Volume 54 Number 61
                    Produced: Fri Apr 13  5:10:21 EDT 2007

Subjects Discussed In This Issue: 

Conservative Responsa
         [Janice Gelb]
Copyright Law and Learning
Efficiency of the Shiddach System (2)
         [Dov Bloom, Carl Singer]
Steinzaltz Talmud
         [Yisrael Medad]
Zeycher vs Zecher


From: Janice Gelb <j_gelb@...>
Date: Thu, 29 Mar 2007 05:45:28 -0700 (PDT)
Subject: Re: Conservative Responsa

Dr. Josh Backon <backon@...> wrote:
> And you want to learn Torah from them ????????????????????

I believe that the tone of this sentence, and the extensive question
marks after it, is not helpful to the discussion and exhibits
questionable derech eretz.

-- Janice


From: Anonymous
Date: Fri, 30 Mar 2007 01:30:01
Subject: Copyright Law and Learning

Eitan Fiorino wrote:
> While poking around on this issue I saw cases in which churches were
> permitted under Fair Use to reproduce things like plays and hymnals
> for use in religious services/performances.  This would seem analagous
> to the case in which a page of an Artscroll gemara is photocopied.

Could you give a cite to these cases?  I ran a few searches in Lexis and
couldn't come up with anything specifically in this context other than
Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962), which goes the other way,
but is a very old case with facts somewhat different from the ones we're

Ed Greenberg wrote:
> I would be concerned that, by copying the page of Gemara each week (or
> each day) in order to avoid stocking the classroom with copies of the
> text, we have gone beyond fair use.

Again, I'm not an attorney, just a law student with a bit too much free
time on his hands...

I think that the example you're describing -- a daily daf yomi -- is
closer to the situation of a shul buying a single copy of a siddur and
making 100 copies for daily use.  As I have said, I doubt my siddur
example falls under fair use, and I similarly doubt that making copies
of a single Artscroll Gemarah for daily use would fall under fair use.

What I'm describing is the making of copies of specific pages for a
single shiur or a shabbat drash.

Also -- I can't imagine why a shul would actually make daily xerox
copies of an Artscroll for daily daf yomi use.  It's probably less
expensive in the long run and more pleasant to have the actual books.

> Yes, the Hebrew text is public domain, but the typography, layout,
> page breaks, page numbers, any translation and commentary, etc., are
> not.  They could be considered a Derivitive Work.

As far as I can tell, fonts/typefaces are not subject to copyright.  See
Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978); Adobe Sys. v.
Southern Software, 1998 U.S. Dist. LEXIS 1941, at *11 (D. Cal. 1998).  I
doubt that page numbers and page breaks are copyrightable unless you can
show some originality in their choice that isn't purely mechanical.
Similarly, I suspect that layout of a page in a siddur is more
functional than creative, and thus may not be subject to copyright.  In
any event, even if these elements are subject to copyright, and thus
make the siddur a derivative work, the overall effect -- of a public
domain work with specific formatting -- would place the work on the edge
of copyrightability, and thus weigh the second fair use factor in the
direction of a finding of fair use.

Obviously, translation and commentary have a higher level of protection,
but I still have a feeling that the copying of individual pages for a
one-time use would be OK.

> I think the Rabbi SHOULD retype the Hebrew text, and only the Hebrew
> text, in order to avoid even the appearance of stealing from the
> publisher of the book, especially in the pursuance of a Kiddush Hashem
> such as offering a shiur.

I ran a Lexis search for ("artscroll" or "mesorah") and came up with
almost nothing useful.  I found one case where a publishing house was
found liable for copying and selling an entire siddur.  Merkos L'Inyonei
Chinuch, Inc. v. Otsar Sifrei Lubavitch, Inc., 2004 U.S. Dist. LEXIS
22637 (E.D.N.Y. 2004).  (The only other reference to Artscroll I can
find is in a case from the Supreme Court of RI, which involved a
murder/robbery at a restaurant called "The Ark."  The judge who wrote
the opinion apparently decided that it would be funny to include various
puns regarding the story of Noach and his ark, and cites to Artscroll's
Bereishis for the proposition that the flood was caused by thievery.
State v. Carter, 744 A.2d 839 (R.I. 2000).)

While there may be some unpublished cases not in Lexis, this tells me
something interesting: Artscoll and Mesorah, its parent company, have
not been involved in much copyright litigation that made it to court (or
at least into Lexis).  It certainly seems that the company doesn't feel
the need to litigate the issue of its copyrights, or at the very least
deals with such situations quietly (perhaps through a beit din? -- has
anybody ever heard of a beit din handling copyright issues?).

Finally, I'm not sure I can agree with your suggestion that a Rabbi
should retype the text in order to avoid even the appearance of
stealing.  For that matter, although copyright infringement has
frequently been called "stealing," I think the word carries certain
connotations which may not apply to copyright infringement.  Firstly,
making a copy is unlike theft of a physical object, which permanently
removes an item from its owner.  Secondly, in American law, theft of a
physical object is a criminal act for which you can be arrested by a
police officer and thrown in jail.  For the most part, copyright
infringement is not a crime in quite the same way; generally, the
owner's main remedy is to sue you for damages.  Finally, unlike your
rights to a physical object, the rights of a copyright owner expire
eventually, at which point the work falls into the public domain.

In terms of halakha, the JLAW article doesn't clarify this issue.
Apparently, some sources (like Rabbi Moshe Feinstein) liken certain
types of infringement (the copying of cassette recordings about Torah)
to theft, whereas others place copyright generally in a category of
economic protection.  The last page of the article describes a dispute
between Rabbi Shmuel Wozner and Rabbi Yaakov Blau regarding the very
type of use in a shiur that we're discussing here.  In this case,
American law is very unclear about where the copyright owner's rights
begin and end.  I would go so far as to say that the law is deliberately
unclear and muddy in order to provide some balance between many
different public policy objectives.  If that is the case, why should a
shul, in the name of halakha, raise one of those objectives -- in this
case, the publisher's questionable right to prevent all copying -- above
all others, when the halakha most analogous to copyright is itself
unclear and based in its own set of law and policy issues?

Personally, I think the best course of action might be for the shul to
get an opinion from its lawyer regarding the contours of American law as
applied to the ways in which a shul may copy texts.

One other issue that's relevant here.  American copyright law grants
rights which can easily last for a century.  Assume that a particular
religious text -- for sake of argument, a Rabbi's commentary -- goes out
of print, the publisher ceases to exist, and the publisher's legal
successors cannot be found.  Under American law, it is technically
infringement to make any copies of the text until the statutory period
of protection has ended.  If there's a lesson in this commentary that a
shul wants to study, but the shul has only a single copy, is there any
*halakhic* problem with making copies.  Keep in mind that in this case,
the actual owner is missing, and that owner may not even realize that he
owns the rights.  Under halakha, is the work effectively "hefker," or
ownerless, and thus may be copied?  May we make the assumption that the
author would rather have had his work used freely for learning rather
than disappear forever?


From: Dov Bloom <dovb@...>
Date: Thu, 29 Mar 2007 23:13:26 +0300
Subject: Efficiency of the Shiddach System

Anyone who decides a question which is the most important decision of
their LIFE after 5-10 minutes of meeting a stranger in my opinion needs
their priorities or their heads examined. What can I say about anyone
party to or supporting such a system???

From: Carl Singer <casinger@...>
Date: Thu, 29 Mar 2007 18:14:02 -0400
Subject: Re: Efficiency of the Shiddach System

Dov Bloom wrote:
>Anyone who decides a question which is the most important decision of
>their LIFE after 5-10 minutes of meeting a stranger in my opinion needs
>their priorities or their heads examined. What can I say about anyone
>party to or supporting such a system???  Of course you're right.  Even
>if this stranger is carefully pre-screened and comes from a
>"compatible" background 5 minutes doesn't make sense.

But it's not necessarily a life-time commitment decision, it's just a
"next step" decision.  Apparently many people do decide in the negative
very quickly*.  I'm not talking "love at first sight" -- but
"incompatibility at first meeting."  Thus all the time and effort going
to setting up the meeting was of limited value -- either because this
set-up effort is ineffective -- asking the wrong questions, getting the
wrong answers -- or because of unknowns that the set-up effort cannot
address.  In any case, it would seem that IF there's a high probability
of a negative outcome from the face-to-face meeting (and that outcome is
not really a function of how much time and effort has gone into setting
up the meeting) THAT the face-to-face meeting should take place earlier
in the sequence.

A friend told me a great story.  He was at a wedding standing near a
young man who is about 6' 6" tall (that's about 2 meters for Europeans.)
-- a woman approached this young man and announced that she had the
"perfect girl for you" (clearly a "tall perfect") -- the reply from 6'6"
was "Thank you, but I'm a Junior in High School!"  Too bad she wasn't a
basketball coach.

Another formulation of this process might be as follows:

The first stage the third party shadchuns discuss Boy A & Girl B -- and
then the parents do their "research" 
Outcome of Stage 1 -- (1A) Boy A & Girl B are independently told about
each other or (1B) third parties or parents decide it's not worth going
further = STOP

Second stage Boy A & Girl B are independently told about the other
Outcome Stage 2 -- If both agree, there will be a meeting, if either
objects STOP

Third stage Boy A & Girl B meet
Outcome of Stage 3 -- If both agree there will be a 2nd meeting ....  if 
either objects  STOP

How much time and effort should be devoted to Stage 1?

* No doubt there are people who will tell of initial dislike (even
loathing) turning into a positive long term relationship -- but that's


From: Yisrael Medad <ybmedad@...>
Date: Fri, 30 Mar 2007 00:35:01 +0200
Subject: Steinzaltz Talmud

I hope I am correct that someone a while back was wondering how many
volumes have been published.  So far, 39 (and the Yerushalmi "Pe'ah"
makes 40).  Most recent = Kritut-Me'ilah.



From: <mp@...>
Date: Thu, 29 Mar 2007 11:40:33 -0400
Subject: Re: Zeycher vs Zecher

From: <BoJoM@...> (Boruch Merzel)

> ....Mark should have been a bit more m'dakdek in what I wrote.  I did
> not say the issue was "resolved long ago in favor of Zecher" I said
> that for "me the issue the issue had been resolved long ago by the
> G"RA"....

To the extent that I misconstrued Boruch's comments, my apologies.  And
to the extent that one is simply attempting to decide how to recite
Ashrei in their private t'filla, then I agree - pick a posek and stick
with him.  I assumed that by sharing your personal practice with the
list you intended to indicate some preference for that position which,
notwithstanding the Gaon's admitted expertise, would seem to be the
weaker position in light of the currently available evidence (much of
which was not available to the Gaon).

Jonathan Baker writes on the same issue:

>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.

The Ma'ase Harav, whose author davened regularly in The G"RA's shule and
is considered to be the ultimate authority in his minhageh hatfila and
nusach, very clearly states the Gaon said "Zecher" ...

Just to clarify - in his endorsement letter to the publisher of Ma'ase
Rav, Rav Chaim Volozhin questions the position taken by the author, Rav
Yisascher Ber, on this precise point and claims that the Vilna Gaon read
with five dots, not six.  Whether this represents a dispute between RC"V
and RY"B as to the actual practice of the Gaon with one of them being
correct and the other incorrect, or (as seems more likely) whether the
Gaon actually changed his practice later in his life, is a matter of
some debate, and RC"V himself conceded in his letter that either was
possible.  Either way, I question whether the Gaon himself would have
continued to read zecher,if he'd had access to the overwhelming evidence
to the contrary that is now available.

From: Anonymous
> ....Also how do shuls trade off "tradition" (their traditional minhag
> re: pronunciation) vs. "erudition" -- someone digging in with a
> scholarly -- "this way is better." or "this way is more authentic"....

Not to pick on this one particular post, but we should take care not to
confuse issues of "minhag" with issues of textual accuracy of Tanach.
If everybody agreed that the vowel under the zayin was a tzeire and we
were just arguing over how the tzeire should be pronounced, then we're
talking about "minhag" and I say let each community, or shul for that
matter, follow their minhag.  However, the dispute is over which vowel
is correct and this is a question of the textual accuracy of our masorah
- there is a right and a wrong here!  [Yes, I know, there are two
different "minhagim" for the text of Torah, most notably Gen. 9:29 - but
nobody argues that both are equally valid.  In those cases there was a
debate as to which was right and which was wrong that has perhaps
morphed into a stronger-than-usual reliance on "minhag avoteinu
b'yadeinu" so as not to invalidate every sefer torah in the world!].

With that distinction in mind, I would argue that there is no question
how shuls should trade off "tradition" vs. "erudition" in these matters
- best textual evidence wins, always.  This has always (at least for the
last millenium or so) been the approach in textual matters - from
Rambam's endorsement of ben Asher through a long line of masoretic
experts culminating most recently in Rav Breuer, zt'l.


End of Volume 54 Issue 61