.  (1) Although
xeroxing pages is non-transformative, the purpose of the use is for
education and commentary in a non-profit setting; Texaco involved
commercial research.  (2) As I have stated above, large portions of the
text in seforim are not subject to copyright protection because of their
age.  If the purpose of the shiur is to focus on the Hebrew or Aramaic
text, the fact that a few extraneous lines of copyrightable commentary
at the bottom of the page may have been caught by the xerox machine may
not be so important.  Of course, if the text xeroxed includes
copyrightable material -- such as a translation -- the second fair use
factor would weigh against the use.  (3) Copying only a few pages out of
a large book weighs in favor of fair use.  (4) The effect on market
value is the final factor.  Again, if the purpose of the shiur is to
discuss a blatt of gemarah, it is highly unlikely that copying a page
out of Artscroll's gemarah will reduce Artscroll's income.  The reason
for this is simple: Because the text of the gemarah is not copyrighted,
nothing stops the Rabbi from re-typing the entire blatt into his own
computer and printing out his own copies.

It's important to note that universities -- which, unlike Texaco, are
non-profit -- generally follow the ruling of Texaco and require students
to pay royalties for "course packs" which include xeroxed portions of
books and articles.  For the purpose of a single shiur, however, I think
it's unreasonable to ask that a shul pay for every single copy made in
every situation where a Rabbi wants to cite to a few lines of a
particular text.  The 4th factor of fair use asks about the effect on
the market for the work, but it is understood that a copyright holder
does not have the absolute right to be paid for every use.

In short -- buying a single copy of an Artscroll siddur and making 100
xerox copies of the entire text for morning davening would almost
certainly be a violation of copyright law.  On the other hand, while I
can't be 100% certain, I think that copying individual pages for the
purposes of a shiur would fall under fair use.

> Related issue, assuming it is a halachic problem is what should I do
> when this happens?  Should I say something publicly about the
> practice?  Do I have to leave the class?  Report it to the copyright
> holder etc.

Unfortunately, I don't have the knowledge to give you a halakhic answer
as to what you should do.  Whatever you do, keep in mind that the answer
to whether or not it violates US law is not entirely clear and is very
factually dependent on the individual circumstances.  A reasonable
argument does exist for fair use in most of the situations that you

On another note, David Nimmer, one of the best known experts on US
Copyright law (and fair use) is an observant Jew.  He has written an
article on copyright and the Torah, though after skimming it, I did not
find it particular helpful in answering your question.  I imagine that
he has at least thought about this issue, though given the variety of
fact patterns in which this situation might emerge, his answer might be
just as open-ended as my own.


From: <RYehoshua@...>
Date: Tue, 27 Mar 2007 16:33:29 EDT
Subject: Kalba and Pesach

Any suggestions for chametz-free dog food?
Appreciate receiving response on or off line.



From: Binyamin Lemkin <lemkin@...>
Date: Wed, 28 Mar 2007 10:38:27 +0200
Subject: Kitniyot on Pesach

A fascinating issue regarding Pesach is the issue of minhag hamakom and
kitniyot. Rav David Bar-Hayim has issued a psak halacha which can be
found at www.machonshilo.org which permits the consumption of kitniyot
for all Jews in Eretz Yisrael.

                              Binyamin Lemkin


From: Jonathan Baker <jjbaker@...>
Date: Tue, 27 Mar 2007 23:01:06 -0400 (EDT)
Subject: Parallel Courts

From: David Eisen <davide@...>

> Perhaps this proposal could advance the plight of the Agunot.

> will only increase the sharp religious divisions in Israel. Will there
> be two "Supreme" rabbinical courts - one for Religious-Zionists (and
> ostensibly hilonim) and one for haredim?!

There already are.  Or at least are supposed to be.  The Edah Haredis
has its own court system, its own Badatz "supreme court", its own
poskim, etc., parallel to the Rabbanut system which, until now, *has*
served the RZ and Hilonim.

> What will be next - parallel "Chief" Rabbinates, parallel municipal
> religious councils, parallel batei knessiot, parallel busses, etc?!

Certainly, there already are.  Haredim have their own shuls, in
yeshivot, in hasidic courts, etc.  There are parallel bus lines: regular
and mehadrin, that serve haredi neighborhoods.  That's what the Naomi
Ragen case is about: the de facto parallel buses that are not clearly
marked as such.

As above, there are parallel Chief Rabbinates.

And if the Haredim, who already have their own system, are taking over
the system in place for non-Haredim, what choice does that leave the
non-Haredim, other than to follow the precedent already set by the
Haredim, and set up parallel religious institutions.  Maybe this will
finally lead to civil marriage - if nobody, Haredi Hiloni or RZ,
recognizes the State rabbinic courts, they will lose their power to set
personal-status policy.

        name: jon baker              web: http://www.panix.com/~jjbaker
     address: <jjbaker@...>     blog: http://thanbook.blogspot.com


From: Janice Gelb <j_gelb@...>
Date: Tue, 27 Mar 2007 19:53:38 -0700 (PDT)
Subject: Slavery

Andy Goldfinger <Andy.Goldfinger@...> wrote:

> Someone once told me that in the US legal system, a bail bondsman
> acquires ownership of the bailee if he or she escapes.  I do not know
> if this is true.  Are there any lawyers out there who can set me
> straight on this?

No, there is no concept of "ownership"! Bounty hunters are often
employed by bail bondsman to track down fugitives who have skipped their
court dates, leaving the bail bondsman responsible for paying the
bail. These "hunters" have varying levels of authority in their duties
with regard to their targets, depending on the states they operate
in. They often have permission to enter a fugitive's dwelling without a
search warrant, for example. But they don't "own" the fugitive!

-- Janice


From: Joseph Kaplan <penkap@...>
Date: Tue, 27 Mar 2007 21:44:28 -0400
Subject: Talking in Shul

As I was saying kaddish for my mother after Ein Kelokeynu and before
aleynu this past Shabbat, I was happy that my shul doesn't follow Dr.
Hendel's approach and insists on quiet until the conclusion of adon
olam.  I think it would upset me (and the other aveilim [mourners]
saying kaddish) if people started talking during ein keylokenu and
continued through our saying kaddish, and I think if they started
talking and taking off talleisim at ein kelokeynu, there would be no way
to quiet them.

Joseph Kaplan 


From: Michael Broyde <mbroyde@...>
Date: Tue, 27 Mar 2007 21:34:15 -0400 (EDT)
Subject: Torture

Russell Jay Hendel, in his response to my article on torture makes the
following claim:

> If I understand Dr Broyde's essay "Since you can kill the enemy you
> can A FORTIORI do other things (like torture)" But is that true? For
> example if you are killing a female soldier can you rape her first?
> Certainly not.  Here we have an explicit Biblical text (Dt22) which
> only allows relations with captives ONCE and then has a ritual to
> desensitize you to her.

He missunderstands my argument.  Rape in the yefat tohar case is
unrelated to the needs of battle or war. My basic claim is that war time
entails the suspension of the prohibitions vitally needed to win the
war, when such is authorized by the proper chain of command. Thus, you
may kill the enemy if that is needed to win the war. What flows from
that is not that you may kill the enemy for fun or torture for fun, but
rather when you can accomplish the same goals without killing the enemy,
but by torturing them, Jewish law permits that, assuming no treaty
obligation to the contrary.  This is well worn territory and I make no
claim here that many others have not made before. Arguments of the
greater include the lesser are standard rabbinic fare.  See my exchange
with Rabbi Klapper in the most recent EDAH journal and the citations

He continues, noting;

> But I have a stronger argument against using torture: The Bible
> explicitly requires "opening all war with requests for peace treaties."
> Jewish law spells out that in ANY war 3 options must be made (a) The
> city can accept noachide law and Israel sovereignty (taxes) (b) war is
> waged on 3 sides so that anyone who wants too can escape (C) if not you
> have the right to "kill by sword" (either all males or all people
> depending on the war).  There is NO allowance for any other
> behavior. The war does not allow you to degrade people.

For the detailed reply to this argument, see Rabbi Shaul Yisraeli's Yad
Yemini essay 16, which notes that this halacha does not govern modern
warfare.  The notation that "war does not allow you to degrade people"
seems to be without halachic support.

This is an area where many poskim have written ar great legnth and
peoplewould be well served to read some of that literature.



From: SBA <sba@...>
Date: Wed, 28 Mar 2007 12:55:07 +1000
Subject: Where the Ben Ish Chai is buried?

The biography of the Ben Ish Chai
        English version: In Our Leaders' Footsteps, volume 4, The Ben Ish 
        Hebrew version: Be'Ikvois Rabboiseinu, crach 4, HaBen Ish Chai
has a photo of the Ben Ish Chai's matzeivoh in the Old Beis HaChaim, Bagdad


From: <mp@...> (Mark Polster)
Date: Mon, 26 Mar 2007 11:59:30 -0400
Subject: Re: Zeycher vs Zecher

At the risk of further beating an already dead horse, I note that Boruch
Merzel has declared the issue "resolved, long ago" in favor of zecher
(i.e. six dots), by the Vilna Gaon, relying on Radak (who is far from
the most authoritative rishon on these matters).  This would no doubt
come as a surprise to no less small time baalei dikduk such as Aharon
ben Asher, Menachem de Lonzano, Minchat Shai, and others all of whom
quite clearly felt that zeycher (i.e. five dots) is correct.

Without getting into a long screed on whether the Vilna Gaon is or is
not a more authoritative baal dikduk than ben Asher, I would simply
point out that this minority view of the Vilna Gaon is arguably how the
"controversy" over the correct pronunciation of the word got into the
mainstream of Ashkenazi tradition in the first place.  To propose that
the view that got the argument started in the first place actually
resolvesthe issue is to put the cart before the (admittedly already
dead!) horse.

Kol tuv,
Mark Polster

From: Eitan Fiorino <AFiorino@...>
Date: Mon, 26 Mar 2007 14:55:05 -0400
Subject: Re: Zeycher vs Zecher

> From: <BoJoM@...> (Boruch Merzel)
> For me the issue of Zeycher vs Zecher was resolved, long ago, 
> by the GR"A in his "Diyukim B'nuschei Ha-tfila Uvrachos" 
> (found in the back of the first volume of most recent 
> editions of the Orach Chaim) The Gaon za"l states that the 
> correct pronunciation is ZECHER, with a segol under both the 
> "zayin" and the "chaf".
> He states, too, that this is also the correct pronunciation 
> of the word thru' out Thilim and for the reading of parshas 
> Zochor.  Among the sources he cites is the Radak. The Gaon 
> was no small time Baal Dikduk and the other diyukim he makes 
> should be noted by anyone concerned with proper t'filah.

Only problem with this theory is that, as far as I know, when it comes
to issues of kriat hatorah we don't pasken like the Gra over the baalei
hamesorah, all of whom agree it is a tzeirei.



From: Jonathan Baker <jjbaker@...>
Date: Mon, 26 Mar 2007 11:07:55 -0400 (EDT)
Subject: Zeycher/Zecher and Machlokess

Congratulations, you've picked one position and stick to it.  The
problem arises because the Gra said Zecher, while R' Chaim Volozhin, his
chief student, said Zeicher, and the Mishna Brura suggested that one say
both.  Probably out of uncertainty whether the Gra really said Zecher if
RCV said Zeicher.

So saying both is a recent custom, and now some would like to undo it.
I wonder, what's the cutoff for rejecting a new custom?  Since I don't
see this one disappearing, it has to be less than 100 years.  IOW, how
long until women's tefillah groups become normative?  They've been
running for about 35 years, and run counter to many opinions.  Repeating
Zeycher/ Zecher is 100 years old, and also runs counter to halacha: if
the first is correct, the second was said in vain, and vice versa.
Similarly, in l'affaire Slifkin, as well as in the current YCT debate,
different sides take the statements of rabbonim 50 years ago as
dispositive, while those from only 30 years ago can be ignored, or vice

        name: jon baker              web: http://www.panix.com/~jjbaker
     address: <jjbaker@...>     blog: http://thanbook.blogspot.com


End of Volume 54 Issue 53