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More About “Copyright Infringement”

Dr. Michael Factor is an expert in intellectual property law in Israel. He has a blog in which he writes about cases involving copyright infringement.  He has just read all 92 pages of the recent judgment against me in the Sarah Shapiro case, and has posted his conclusions, which are very favorable to me. Thank you Michael!

Dr. Factor has confirmed what I have believed all along, that I have done nothing wrong, and given me hope that I will ultimately prevail in this case, as I prevailed in the Michal Tal case.

From Dr. Factor’s blog entry:

To find Ragen guilty, Judge Joseph Shapira performed legal gymnastics to have the case admitted at all, since there were strong grounds for dismissing the case altogether under the Statute of Limitations, as seven years had passed since Shapiro became aware of the similarity. He took the position that the ongoing sale of Ragen’s book made copyright infringement an actionable tort on an ongoing basis. Such a position makes some sense if Ragen was selling bootleg copies of Shapiro’s book, but that is not the case here.

Shapiro’s book is a non-fictional, somewhat autobiographical guide to making a marriage work, about adjusting oneself to one’s surroundings. Ragen’s story is about getting out of a situation that’s wrong, about taking control of one’s life. I think that a fair use defense is appropriate. Furthermore, to the extent that Ragen’s work was inspired by Shapiro’s I think that a satire defence is possible – although difficult under Israel Law. We also note that Shapiro did not create the idea of employing a home- help. These have been employed by countless young mothers under stress. (I believe that my mother employed an au-pair when I was a baby. That wasn’t plagiarism either).

I accept that copyright covers all literary work, regardless of quality. A couple of pages of dialogue may therefore by covered by copyright law. Nevertheless, the text in question is not memorable in its own right. We are not discussing a witty aphorism but simply a conversation. My main criticism of the ruling is that it places the bar for literary novelty simply too high. It is bad policy to consider copyright infringement in a case where two pages of dialogue in one book bear a similarity to a couple of pages of dialogue in a different book. This is counter-productive to the aim of copyright law which is to enrich by promoting creativity, not to stifle authors. Koheleth son of David (Ecclesiastes) was right on one level that there is nothing new under the sun. The similarities between Shapiro’s book and Ragen’s novel warrant a footnote in a critical edition of Ragen’s book or an academic paper. Nothing more.

In Jephte’s Daughter, another novel by Ragen, the story relates to the daughter of a Rabbi growing up in New York. When I read it, I was reminded of Chaim Potok’s novel The Chosen. There was a scene where the girl and two of her friends experimented with make up in the girl’s bedroom. This reminded me of a scene in the 1980 hit movie Grease. I have no doubt that Ragen has read the Chosen and seen Grease. Whether these influenced her consciously or not, there is no case of copyright infringement or plagiarism. (Note, I also believe that the Warner Bros character Bugs Bunny was inspired by Groucho Marx, although I’ve never seen any reference to this in print).

It is worth noting that the plagiarism cases against Ragen were filed around the time that Naomi Ragen challenged segregated seating on bus routes serving the ultra-Orthodox community by filing a suit to the Supreme Court on grounds of gender discrimination. A lot of the flack Ragen’s been under for alleged plagiarism seems to be driven by ultra-Orthodox opposition to the position she has taken on this issue which some see as threatening their life-style. Many of her books are sympathetic to some aspects of the ultra-Orthodox lifestyle and critical of other aspects of the same. Some members of the Ultra-Orthodox do not take kindly to criticism, and may find her novels offensive.

In my opinion, as outlined above, this ruling established the facts of the case, but gets the law wrong. I believe it should be reversed on appeal.

The Biblical Sotah from which Ragen plagiarized her title, is discussed in Numbers 5: 11-31. She is a woman accused by her husband of having been inpregnated by another. In a trial by ordeal, the sotah drinks bitter waters, and, if guilty, swells up, and dies. If innocent, she and her husband are able to put this issue behind them and she is blessed with offspring. Ragen may have been impregnated by exposure to Shapiro’s book, but her work is an original literary creation, and is admitted as such by Judge Shapiro. I believe that she deserves to be blessed with (literary) fruit for being wrongfully accused.

To read Dr. Factor’s post, click here.

Dr. Factor also blogged about the Shapiro case back in 2007, saying that:

… Shapiro appears to claim that the odd sentence of Ragen shows similarity to sentences in her book. I would argue that even were Shapiro to prove that Ragen was inspired by her motifs and sentences, well so what? The elements in question are subsidiary to the main plot.

From my familiarity with Israel’s copyright case-law, I can’t see the charges sticking. This may be why the charges are being brought in the Rabbinical Courts and not in the district courts. (Ms Shapiro claims to be bringing the charges in the Rabbinic Courts because she is a Haredi). Regan does not need to accept the jurisdiction of the Rabbinical Courts in this issue and need not agree to arbitration. Furthermore, it is unlikely that the Israel civil courts will uphold a rabbinical ruling on copyright infringement.

I suspect that, inspired by the Dan Brown case heard in the UK recently, Tal and Shapiro believe that they can make easy money on this. Dan Brown was vindicated, see Author of the ‘Da Vinci Code’ Vindicated Again, and I think Ragen will be, at least in the Shapiro case.

In fact, when I refused to appear before a rabbinical court of three dayanim [judges], of whom only one spoke English (though he did promise to “explain everything” to the two English-illiterate judges), Shapiro’s lawyer (Gilad Corinaldi) sent me a letter threatening to sue me for my refusal. Really, what choice did I have? It was in reality a court of only one judge, and as such, according to its own rules, unqualified to hear the case. Moreover, it was very unlikely that I would get a fair hearing in a haredi rabbinical court, given the long-standing hostility of that community towards me.

Shortly afterward, Shapiro obtained permission from the rabbinical court to sue me in the civil court system.

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1 comments on “More About “Copyright Infringement””

  1. Rabbi Fleishig

    So it’s just as I suspected – as soon as Naomi Ragen goes after the segregated buses, the bus segregators go after her. Just shows you to never to mess with those “pious” souls who desperately want everybody to believe they are G-d’s mouthpiece here on earth.

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