Friday, September 23, 2011

Random Musing Before Shabbat – Nitzavimm/Vayelekh 5771 – Reader’s Choice

Call it writers block, or call it laziness. Whatever it is, it compels me to simply offer you this week a list of previous musings for Nitzavim/Vayelekh. I think they’re all worth reading. They represent a cross-section of my evolving and changing views over the years (as well as evidencing some constancies) and provide a nice window into how I deal with the tensions at the heart of Judaism.

Shabbat Shalom,

©2011, linked material ©1997,1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010

Friday, September 16, 2011

Random Musing Before Shabbat-Ki Tavo 5771 – Curse This Parasha!

G”d could take a lesson from the Rambam (Maimonides.) The Rambam extrapolates, from the Torah verse “you shall not curse the deaf” (Lev. 13:14) that Torah was teaching us that the one who curses is a much a concern as the one who is cursed. For some, the Rambam explains, the mere act of verbal cursing will provide the necessary catharsis to prevent the one cursing from taking any physical act of revenge, however, cursing is just as likely to incite the curser further to commit to pursuing a course of physical vengeance or retribution against another party, only after which the curser feels ready to move on.

Given this, we have to ask ourselves why our parasha, Ki Tavo, is chock full of curses, including a series of ritualistic curses to be pronounced by the Levites when the people enter the promised land. If we follow the Rambam’s logic, then those pronouncing the curses might be tempted to be overly zealous in their pursuit of identifying and dealing with those who transgress and invoke the curse.

This of course brings up the very important conditional nature of the curses that appear in this parasha. These are not curses in the form of imprecations simply uttered by one wishing G”d to inflict punishment on another. The curses are warnings of what will befall those who do not follow G”d’s instructions and keep G”d’s ways.

There’s no clear direction from G”d to Moses and the elders to give this list of blessings and curses to the people. D’varim is, after all, one long discourse by Moses. So it would be unfair to indict G”d for threatening curses upon the people (thus, by the Rambam’s logic, making G”d more prone to continue to seek vengeance on the people.) Yet we can take Moses to task for his usage of curses as threats or warnings. While Moses has certainly seen the wrathful side of G”d, Moses has also seen the ever-loving side of G”d. The fact that Moses instructs the people with a list of blessings and curses makes that clear. Do right by G”d and be blessed, do wrong by G”d and be cursed.

While the blessings here are promises, the curses here are warnings. It’s Moses’ way of saying “choose wisely.”

Nevertheless it still troubles me that the threat of curses is used as an instrument to keep the people in line. One has to wonder if the Jewish people might have been less recalcitrant in their transgressions of G”d’s instructions if only a positive message had been used. (Human nature being what it is, there’s little evidence that a positive message would have been more successful than negative reinforcement, but there’s no clear evidence it would have been any worse. The threats of curses didn’t seem to have the desired effect. Or did they? It can easily be argued that the Jewish people might have been even worse in their transgressions without the threat of the curses looming over their heads. We’ll never know.)

The correctness of the Rambam’s view is clear in our own time. Surely I need not enumerate the countless situations in which mere verbal cursing led to much more drastic physical results. If it’s catharsis we seek, perhaps we can get it with verbal expressions that aren’t curses. I know many who try and avoid saying things like “G”d damn it” or “G”d damn you” and seek benign-er substitutes. In fact, one might make the case that allowing us to utter normally inappropriate language, like those seven words you used to not be able to say on television, in the place of curses (which, by definition, seek some sort of supernatural bad consequence befall someone or something else) may provide better catharsis, and be less likely to tempt us to take actual physical vengeance.

Here’s the thing about curses. Often the utterance of a curse turns out worse for the person who utters it. They can wind up consumed by guilt, even if nothing bad ever befalls the person they cursed. We do feel bad when we curse others, as we should. (Which would lead me to ask if Moses and the Levites should feel bad for uttering curses if it were not for the fact that these being conditional and only potential curses mitigates the situation. Or does it? History is replete with conditional curses. Does making a curse conditional make it alright to curse? Is it ever moral to wish for the Deity to cause harm to befall another? In fact, is a prayer for victory over another, even in a sports event, almost the moral equivalent of asking for a curse upon the other party?

Moses and the Levites are enumerating some pretty bad outcomes in their conditional curses. Some of them are disturbingly graphic in nature. It’s no wonder it was decided to soften the blow by providing such a positive haftarah reading from Isaiah.

Yes, there are times when we need to be made to feel low, in order that we might appreciate the normals and the highs. The combination of Torah reading and haftarah reading for Ki Tavo does strike a nice balance. However, I still wish we weren’t subjected to hearing these curses annually – even if it has become traditional to rush through them quickly and quietly.

The very concept of curses is one that could easily be utilized by the Hitchins’ and Gladwells of the world as yet another argument against religion and belief in G”d. If there’s no Deity to call upon to ask for evil to befall another, there might be no cursing, right?  I wonder. Even if every human being were a rationalist, realistic, and fully scientifically knowledgeable about the nature of the universe, we might still call upon the universe’s randomness to result in harm to another.

There is yet another side to curses we haven’t explored. The efficacy of curses is dependent on the willingness of both the utterer and object to believe in their efficacy. (Yes, that’s a circular argument, but it works.) Moses surely believed that curses were efficacious and thus posed a viable and credible deterrent when used as a threat to the people against transgression of the G”ds laws. Curses used by the builders of Egyptian tombs were dependent on the willingness of potential grave robbers to fear them. It seems they have only proven truly efficacious in the movies (though again it is hard to know how many potential tomb robbers never went through with a robbery as a result of learning about a curse.)

The Rambam argues that cursing was an especially important prohibition and the Torah is strongly concerned about  it because the Torah takes into account the beliefs and superstitions of the people (even when they might be erroneous) in determining how to instruct the people in the law. Again, following the logic here, we can perhaps justify the Torah’s inclusion of all the curses in the parasha, not because the Torah (or G”d) actually believe (or will cause) such things to pass, but rather because they believe the people believe it just might, and that ought to be enough to make them take the warnings seriously. Talk about preying on people’s superstitions.

The end result of my own wrestling with this is to make me even more upset and angry at the inclusion of these curses. Yes, you can argue that G”d was treating the Jews as the relative children they were at the time, and speaking in a language and with metaphors they could understand. Yet, if that is the case, since so much of the Torah was written with that in mind, does that not give credence to the view that the Torah is not intended to be eternal and unchanging, at least in matters of interpretation as opposed to actual text? Rabbinic tradition has already altered the Jewish view of these blessings and curses from what was probably their raw original understanding. The rabbis cloak their revised interpretations in the mantle of oral Torah and rabbinic authority (as in the story of the oven of Akhnai.) I’ve no need to cloak mine.

These curses are here because at the time the text was written (however that happened) the text’s creator(s) believed that curses as threat would be effective. I do not believe they are effective any longer, and I am not even certain what we can learn from them. My covenant with G”d as a Jew is no longer dependent on what this parasha teaches. I will not be compelled to follow the mitzvot under threat or duress.If there were parts of the Torah that I were comfortable with expurgating completely, this parasha would be one of them. (I could do without large portions of D’varim entirely…)

Yet this is not like me. I like the challenge that Torah presents – I sometimes revel in that challenge. So why do I shrink from this one? That is the question that I shall be asking myself this Shabbat. What will be your question?

Shabbat Shalom,

©2011 by Adrian A. Durlester

Other musings on this parasha

Ki Tavo 5769 - If It Walks and Talks Like a Creed...
Ki Tavo 5767 - Uncut Stones
Ki Tavo 5764-Al Kol Eileh (in memory of Naomi Shemer, z"l)
Ki Tavo 5763--Still Getting Away With It?
Ki Tavo 5760--Catalog of Calamities
Ki Tavo 5761--Rise & Shine
Ki Tavo 5762--Al Kol Eileh

Friday, September 9, 2011

Random Musing Before Shabbat – Ki Teitzei 5771 – Metaphorical Parapets

Officials knew the hurricane was coming. They recognized the potential danger it posed for the citizens of their states, counties, cities, towns, villages, etc. Deciding to err on the side of caution, they ordered evacuations, shut down public transit, and took other actions to prepare.

People grumbled and people whined. Many followed the directions of officials, yet a significant number chose to flaunt their independent nature.

Some communities were heavily damaged. Others escaped the worst possible outcomes. Yet others suffered more problems in the aftermath of the hurricane: flooding, loss of electricity and other utilities. In some areas it took days, even a week or more, to restore service.

No sooner than the storm had passed that the pundits were out second-guessing the officials, criticizing the the officials (and the media) for over-reacting.

Now we are approaching the tenth anniversary of 9/11. Already NYC is experiencing massive traffic jams due to the increased and heightened security. Again, people are grumbling and complaining – though this time there are grumbles on both sides – i.e. some are grumbling that the whiners and grumblers about the delays and inconveniences need a reality check – that in light of what did happen almost ten years ago, no precaution and no inconvenience is too much.

Both situations are examples of putting the commandment from D’varim 22:8 to build a parapet on the roof of one’s house into practice in a more metaphorical sense.

After all, unlike some ancient practices which Jews maintain to this very day, we don’t all erect a parapet on the roof of any new homes we build and occupy. I’ve had well-meaning non-Jews ask me several times over the decades (this came up not a few times while I was a student at Vanderbilt Divinity School) why, given that we still follow the commandment regarding shatnez (the mixing of wool and linen in garments) from this parasha, or to cite an example from elsewhere in the Torah, given that we still place mezuzot on our doorposts and gates, do we not create even “symbolic” parapets on our homes.

This has always been for me a very teachable moment. It is an opportunity to explain how Judaism has evolved and continues to evolve. From there we can explore the various ways in which Judaism has evolved – from nomadic existence to slavery, to wandering in the wilderness, to ancient nation-state, to Temple cult, to exile/return/rebuilding, to diaspora, to rabbinic Judaism, to the medieval philosophers, to the haskala, to the hasidim and mitnagdim, to Reform/Conservative/Modern Orthodox, and beyond.

Certainly by the rabbinic period, guided by Mishna, Gemara and eventually the Talmud, we were restructuring Judaism with an eye to current circumstances. Choices were made as to which commandments we could still practice, and guidance was offered for the many commandments that were unclear, or challenged by new realities. The rabbis, sages, philosophers, and contemporary poskim all thought/think carefully about how to reconcile Torah with current circumstances and knowledge.

Many non-Jews (as well as many liberal Jews) have the mistaken idea that the modern liberal Judaisms (Reform, Conservative, Reconstructionist, Renewal, Humanist, et al) are the only form of Judaism that is evolving. Almost each and every day our brothers and sisters in the traditional/orthodox/hasidic/frum communities struggle with our rapidly changing world and society, and turn to their rabbis, leaders, and scholars for guidance.

Our traditional friends are often criticized for basing their “wiggle room” decisions on following the “letter of the law” rather than the intent. To some extent, there is validity to that criticism, however, I do not believe it can be generalized. I have read a good many opinions of orthodox poskim that clearly wrestle with both letter and intent of the halakha. With the exception of the scoundrels that exist in any community, I am certain that orthodox/traditional/hasidic/frum leaders are always concerned with more than the letter of the law when rendering opinions or decisions. To believe otherwise would also require me to think somewhat poorly about their antecedents, the rabbis who created what we know as rabbinic Judaism.

Sure, Hillel (and many other great rabbis) kept a keen eye on the practical, and there are times I am compelled to question some of their opinions (Hillel’s prosbul comes to mind as a somewhat dicey approach.) We’ve also the great story of the oven at Akhnai in which the rabbis clearly state that their opinions (which they base on the “oral Torah” of which we have only their word that it, too, was given to us at Sinai) are the only ones that matter in interpreting the Torah (and even G”d admit defeat at the hands of G”d’s own creations, according to the story.) Yet, despite the enormous hubris of the great rabbis, I’m reluctant to suggest that their approach to interpreting the Torah was almost entirely focused on the practical, because there is too much evidence to the contrary. Indeed, ethics, intention, and even metaphysical probably figured into their opinions.

As to parapets, there’s lots to consider. First, the commandment specifies new construction. It also clearly stipulates that the reason for the commandment is to avoid blood guilt by protecting the lives of those who go on your roof. Parapets certainly make sense on flat roofs, and especially in a time and place when roofs were used for drying and other activities and used regularly. Makes somewhat less sense on slanted roofs and ones where people would not usually go.

Yes, we’re back in an era where one finds plenty of flat roofs, many of which do see regular use for all sorts of activities.I daresay one would be hard-pressed to find a flat roof anywhere in the world today that wasn’t protected by some kind of parapet-what builder or landlord wants to be found liable of not being reasonably prudent in protecting people from falling off the roofs of their properties?

Jews today interpret the parapet commandment as instructing them to always take reasonable precautions to protect the lives of others (and themselves) by making sure their property or premises are safe.

All of which is a long way to go in explaining why we don’t build parapets, and why, in a way, we still do.

Human beings are far from perfect. I am sure there were people in ancient Israel who ignored or flaunted the parapet regulations, even though they were from the Torah. Just as there are plenty today who flaunt the need for real or metaphorical parapets. Their arguments probably haven’t changed all that much: too expensive, too inconvenient, bad cost/benefit ratio, nobody ever goes up there anyway, people need to take their own precautions, only an idiot would go near the edge, etc.

During the recent hurricane, NYC police had to rescue two people who had chosen to go out kayaking in NY harbor. People who chose not to evacuate from mandatory evacuation zones had the nerve to complain that city officials didn’t do enough to help them!

No one asked to die in the twin towers on 9/11. That’s why plenty of people, professionals and volunteers alike went in to try and rescue folks. No parapet could have saved them (though it can be argued that problems and holes in our intelligence network were sufficient as to be compared to the lack of a metaphoric parapet. In the aftermath, officials did realize they needed a better parapet, and they set about building one. We can argue about how well they did/are doing, and about the liberties that may have been sacrificed in the process, but that’s not the focus here.)

So I applaud the way that officials take their obligation to build parapets seriously. I am more than willing to put up with inconvenience for the chance that lives can be saved. I think that how we create these metaphorical parapets is a subject that needs discussion as thorough as the type employed by the rabbis of the Talmud, who always sought to look at every side of a question. I also think that, like the Talmud does, we ought to preserve within our records all the arguments – because times and circumstances do change, and a time may come when access to the dissenting opinions may prove invaluable in meeting challenges.

It is said that the rabbis of the Talmud sought to create a fence around the Torah. They were concerned with the potential for violating commandments we didn’t fully understand, so they instructed us to keep our distance from the problem area just in case.

Today, many people are climbing over, digging under, or simply ignoring that fence, to get to the Torah. Which raises the question – does the Torah herself have a parapet to protect those of us who who ascend her heights? I can think of several responses to that question, but I’d rather leave it unanswered here so thought you (and I) might have something to do this Shabbat. I hope that you will share your answers with me and all my readers.

May this Shabbat be your parapet in these tumultuous times.

Shabbat Shalom,

©2011 by Adrian A. Durlester

By the way, I have a new blog: Adrian is Back in The City on which I am sharing my thoughts at being back in NYC after over three decades away, and having lived in communities large and small around the country. I also blog on Jewish music (Hava Nashira Blog) and Technology in Jewish Education (Yoeitzdrian)

Other musings on this parasha:

Ki Tetzei 5769 - The Choice of Memory
Ki Tetzei 5767 - Honoring Inconsistency
Ki Teitzei 5766-B'Shetzef Ketzef
Ki Tetze 5764/5-The Torah, The Gold Watch, and The Rest of the Story
Ki Tetze 5757,9,60,63--The Torah, The Gold Watch, & Everything
Ki Tetze 5758--Exclude Me
Ki Tetze 5762--One Standard

Friday, September 2, 2011

Random Musing before Shabbat - Shof'tim 5771 Hassagat G'vul-Revisited

It was only five years ago that I wrote this musing on the subject of Hassagat G’vul, the moving of boundaries, and its extrapolation into the modern concepts of intellectual property rights and copyright. With each passing year it seems to me that general disregard for matters of intellectual property and copyright has gotten worse. We live in a world in which a great deal of stuff is available to a great many people, and people have grown to expect that many things we once thought of as valuable commodities should now be freely available.

It’s not enough to lament this situation. Strict enforcement isn’t the answer. I have some thoughts on what might work, but more on that later. Here’s what I wrote just 5 years ago (with some modifications and additions.)

19:14 You shall not move away the boundary (marker) of your neighbor which the first ones boundaried, in your taking possession of it, in the land which Ad"nai Your G"d gave to you to inherit. (JPS)

It's a simple enough commandment. You can't encroach on your neighbors property by moving the boundary markers around. There's plenty enough material in other parts of this parasha (and in particular the verses that follow soon after, regarding the requirements for witnesses in a legal proceeding.)

From this fairly straightforward verse in Torah, the rabbis constructed an entire class of laws referring to hassagat g'vul, encroaching upon the boundaries of others. As an agrarian society, the land one possessed had a direct impact on their ability to live, to, as we say, "make a living." As we moved from being a largely agrarian society into becoming merchants and engaging in other trades, it became necessary to define what "borders" needed to be protected in order to insure a person's livelihood.

The Talmud has a great example of how this concept was extrapolated into halakha when it speaks of the rights of a fisherman to not have his fishing-grounds encroached upon by other fishermen with their nets, the Talmud requiring that the other keep away at least the distance of a fish's swim (which they defined as one parasang, equivalent to about 2.5 miles!)

The concept of hassagat g'vul, moving boundaries, was eventually extended to the concept of unfair competition. And from there, it was a short hop to become one of the underlying concepts behind what Jewish law has to say about the protection of intellectual property, and more specifically, what we now call copyright.

The Chatam Sofer, Rabbi Moshe Schreiber (1762-1839, chief Rabbi of Bratislava) used the concept of hassagat g'vul to underlie his opinion on a matter concerning the editor of a series of siddurim (prayerbooks) and makhzorim (holiday prayerbooks) who was seeking to prevent others from republishing his editions. For the Chatam Sofer, it was ultimately a matter of comparing the work that the editors had put into their siddurim and machzorim - the layout, typestyles, etc. (though obviously not the basic text itself) to that of the fisherman who labors to lay his traps, set up his nets, and catch fish. The editor's work entitled him to derive income from his efforts, and it would be unfair of others to reprint his editions without compensation.

Much of what the rabbis wrote regarding intellectual property rights found its way into copyright laws in the U.S. and around the world. Unfair profiteering and racketeering by record companies, and other egregious abuses notwithstanding, the system has worked fairly well to insure the creator of an intellectual property the means to earn a living from those creations, and to be protected for unfair competition or use of those creations by others without permission or compensation.

And now, here we are, in the 21st century, with digital music, iPods, Napster, et al. Decades of copyright laws, and centuries of tradition seem to have outlived their usefulness. The laws as we know them have certainly not kept up. While the U.S. Patent and Trade Office, and its Copyright Office have been working hard to find ways to update the laws to reflect current (and future potential) realities, there have been only a few minor tweaks here and there so far like the Digital Millennium Copyright Act. (This act primarily serves to enable DRM, Digital Rights Management schemes employed by the recording industry and make it a violation to circumvent them.  Since the act was passed in 1998, most major companies have dropped DRM schemes. Few of the commercial services (iTunes, Amazon, Rhapsody, etc.) still carry DRM-protected files.)

Judaism has managed its way around a host of major changes in society, and we'll find a way to manage this change as well. Yet the stage is already set for the almost complete tearing down of boundaries, by the alarming state of copyright abuse that goes on daily in our many Jewish institutions - synagogues, JCCs, schools, etc. I can't tell you how many times I have seen photocopies of complete textbooks being used, DVDs and Videos intended for personal home use being shown to large audiences. Photocopied music being used by choirs. Not to mention the times when I've overheard someone standing at the sales table of some musical artists at a concert or conference say "I'll buy these two CDs, and you buy those two, and we'll make copies for all the rest of the faculty.)

Modern technology and the digital age have become a double-edged sword (which, by the way, is another original Jewish reference!) While the technology has seen a flourishing of new works of Jewish music of all kinds, it is also enabling people to easily make and distribute copies without any recompense to the artists who created the work. The present flourishing may be reduced to a trickle if the artists can't make a living.

Yes, I'm an educator who has run religious schools, so yes, I know what a limited budget we all have to work within. I also direct choirs and know what choir music costs. I understand with a deep passion how important the work we all do is to the future of Judaism. I'm also musician and arranger, and my work appears on a few recordings. I know that writers of Jewish music want to get their work out to people – however, they still want to make a living. So I am sensitive to both "sides" of this issue.

The rabbis knew this tension as well. As usual, not being of one mind, they differed on whether "copyright protection" would be a stimulus or deterrent. Some argued that without the incentive of some income from their efforts, scholars would be reluctant to write more commentaries. Others argued "the more Torah, the better." It's hard to argue with that. Just as it is hard to argue with the constant cry of "Lashem Shamayim" (for the sake of Heaven) that is used to justify the scandalous amount of copyright infringement that occurs each and every day in our Jewish institutions.

Yet, if what we are doing is truly "LaShem Shamayim" is it not all the more incumbent upon us to not infringe upon the boundaries of others in such a way as to possibly impact their parnassa, their livelihood?

We need not engage in a "glatt kosher" process here. Common sense must prevail. For example, these days many of the publishers of choral music will grant permission to use photocopies with the purchase of some reasonable number of print copies of the music. Using technology, many artists and publishers will sell you licenses to print out your, on your own paper and equipment, your own copies of music, books, etc. from PDF files. Digital rights management systems can be made non-onerous and can be configured many different ways to allow the original purchaser to make a reasonable number of copies of the file, or burn the file to a CD more than once, but not unlimited quantities. And what artist, what merchant, for that matter, would not be at least somewhat receptive to offering a reduced price for quantity purchases? Film distributors do charge synagogues and other non-profit or religious institutions a lower license fee to show a film than they would charge for a commercial setting.

I don't know about you, but I felt better having paid the $250 fee to show "Paperclips" to my congregation than simply renting it from the local Blockbuster and showing it. By doing so, I just might help insure that the creative minds behind "Paperclips" continue to create films like that.

The Copyright act does have provisions for what is called “Fair Use.” There are even specific Fair Use rules of educational uses. Maybe it's not fair, but under existing U.S. Copyright law, supplementary religious schools do not qualify for inclusion in the class of educational institutions that benefit from the "Educational Fair Use" provisions covering books, music, films and other media. (Most days schools would qualify, however.) Maybe that's something we ought to lobby Congress to change. However, and this needs to be clearly understood-while we may not qualify under the educational fair use provisions, we are certainly eligible under the general provisions for Fair Use in the Copyright Act:

17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.[1

Whether we what do in religious schools, synagogues, et al would meet the generally applied Fair Use tests (beyond those reserved exclusively for education) is a very gray area. Some legal experts I have spoken to say that much of what we do would easily meet a Fair Use test. Others argue it’s not as clear cut as it seems. Government is always reluctant to get into any controversy that involves religious institutions. Businesses are not so reluctant. Remember that the music industry went after the mega-churches some time back for all sorts of copyright violations, resulting in the creation of many clearinghouses and licensing consortiums in the Christian music world. (I’ve been arguing, and continue to argue, that we need something similar in the Jewish music world, small as we are-because it will make “doing the right thing” easier for all of us.)

I believe it should be "fair use" to show a portion of a film in a religious school class, or create a "class pack" of assembled chapters from a few different books, or audio clips from a few songs in a class. On the other hand, I do agree that we probably shouldn't be showing full-length commercial DVDs intended for private home use to an entire class, or a group of congregants without some kind of license fee. And we shouldn't be using photocopies of entire textbooks, or illegally copied CDs, mp3s, DVDs, etc.

Yes, common sense is required. Noted Jewish educator, author and lecturer Joel Grishaver, in his "meseket photocopy" (masekhet is the word for a tractate of Talmud) recognizes that there are emergencies, last-minute needs, texts from extremely expensive original sources, etc. in which exceptions ought to be permissible and acceptable. Yet he states the other case quite succinctly: " The use of photocopied textbooks, workbooks, instant lessons, etc. to "save money" no matter how poor the school, is an act of theft and undermines the Torah that is being taught."

There are great resources on the web about Fair use. One good place to start in the Wikipedia Article on Fair Use: 

This section is great:

Earlier, I alluded to one possible solution to balance society’s continual call for “more and free” and respect for intellectual property. This is something that needs to come from the creative end. Some time back I read some interesting articles and blog posts that suggested that the solution to overcoming over-saturation and easy access is to give your “product” – your website, your database, your music, your blog – whatever – some unique and defining quality that makes it desirable. For example – there are dozens of sites that might offer the same information. What tangible, or even intangible quality might you be able to give your site to allow it to stand out from the others? Surely this is something artists and musicians already understand.

As a reviewer and critic of Jewish music, I have often remarked about how something does or does not stand out from all the other settings of the same text out there. Good work will stand out. However, that is not enough these days. There is so much noise out there, that “good work will out” is no longer a given. Just look at the mediocrity in general in the popular music industry these days. There’s some really great stuff out there that never gets its due recognition, and some really mediocre stuff that tops the charts. So it is no longer enough to write a really great song or make a really great recording. It needs that, as they say in New Orleans, lagniappe. In fact, that word is a perfect example. It has come to mean that “something extra” but its origins are in referring to little gifts that merchants gave away to their customers at the time of purchase. (A baker’s dozen would be a form of lagniappe.)

The theory is that people will find that lagniappe of value, and it will induce them to buy your product, or order from your website, or download your music rather than go to someone or somewhere else.(Even free things, like website and blogs, can employ the same approach to attract visitors.)

Elul is here. Time to do some inner soul searching. Maybe some organizational inner soul searching. Between now and the end of the Yamim Noraim (Days of Awe, the High Holy Days) might be a good time to go through your shelves, files, Hard drives, CDs, DVDs, videos and weed out the obviously illegal (both under U.S. law and Jewish law) items we have and are using, for ourselves, and our institutions. Time to go to our boards and officers and executives and clergy and insist that we practice the Torah that we teach. Insist that we are not engaging in hassagat g'vul, moving boundaries.

I hoped I've stretched your boundaries a little with these thoughts. If you'd like to know more about copyright and Judaism, please visit where you will find a host of linked resources.

I hope, most of all, that this musing provided you with a little lagniappe!

Shabbat Shalom,


©2011 by Adrian A. Durlester. Portions ©2006 by Adrian A. Durlester

Some other musings on this parasha:

Shoftim 5767 (Redux and Updated 5760/61) From Defective to Greatest
Shof'tim 5766-Hassagut G'vul
Shoftim 5765/5759-Whose Justice?
Shoftim 5763--Pursuit