Friday, August 30, 2013

Random Musing before Shabbat–Nitzavim-Vayeilekh 5773—Opening Our Own Hearts

 

וּמָל יְהוָֹה אֱלֹהֶיךָ אֶת־לְבָֽבְךָ וְאֶת־לְבַב זַרְעֶךָ לְאַֽהֲבָה אֶת־יְהוָֹה אֱלֹהֶיךָ בְּכָל־לְבָֽבְךָ וּבְכָל־נַפְשְׁךָ לְמַעַן חַיֶּֽיךָ:

"Then the Lord your G”d will open up your heart and the hearts of your offspring to love the Lord your G”d with all your heart and soul, in order that you may live." (The JPS translation)

I’ve written about these words before. Back in 1997 I said

“To me, there is no clearer indication, anywhere in Torah, that G”d takes an active part in the relationship between humankind, and more specifically, G”d's covenanted people Israel, and G”d than in Deut 30:6”

The Torah is replete with stories of G”d entering the hearts and minds of people. G”d hardening Pharaoh's heart is one of the best known. So we know that our Torah is telling us that G”d takes an active role.

Nowadays, however, the idea of free will, personal choice, and personal autonomy is the norm. "I'll choose to love or not love Gd." Do we really have that choice? Who is really in control?

If G”d truly loves us, who are made in G”d's image, and who are directed to keep G”d's covenant, could G”d allow us to perish as a result of our own lack of faith, our own non-belief?

G”d's statement in Deut 30:6 is G”d's proof text that G”d exists and that G”d is the big cheese. We may question and doubt G”d's existence, but even in the midst of our doubt, G”d can and will open our minds and hearts.

As we prepare for the approaching season of awe, repentance and renewal, let's make G”d's job a little easier by being open and receptive to having our hearts and minds opened to love G”d.

This year, I’m feeling it’s best if we rely even less on G”d opening our hearts and more on doing it ourselves. I’m still pretty ambivalent about the question of G”d taking an active role in our lives and in our universe. That goes along, quite nicely, with my own ambivalence about G”d and what G”d is, or if there is a concept of G”d t,hat I can fully embrace, absent some evidence beyond mere faith. Of course, even in this, I vacillate. At some times, I am absolutely certain that G”d exists. At other times, I am less concerned with G”d’s actual existence and more with simply maintaining my own faith, and seeing if it is possible to separate one from the other. And yes, there are moments when I question both the existence of G”d, and my own ability/desire/need to even wrestle with this question.

Absent belief and faith, some suggest, ritual is meaningless and pointless. I beg to differ. Sometimes, for me, the ritual is what it’s all about (that, and the hokey-pokey, of course.) Sometimes, the ritual is the only thing allowing me to even hold open the mere possibility of faith and belief. I sometimes wonder if the ritual is one of the tools used by G”d in the process of opening my heart/our hearts. There are still other times when I believe with as near perfect faith as I can.

When I first wrote what I wrote back in 1997, I was in a place where I was able to willingly embrace the idea that G”d could, in the very height of doubts,open our hearts. Just so happens that this year I’m in a different place. Being in that place may cloud my ability to see and feel G”d’s presence. At first I thought this might be like the person in the old joke who prayed to G”d for rescue, but who, when he complained to G”d, was reminded he overlooked the two boats and a helicopter that came to rescue him. Then I wondered if that was  a good comparison. In my present state, I would climb into the first rescue boat. I just still wouldn’t recognize it as an answer to my prayers. I wonder which is better or worse? Praying for relief and ignoring the help that comes, or praying for relief, getting it, and not seeing it for the answer it was? In some ways, they are two sides of the same coin. In one, I am blinded by my faith, in the other, I am blinded by my lack of faith.

In what I wrote in 1997, I had some of that “pray to G”d but row towards shore” attitude. reminding us to find a way to make it easier for G”d to open our hearts by starting the process ourselves. This year, I feel that way even more.

Yet something is still missing. These words from our parasha, taken out of context, might seem meant to tell us that at the very bottom of our existence, when, for our transgressions, we have been reduced to the lowest of states, then G”d will open our hearts so that we can again love G”d. That’s not the case. This is after not after the fall, but after the restoration, when the exiles have all been ingathered. We are returned to the promised land and we follow G”d’s commandments. We will prosper, and all the evil the befell us will befall our foes. The section concludes:

כִּי ׀ יָשׁוּב יְהֹוָה לָשׂוּשׂ עָלֶיךָ לְטוֹב כַּֽאֲשֶׁר־שָׂשׂ עַל־אֲבֹתֶֽיךָ: כִּי תִשְׁמַע בְּקוֹל יְהוָֹה אֱלֹהֶיךָ לִשְׁמֹר מִצְוֹתָיו וְחֻקֹּתָיו הַכְּתוּבָה בְּסֵפֶר הַתּוֹרָה הַזֶּה כִּי תָשׁוּב אֶל־יְהוָֹה אֱלֹהֶיךָ בְּכָל־לְבָֽבְךָ וּבְכָל־נַפְשֶֽׁךָ:

For the L”rd will again delight in your well-being, as G”d did in that of your fathers, since you will be heeding the L”rd your G”d and keeping g”d;’s commandments and laws that are recorded in this book of the teaching—once you return to the L”rd your G”d with all your heart and soul. (Deut 30:9b-10)

Huh? Is it not a foregone conclusion that we will return to G”d with all our heart and soul? Isn’t that what is says at the beginning in 30:6?

Ah, now I see it. We’re misreading it. It doesn’t say G”d will make us love G”d. It says that G”d will open our hearts to love of Ad”nai. It’s still up to us to do the loving.

What I find most interesting is that this passage is followed by the famous “lo bashamayim hi” (Deut. 30:11-14) telling us that Torah is not in heaven, but in our mouths and hearts, and we are fully capable of understanding it. I’m going to go out on a limb here and suggest that this means it sort of becomes up to us to figure out what it means to love G”d with all our heart and soul. In the following verses were are told that G”d commands us to love G”d, and to choose life and prosperity, for if we choose the other way, there is but death and adversity. (Shades of last week’s thoughts on negative reinforcement.) We choose life by choosing to love G”d (and by following G”d’s commandments-there’s always a catch…)

So I’m not sitting around waiting for G”d to open my heart to love G”d. I’m going to do whatever it takes – acting through faith, or simply through ritual, to get to the place where I can love G”d with all my heart and soul.  Join me in the journey.

Shabbat Shalom,

Adrian

© 2013 (portions © 1998) by Adrian A. Durlester

Other musings on this parasha:

Nitzavim 5772 - Where or When?
Nitzavim/Vayeilekh 5770 - Flawed, Schmawed
Nitzavim/Vayeilekh 5769 - Disconencting the Reconnecting the Dots
Vayeilekh_Shabbat Shuvah 5769 - Cows and Roses
Nitzavim/Vayeilekh 5766 - Keep Looking
Vayelekh 5765-The Time Is Still Now
Nitzavim 5765-To Lo Or Not To Lo
Nitzavim/Vayelekh 5763-Connect the Dots
Nitzavim 5757/5759/5764-Lo Bashamayim Hi
Nitzavim 5758-Not By Ourselves
Nitzavim/Vayelekh 5760/67-L'eyd B'vnei Yisrael-The Real Denouement
Nitzavim 5761 was the week of Sept. 11, 2001. There was no Musing.

 

Friday, August 23, 2013

Random Musing Before Shabbat–Ki Tavo 5773–Catalog of Calamities (Redux & Revised 5760)

(to the tune of "Tiptoe thru the Tulips") 

"Tiptoe, through Ki Tavo.
Don't read loudly,
Lest the curses that we
Read will all come true and bring doom.

When you're called to read it,
they won't even call you by your real name
Tiptoe through Ki Tavo’s great gloom.

Curses,
They’re really a lot
Curses weren’t all that we got
so rush them!

Tiptoe, through Ki Tavo
All the curse words
add up to six-two-six
which equals the words "evil stuff."

It is the custom in many places to read quietly and quickly through the voluminous curses in parashat Ki Tavo. G”d forbid such horrors should befall us. That's us, our modern sensibilities. Avoid anything unpleasant. And for certain don't let the little kinder hear about all this.

Our tradition teaches us that not one single word, not one little jot or tittle in our Torah is there by accident. Yet we avoid this particular set of verses, all 626 words (which, the mystics tell us, is the numerical equivalent of ra-ot, evilness or evil things) like the plagues, these curses, and other unpleasant things. We tiptoe quickly and quietly through Ki Tavo, so we won't wake up the demons waiting to devour us at a moment's notice. Ah, superstition.

Now, I must admit, in all honesty, that the language and imagery of these curses is pretty strong, and some of it is not particularly suitable for young minds. For that matter, some isn't particularly suitable for old minds. Yet we are clearly instructed to diligently teach these laws, our holy Torah, to our children. If we expunge all the awfulness out of the curses, does their message really come through? I sometimes wonder about that.

Only decades separate us from the Shoah, yet already there are voices raised, from both without and within the Jewish community: enough already. (Sometimes, one of those voices is even mine.) There are debates raging as to whether graphic depictions of the horrors of the Shoah are necessary as an educational tool and deterrent.

Well, to both parashat Ki Tavo and to graphic depictions of the horrors of the Shoah I say: bring 'em on. Weaken the words of the Torah and you weaken the strength of the Jewish people. Speak them truthfully, and you save the Jewish people.

Now, I'm not advocating going out and reading (and translating) all 626 words in clear language to young children. But I also don't think it's enough to say something that glosses over the reality like: "well, there's a whole lot of really nasty and bad stuff in there that says what might happen to the Israelites if they don't follow G”d's mitzvot." Somewhere between that and a word for word translation of D'varim 28:53 (you can look it up on your own) is called for. Enough to make anyone hearing these words understand their great import, and the strong warning message they send.

When you read these curses, when you hear them read in the synagogue, they may fill you with revulsion. They may trouble you. Why must we always view that as bad for us?

I think another reason we fear these words is that many of us, perhaps far too many, believe that these calamities have already befallen us for our centuries of being a stubborn, intransigent and disobeying people. Even in our own time, protectors of the faith (like some ridiculously outspoken chief rabbis in Israel) have suggested that the failure of Jews, and especially liberal Jews, to strictly adhere to the rabbinical interpretation of the commandments (a power the rabbis usurped from ha-am, defining “lo bashamayim hi” to include only those as learned as themselves with trickery like the story of the oven at Akhnai) is responsible for the evil things that befall us (or will befall us.)

I believe this is a misinterpretation. If the curses of Ki Tavo seem strong in our own time, imagine how much stronger they would have been to our ancestors. The implication is that some pretty bad stuff is going to happen to you if you don't remain faithful to G”d and follow G”d's commandments. Well yes, some pretty bad stuff has happened to us, but we are still here, and still stubbornly intransigent and disobedient. From the strength of the curses in Ki Tavo, I imagine our fate would have been even worse were we totally without redemptive value! For does not verse 20 say that we will be totally eliminated, wiped out, as it were?

I think Samson Raphael Hirsch got it right when he spoke of how to handle the curses of Ki Tavo. He reminds us that all these curses are conditional, and that this ultimate catastrophe would not come without complete and total failure of every Jew to uphold the commandments-and this, he says, has not yet been the case. To expand upon this interpretation, even Jews who do not follow most of the mitzvot can an do follow some of them, and these righteous acts count. Righteous acts always count, and repentance is always possible.

Perhaps in this lies the value of teaching even these most troubling of verses to our children, to our congregants, to everyone. For if there is to forever be a remnant whose piety sustains the whole of the Jewish people, it is up to all of us to insure it. (Fact of the matter is, I believe the “remnant” is much larger than we think it is, because it does include not only the extremely pious, but those who practice piety of any kind. ) Perhaps one way we can do this is to embrace the difficult words of Ki Tavo, teaching our children that they must be forever on guard to follow G”d's way and G”d's commandments, lest these horrible fates and perhaps even worse ones befall the entire Jewish people, wiping us off the face of the earth. I’m not entirely sure I like or favor this carrot and stick approach, yet I find it is far too easy for liberal Jews (and perhaps for any Jew) to think that the universe doesn’t work this way, that G”d doesn’t mete out punishment for our failures to uphold the commandment – the Shoah was the work of human, not G”d. If I rant against the chief rabbis making these equivalencies, then how can I myself endorse the concept that is at their base?

Negativity and fear, say many, are not good motivators (or, at least, not really healthy ones to use.) I'm not totally convinced of this, I think there are times and places where negative reinforcement can be useful, but I'll accept the basic premise that positive reinforcement is probably a superior methodology. So how can I advocate using the curses of Ki Tavo as a motivator? It is because the fear they motivate, as I see it, is not that of one human fearing for their own self, but rather humans fearing for other humans, for the whole Jewish people, the whole world. And that, chaverim, is love. To love others so much that you fear for their future is a love worthy of our covenant. Could there be a more positive motivator than that?

Could the Shoah have been prevented by the use of only positive reinforcement to convince Hitler and his minions? It’s a big topic, whether war can ever be an instrument of good. Might for right, as our fanciful retellings of the Arthurian legends suggest. Might for right is surely ethically superior to might is right, however is using might for right still a situational, gray concept? On a smaller, more local level, is , corporal punishment, physical punishment for children ethically acceptable? Are negative reinforcers like speeding tickets and other fines ethical? Do they actually work?

Think about it. Admit it. Negative reinforcers do work. You’re exceeding the speed limit and you see a police car by the side of the road. You slow down, don’t you, to avoid the potential penalty? Why, even if you are a driver who typically drives over the speed limit, don’t you adjust your speed relative to the posted speed limit? Despite the common belief, most people don’t really cheat on their taxes – some perhaps motivated by positive morality, other motivated by the fear of an audit. Not all of us ignore walk/don’t walk signs – some motivated by safety an others for fear of a jaywalking ticket. Most of us feed the parking meter not because we feel it’s fair to have to pay to park, but because we fear getting a ticket!

Throughout our lives, in many aspects of our lives, we are motivated to do or not do things by a system of rewards an consequences. Yes, teachers are learning that positive reinforcers can be just as, if not more effective than negative ones, yet negative reinforcement still remains a key part of the system in all but the most radical of human environments.

Now, not all forms of negative reinforcement work. Our penal system is an example of that, as is capital punishment. G”d’s form of negative reinforcement in the Torah doesn’t seem to have proved particularly effective.

I’d like to believe that there is a difference between G”d’s motivations and human motivations when it comes to negative reinforcement, but I’m not sure that’s really the case. For one thing, much human negative reinforcement is motivated by the most positive of desires – that of a civil society. The penal system was meant to be rehabilitative, it just hasn’t really worked that way for many reasons.  For another thing, and here I’m being potentially apostate, we can’t be entirely sure that G”d’s motivations for negative reinforcement are always based on positive desires any more than we can assume that about humans. That’s the price we pay for using ineffability when it comes to explaining G”d. A G”d that, at least according to the Torah, can be swayed by appeals to vanity and public image must be at least suspect in this regard. A G”d that wreaks havoc upon its creations with sometimes seemingly random motivations is suspect.

So here I am, talking myself in circles. Using negative reinforcement might not always be so bad because G”d uses them, sometimes with good motivations. Yet G”d may also use negative reinforcement at times for all the wrong reasons, and clearly humans do both as well.

It all boils down, as it often does, to intent. If my intent in exposing us to the negative reinforcement of the curses in Ki Tavo is to help make a better Judaism, and ultimately a better world, perhaps it is okay. Perhaps.

So I come back to where I ended this musing the first time I wrote it back in 2000, though with some modifications. To love others so much that you fear for their future is a love worthy of our covenant. Could there be a more positive motivator for exposing them to negative reinforcements than that?

Shabbat Shalom,

Adrian

©  2013 (portions ©2000) by Adrian A. Durlester

Other musings on this parasha:

Ki Tavo 5772 - Mi Yitein Erev? Mi Yitein Boker?
Ki Tavo 5771 - Curse 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, August 16, 2013

Random Musing Before Shabbat–Ki Teitzei 5773-Be True To Who You Are

Dark, Light. Day, night. Oceans, dry land. Pure, impure. Permitted, not permitted. Heaven, earth. Good inclination, evil inclination. Man, woman. I thought I had finally figured it out – that in a system built upon these, it is not entirely surprising to find this:

 לֹא־יִֽהְיֶה כְלִי־גֶבֶר עַל־אִשָּׁה וְלֹֽא־יִלְבַּשׁ גֶּבֶר שִׂמְלַת אִשָּׁה כִּי תֽוֹעֲבַת יְהוָֹה אֱלֹהֶיךָ כָּל־עֹשֵׂה אֵֽלֶּה

There shall not be the implements of a man upon a woman and a man shall not wear the garment of a woman because all who do this are an abomination to Ad”nai your G”d. (Deut. 22:5)

How interesting that just the other day, while catching up on some recorded TV shows, I watched an episode of Major Crimes (the successor to The Closer) that centered on the murder of a child with gender dysphoria. I missed it when it was originally aired back in mid-July, but I knew then it was likely to be a powerful episode. I remember TNT touting how cast members would be live Tweeting during the broadcast.

I cannot rationalize away the words from Torah above. It may be that I have no choice but to reject them outright. So today I muse about how I can deal with this problematic verse. I have known and taught students with gender dysphoria in both synagogue and day school settings. I accept their statement of “I am what I am.”

I have heard these students echo words similar to those the writers of the “Boys Will Be Boys” episode chose to attribute to the victim at an early age that “G”d has made a mistake, and put me in the wrong body.”

Spoiler alert, if you haven’t seen it. In the episode, that father appeared to embrace his child’s choice to be female rather than male, while the mother felt that the father was indulging a phase the child might outgrow. The older brother appeared, initially, to be as supportive and understanding as the father. The plot took some wonderful twists and turns, focusing first on a bully who posted a video of himself and some friends mocking and “pantsing” the child,clearly dressed as a female, and exposing his male genitalia in a mall ladies room. Then the focus turned on the father, who couldn’t properly account for his whereabouts and some financial transactions. Turns out, however, that the father had been making arrangements for he and his child to live elsewhere and start the child on hormone treatments to facilitate the child’s need to be female. Next suspicion turned on the mother, who had not been supportive of her youngest child’s choices and her husband’s support of them. In the end it turned out the mother was protecting her older son, who, when he learned that his father and sister were going to move out on their own, killed his sibling in a fit of rage over how this would destroy his family and jealousy of how his sister was always the focus of attention for the family. (The portrayal of this brother as jealous and angry is so eloquently balanced by how he so lovingly refers to his sibling as his sister, and appears to be so supportive, and generally in agreement with his father. Add to that the irony of his mother trying to protect him from being found out as his sibling’s killer. Brilliant writing. )

On a superficial level, it would almost be easy to read into this story a cautionary tale that almost seems to support the biblical injunction. The child’s attempt (and father’s support) to deal with his gender dysphoria by allowing the child to dress as a female is what ultimately led to the child’s death. One of the final scenes, however, does a little blame shifting. In it, one of the detectives confronts the bully, telling him that is was his bigotry, and his shameless and insensitive act that really destroyed this family and led to the death of the child. There’s a lesson for all of us in that.

If only the writers of Major Crimes had written this verse of the Torah, things might be a little different.

Coming to an understanding that this verse reflects our ancestral understanding of the universe as comprised of balancing opposites (or forces) which also led to many prohibitions about mixing things together (which also appear in this parasha and elsewhere) turns out to not be particularly helpful to me. In fact, it leaves me with quite a quandary. If Judaism is so largely predicated on these paired opposites (or balancing forces, or whatever you want to call them) and this verse is so patently wrong, what does that say about all those pairings? Are they wrong too?

If the boundaries between male and female gender can be blurred, it stands to reason that other boundaries can be the same. But wait a minute. This IS the reality of our universe. It is fraught with liminality. Consider twilight, or the swamp. Situational ethics. Good coming from evil (and vice versa.) G”d appears to have both male and female aspects, and somewhere in G”d those must meet and overlap or blend. Human beings do have both male and female characteristics within them. So why should it surprise us that in some people, the dominant physical shell doesn’t match the dominant brain?

If we accept the fact that there are people born in this world who were truly placed in the body type of the wrong gender, then it would not be an abomination for that person to wear clothes of the gender that they knew themselves to be. That sort of works for me, but then raises the question of why G”d would create people with gender dysphoria in the first place. Perhaps to remind us that boundaries and divisions are not always so clear?

Our ancestors tried so hard to see the universe in clear, almost black and white terms. Yet even in their own times, those efforts were hampered by the realities. I sometimes think that the very existence of the concept of “exceptions” exists because it was our only way of dealing with the fact that the real universe didn’t work in the simplistic way we wanted it to work. We still have this tendency, this desire, to see things as black or white, either or, good or evil, male or female, etc.Yet in almost each and every second of our lives the futility of this desire is thrown back in our faces. Everything is in shades of gray.

It seems logical to assume that if the Torah say cross-dressing is prohibited, that there were people doing it back then! Gender dysphoria is as old as we are. I think our ancestors knew this in their hearts. It may be why G”d didn’t create Adam and Chava each independently from the earth. The Torah says woman was made from man. (That it was this way around and not the other we need only to chalk up to the misogynism of the redactors.) Think of it not that woman was made from man, but that woman and man are from the same source. There’s a little man and woman in each of us.

So I recognize my own failing here. I argued and tried to see pairings that Torah tries to show us as opposites, as existing in a  black and white state, and that if one example is wrong, they all are! How not true. How inaccurate. How foolish. I know, and have known for a long time, and have written it many times here and elsewhere, that  Judaism is not about opposites, it is about balance, or rather finding a balance between forces/ideas/inclinations.

If I, thousands of years later, still fall into the same trap, I should be more understanding of my ancestors. I should also have greater faith in their ability to be nuanced.

We resisted for centuries having our ancient teachings codified by placing them in written form. In the process, they did lose some of their flexibility – but not as much as we might have feared. Words are slippery things, as liminal as anything in this universe.

Being themselves liminal, we can look beyond the words, bleeding across boundaries and resistant to being given completely clear meaning in all circumstances. Perhaps our ancestors, too, were sophisticated enough to read this verse the way I have now come to understand it: that what is says to be true to who you are.

Shabbat Shalom

Adrian
©2013 by Adrian A. Durlester

Other musings on this parasha:

Ki Teitzei 5772 - The Torah, the Gold Watch, and Another Retelling
Ki Teitzei 5771 -  Metaphorical Parapets
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, August 9, 2013

Random Musing Before Shabbat–Shoftim 5773–Revisiting Hassagat G’vul Yet Again

It was seven years ago that I wrote the original 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. I revised it again just two years ago. Nevertheless, 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 and 2 years ago with more modifications and additions.)

לֹא תַסִּיג גְּבוּל רֵֽעֲךָ אֲשֶׁר גָּֽבְלוּ רִֽאשֹׁנִים בְּנַֽחֲלָֽתְךָ אֲשֶׁר תִּנְחַל בָּאָרֶץ אֲשֶׁר יְהוָֹה אֱלֹהֶיךָ נֹתֵן לְךָ לְרִשְׁתָּֽהּ

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.

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 to discuss in other parts of this parasha (and in particular the verses that follow soon after, regarding the requirements for witnesses in a legal proceeding) but I want to focus on this verse, which is, for practical purposes, the basis of an entire class of ethics and what eventually came to be both Judaic and civil law.

From this fairly straightforward verse in Torah, the rabbis constructed an entire class of laws referred to as 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 (Bava Batra 21b) has a great example of how this concept was extrapolated into halacha 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 2.4 miles!) This concept was then applied to competing merchants and stores.

The concept of hassagat g'vul, moving boundaries, was eventually extended to the concept of fair and unfair competition. There isn’t general agreement among the rabbis on this, and it is difficult, without reviewing centuries of additional comments, rulings, etc. to derive a definitive position just on the basis on this Talmudic passage. There is no shortage of further writings on the subject, and to this day the debate continues. Rabbinic courts and poskim seem to be dealing with issues of unfair competition on a regular basis. While each ruling establishes precedent, the rulings really are all over the place, except in a few fundamental areas. Clearly situational decision-making has been utilized.

In any case, from the concept of protection from unfair competition it’s but a short hop to becoming 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 machzorim (festival/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 editor had put into his 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 patent and copyright holders (and in particular, 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, Amazon, Rhapsody, iTunes, YouTube, Pandora, et al. Decades of copyright laws, and centuries of tradition seem to have outlived their usefulness. The culture is changing, and more and more people are seeing copyright as antiquated, protectionist, and unnecessary. Respect for intellectual property is at an all-time low. There is also a strong anti-copyright movement that sees the concept as antiquated and stifling of creativity, particularly in areas like music, open-source software, videos, and more.

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. (Not all Jewish artists are dependent on their music as their sole source of income, but you’d be surprised how many really are, or at the very least, dependent on multiple sources of income from creative and intellectual work all centered around the Jewish world.

Yes, I've been an educator who runs a religious school, 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. So I am sensitive to many "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 must also keep in mind the Jewish principle of dina d’malkhuta dina, the law of the land is the law (meaning that Jews are obligated to follow the laws of the countries in which they reside.).

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, on your own paper and equipment, your own copies of music, books, etc. from PDF files. Digital rights management systems 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 a congregational gathering rather than simply renting it from the local Blockbuster and showing it. (This sentence clearly dates the original version of this musing.) By doing so, I just might help insure that the creative minds behind "Paperclips" continue to create films like that.

U.S. Copyright has has basically only one specific provision in it related to religious institutions, that permits the performance (and that means performance only, it does not include recording, video-taping, live-streaming, projecting lyrics, putting lyrics in service booklets or on song sheets) of a work written specifically for use in worship in a bona-fide worship setting (which would not include say, a youth group meeting, a fund-raiser, a concert, etc.) without require any permission from the copyright holder. That’s it. You can perform it/sing it at services. Everything else is a protected use.

Some synagogue usage might pass some of the four tests for “fair use,”

  • the purpose and character of your use
  • the nature of the copyrighted work
  • the amount and substantiality of the portion taken, and
  • the effect of the use upon the potential market
  • but fair use is generally meant for journalism, criticism, parody, and education. Just because a synagogue is not-for-profit doesn’t mean it is automatically entitled to greater freedom in using copyrighted works.  

    Maybe it's not fair, but under existing U.S. Copyright law, it is not at all clear if supplementary religious schools 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 and accredited Early Childhood programs would qualify, however.) Maybe that's something we ought to lobby Congress to change. 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 paying some kind of license fee. And we shouldn't be using photocopies of entire textbooks, or illegally copied CDs, mp3s, DVDs, etc. We shouldn’t be live-streaming our services with the necessary permissions.

    Therein lies the rub. Copyright law prohibits (or could be interpreted as prohibiting) or requires licensing/permissions for things that seem like they ought to be permitted, like live-streaming services, projecting lyrics to songs at services, putting a recording of the cantor singing songs typically used at services online. A particularly egregious example is that copyright law would most likely prohibit a choir from making enlarged photocopies of printed music to enable older choir members with poor vision to see the music more clearly.

    Yes, common sense is required. Noted Jewish educator, author and lecturer Joel Grishaver, in his "meseket photocopy" (maseket 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."

    Increasingly, there are newer ways to look at these issues, and I must say that, in all honesty, my feelings on this issues, about which I am very passionate, seem to undergo regular changes. Some simply want us to modify existing copyright law. Other want copyright eliminated. Others are seeking new models for both artist, consumer, and provider/publisher.

    Artists like Amanda Palmer (AFP to her fans, who know what the F stands for) are exploring exciting new models. In her now well-known TED talk she advocates for an approach that is best summed up as “don't make people pay for music, let them.” Her “pay what you want” model, along with her stance against the star system, and willingness to be as collaborative as possible may point the way to the future for those in the arts. It doesn’t directly address the issue of copyright and intellectual property, but it would certainly require a whole new way of dealing with that.

    Organizations like Creative Commons (of which, I am proud to say, I am an original first year member) are seeking to find fair approaches against the sometimes Draconian and often inscrutable copyright law. As their own mission statement says: “Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.” Creative Commons does advocate for some changes in copyright law, but also facilitates ways to work within the law and still allow easier sharing, collaboration, partnering, and licensing.

    The Future of Music Coalition “is a national nonprofit organization that works to ensure a diverse musical culture where artists flourish, are compensated fairly for their work, and where fans can find the music they want.” FMC, in particular is focused on the individual artists, who are often left out of the debate, which is most often between the digital media giants and the recording industry. Don’t blame the artists when you rail against either copyright, or a music industry giant like SONY or a streaming service like Spotify, both of those have their own interests at heart – it’s not generally the artists who are at the root of the problem (though sometimes, artists do get greedy.That’s why people like AFP are so against the “star system.”) Artists want to make it easy for you to get their music, for a fair price. Copyright law, and the legal machinations of the industry are what really stand in the way.

    I am known as a bit of a stickler for observing copyright law as it exists, and for erring on the side of “it’s probably not legal” if it’s not specifically permitted. I’ve worked tirelessly for years trying to educate the Jewish world about copyright, and yet I encounter almost every day people who are openly violating copyright, and people who are blissfully unaware they are violating copyright routinely. Lots of synagogues are now live-streaming services, projecting lyrics, putting their own audio and video online. Most of this is probably in violation of extant copyright law. I am surprised by how many organizations, once told that this is what the copyright law says, continue to break it, usually justifying it to themselves as “lashem shamayim.” At this time of year, how many synagogue choirs are using illegally photocopied music? We ought to add that to the list of al chets we say. I’ll be first to admit that I believe copyright law should be modified to permit religious institutions greater leeway. That being said, Torah is pretty explicit that one must atone for both advertent and inadvertent sins, and particularly so once they have been made aware of their having sinned.

    The American church community, which was the target of the music industry in the previous decades (especially with the advent of mega-churches where the lines between religious and other social/entertainment activities is often blurred) has largely cleaned up their act. This was accomplished by the creation of licensing agencies and clearinghouses.  I am working with others in the Jewish community on creating this same sort of structure in the Jewish world, and, G”d willing, someday it will happen. Even if copyright law is modified to grant greater freedom to religious institutions (which, given how our constitution is framed may be a difficult thing to accomplish) there will still be a need to connect artists and institutions for licensing, permission, etc.

    The artists need to be part of the conversation. Quite frankly, when asked for permission to do things like use their lyrics on songsheets, projections, service bulletins, etc. most of the Jewish artists I know would willingly grant permission. Many would gladly permit other artists to cover their songs on their own recording without paying the compulsory mechanical licensing fee. (Legally, once a song has been recorded and sold by the copyright holders, the copyright holder cannot prevent others from making their own recordings of the song to sell, providing they pay a statutory fee based on various factors.)

    We need to find ways to leverage things like Creative Commons so that those writing music for the Jewish community can permit wider use of their music. We also need to find ways to insure that the people creating this music can earn a living. Im ein kemakh, ein Torah (the rest of the quote is already amply demonstrated by those who do write the music simply by the fact they are writing Jewish religious music…)

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

    http://en.wikipedia.org/wiki/Fair_use

    This section is great: http://en.wikipedia.org/wiki/Fair_use#Common_misunderstandings

    Here’s 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, web sites, libraries, choir music, etc. 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 http://www.havanashira.org/copyright.htm

    Shabbat Shalom,

    Adrian

    ©2012 (portions ©2011, 2006) by Adrian A. Durlester

    Other musings on this parasha:

    Shoftim 5772 - Quis Custodiet Ipso Custodes
    Shoftim 5771 -  Hassagat G'vul Revisited
    Shoftim 5767 (Redux and Updated 5760/61) From Defective to Greatest
    Shoftim 5765/5759-Whose Justice?
    Shoftim 5763—Pursuit

     

    Friday, August 2, 2013

    Random Musing Before Shabbat – Re’eh 5773 –Here’s a Tip (Revised “Our Own Gifts” from 5761)

    At the end of Re'eh, we read:

    וְלֹ֧א יֵֽרָאֶ֛ה אֶת־פְּנֵ֥י יְהוָֹ֖ה רֵיקָֽם: אִישׁ כְּמַתְּנַת יָדוֹ כְּבִרְכַּת יְהוָֹה אֱלֹהֶיךָ אֲשֶׁר נָֽתַן־לָֽךְ

    "They shall not appear before the Lord empty-handed, (17 but each with his own gift, according to the blessing that the Lord your God has bestowed upon you." (JPS)

    The context of these words is the commandment that three times a year, on Pesach, Shavuot, and Sukkot, all the (males) shall appear before G"d at the designated place (which eventually meant the holy Temple in Jerusalem.) It is not simply enough that they appear-they must also bring a gift. Yet, even in that agrarian society, and even though the Torah in other places is rather specific about gifts and sacrifices to be presented, in this place it simply says "each with his own gift, according to the blessing that the Lord your God has bestowed upon you."

    That's pretty trusting-allowing us each to individually assess how G"d has blessed us, and present a gift commensurate with that amount. By what scale are we to judge? If this year's crop was 50% better than last year's crop, do we up our "gift" by 50%? But what if this year that crop did worse, but another crop did better? Do we adjust our gift accordingly? In a year of blight when no crops were successful, what gift do we bring? Is our mere presence, having survived the blight, enough to thank G"d for that very survival? Does the silversmith bring silver, the baker bread, the hunter some of his prey? Does an apparently infertile couple that miraculously has a child bring the child as a gift? (Let's not get in to the question of the akedah just now, OK?) Does G"d want money? Praise? Sacrifices? Is that what this is all about? Is this how we are to measure the gifts bestowed upon us?

    Do we apply some “tipping ettiquette” here? Though it seems we can’t all agree on how much (or even when) to tip someone (server, waiter, valet, taxi driver, service person, etc.) there are at least some situations where tipping is de rigueur. Waiters and certain others are dependent on their tips as part of their wages, and most (though not all) members of society, understanding this, try to tip fairly. (There are still many who operate from the philosophy of not rewarding anyone for doing what it is they are paid to do – and I include some bosses in this category. I find this a particularly heartless attitude, and even more so when applied to people who, through no fault of their own, work in an industry that underpays them and expects clients to make up the difference through tipping.) It is easy to make an argument that the whole idea of tipping, and occupations that depend upon it, are just plain wrong, and we should restructure society so that every person can earn enough without relying upon tips as anything other than as a supplement, a reward for extra hard work. Yes, it seems odd to apply the whole idea of tipping to thanking G”d, but there you have it. Through our behaviors and our failures, we surely make things harder for G”d, so maybe G”d is truly deserving of our “tips?”  Tips are a way of saying thank you, and if you really think about it, a tithe isn’t much different than when a restaurant adds the gratuity into the bill, is it? This whole idea, of thinking of our gifts to G”d as tips is fascinating, and I could go on at length about it, but it does feel a little awkward, so I won’t pursue it at this time. Though I will be thinking about it.

    So back to the topic at hand. Even today, without the holy Temple, how do we offer these gifts, and which gifts do we offer? Shall a singer offer song, a poet a poem, a good cook a delicious dish? Would it be appropriate for someone not blessed with a good voice to offer a gift of song, or someone not a good cook to offer a gift of food? The obvious answer would be yes, for ultimately only we ourselves know what things in our lives appear to be blessings bestowed upon us. And the concepts of good voice and good food are somewhat subjective.

    Many of us offer our gifts to G"d through our gifts and services to our community. If G"d has blessed you with a beautiful voice, then why not make a gift of song to G"d? All over the world people do that every day-cantors, soloists, choir members, songleaders. If G"d has blessed you with the skills of a teacher, then teaching in religious school can be your gift. Are you a computer nerd? Offer your gift to G"d through service to your congregation's web presence.

    But directly returning a gift of the blessing G"d has bestowed is not the only way. The text doesn't say "give back as a gift to G"d some of exactly that which G"d has blessed you with." No, it says "according the blessing that G"d has bestowed upon you." What if the blessing G"d gave you was sparing your life in a dangerous situation? Would you repay with your life? And how could you spare G"d's life? (well, actually, there is some possibility here. Some maintain G”d’s continued existence is dependent upon us, as in the quote "if you are my witnesses, then I am G"d, and if you are not my witnesses then I am not G"d" found in Gates of Repentance, the Reform HH makhzor, and attributed to a former chief rabbi of Great Britain. So, in a way, by being faithful to the covenant, you might be insuring G"d's survival. Hmmm.) And we can complicate this situation. What if the blessing is that your life was spared, but in the process hundreds of others died, or perhaps even close relatives were killed? If our gift is to be "according to the blessing bestowed..."

    What about the someone who, in subjective opinion, is not blessed with a good voice, but feels blessed to be able to sing? Then surely their gift of song would be welcomed by G"d.

    I think there are many ways we can offer gifts to G"d in return for the blessings bestowed upon us. And they need not be quid pro quo. Every time we observe a mitzvah, that is a gift to G"d. Every time we offer G"d praise and thanks, those are gifts. Every time we remember G”d, even question G”d, or get angry with G”d, by merely acknowledging G”d’s presence and involvement in our lives, we are giving G”d a gift.

    But here's the catch. As a species, we seem predisposed to not really see many of the blessings, the good things, in our lives. As a result, we're probably rather stingy with the gifts we give to G"d in return. So my challenge to you this Shabbat is to really consider the words "each with his own gift, according to the blessing that the Lord your God has bestowed upon you." Dwell on the blessings in your life. I'll bet you'll discover many you hadn't given much thought to. And the second part of the challenge-to find an appropriate way to offer a gift to G"d according to those blessings. Remember to not appear before G"d "empty-handed,", i.e., without those gifts, however tangible or intangible they may be.

    Shabbat Shalom,

    Adrian

    ©2013, portions ©2001 by Adrian A. Durlester

    Other musings on this parasha:

    Re'eh 5772 - Think Marx, Act Rashi? Think Rashi, Act Marx?
    Re'eh 5771 - Revisiting B'lo L'sav'a
    Re'eh 5770 Meating Urges
    Re'eh 5766-Lo Toseif V'lo Tigra
    Re'eh 5765--Revised 5759-Open Your Hand
    Re'eh 5760/5763--B'lo l'sav'a
    Re'eh 5759--Open Your Hand
    Re'eh 5757/5758--How To Tell Prophet From Profit