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:

    This section is great:

    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

    Shabbat Shalom,


    ©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


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