Kitnyot of Copyright - Minding the fences around the fences
As I mentioned in my last post, I am in Jerusalem. I write this on the day between the Seder (not the first Seder, as Israel has only one) and Sabbath. While touring Jerusalem, Masada and other areas in Israel, I have been struck by the lessons Torah provides for the topics on which I write. Admittedly, this blog may be one of the more obscure, but bear with me.
On March 20, 2007 the Bet Din or religious court of Machon Shilo issued a religious ruling ending the debate within Israel regarding the consumption of "Kitnyot" which literally means legumes, but has been extended to many oils and foods that extend the prohibition of Passover foods well beyond the biblical prohibition regarding the ownership of leaven during the Passover holiday. (The Hebrew ruling is available here.)
In many ways, the debate regarding kitnyot reminds me of the debate regarding the scope of copyright protection. For at least the past decade, since the passage of the Digital Millennium Copyright Act and the Supreme Court decision in Eldred, copyright academics and lawyers have been at odds regarding the proper fences or boundaries for copyright policy. This was precisely the same debate our rabbinic sages had when they debated the rules for various religious practices.
The sages taught that one should "put a fence around the law" so that a person would not inadvertently violate the law. As a result, Jews are not generally permitted to climb atop the Temple Mount which is home to the Foundation Rock underneath the Dome of the Rock. When the High Temple existed, the "Holy of Holies" - the Ark of the Covenant - sat on the location. Since we cannot know precisely where the spot existed, the law has been that Jews should not go atop the Temple Mount to avoid inadvertently stepping in a forbidden part of the mount. Of course this ruling also serves a political purpose of assuring the Muslim world that the Jewish community has no claim to the Temple Mount and the important Islamic holy places there.
Copyright policy has followed these same rabbinic precepts. First, there is a tendency to put a fence around the law - to protect an author from copyright infringement, the law added rules making it illegal even to disable technological measure to acquire the copyrighted works. This rule is a fence around the copyright law, making it easier to stop the trafficking of "black boxes" for descrambling cable signals and stealing encoded content. Similarly, the interpretation of fair use that allows copyright holders to show the potential market for the work as evidence that the unauthorized use was not a fair use tends to highlight copyright protection for what may be in addition to what already exists. But other rules, such as the extension of the copyright term and increasing civil and criminal penalties tend to be fences around the fences. They do little to protect the core values of copyright and frustrate the public.
The lesson of kitnyot, then, is that it may sometimes be appropriate to put fences around the law, but it is not appropriate to put fences around the fence. Banning beans, rice and a growing list of foods in recent decades had made it difficult for observant Jews to identify the purpose behind the laws, to meet the religious requirements, and to maintain their identity. Such fences may be useful for zealots to prove their fervor, but I expect that they encourage more and more people to throw up their hands and stop obeying all the laws.
The same risk exists with copyright. The RIAA policy of suing individual consumers for copyright infringement as a result of their unauthorized file sharing frustrated the public, even as raised awareness to the risks to the music industry. But with the education came a public backlash that did nothing to help the music industry.
As copyright academics and lawyers, we must strive to find the same common ground as did the Bet Din of Machon Shilo, so that the core legal values of copyright are reinforced to protect authors and artists while also removing those fences that do not serve creators or the public interest. One good example of such an attempt has been the Best Practices guide for documentary filmmakers, which explains fair use well and encourages broadcasters, insurers and filmmakers to use fair use rather than fear the ad hoc nature of the determinations.
More such examples should be highlighted. In such a way, we can tear down the fences that interfere with creativity while maintining those that protect authors and artistic integrity.
For artists, this is another aspect of their freedom and something worth celebrating during Passover.
Hag Sameach.
On March 20, 2007 the Bet Din or religious court of Machon Shilo issued a religious ruling ending the debate within Israel regarding the consumption of "Kitnyot" which literally means legumes, but has been extended to many oils and foods that extend the prohibition of Passover foods well beyond the biblical prohibition regarding the ownership of leaven during the Passover holiday. (The Hebrew ruling is available here.)
In many ways, the debate regarding kitnyot reminds me of the debate regarding the scope of copyright protection. For at least the past decade, since the passage of the Digital Millennium Copyright Act and the Supreme Court decision in Eldred, copyright academics and lawyers have been at odds regarding the proper fences or boundaries for copyright policy. This was precisely the same debate our rabbinic sages had when they debated the rules for various religious practices.
The sages taught that one should "put a fence around the law" so that a person would not inadvertently violate the law. As a result, Jews are not generally permitted to climb atop the Temple Mount which is home to the Foundation Rock underneath the Dome of the Rock. When the High Temple existed, the "Holy of Holies" - the Ark of the Covenant - sat on the location. Since we cannot know precisely where the spot existed, the law has been that Jews should not go atop the Temple Mount to avoid inadvertently stepping in a forbidden part of the mount. Of course this ruling also serves a political purpose of assuring the Muslim world that the Jewish community has no claim to the Temple Mount and the important Islamic holy places there.
Copyright policy has followed these same rabbinic precepts. First, there is a tendency to put a fence around the law - to protect an author from copyright infringement, the law added rules making it illegal even to disable technological measure to acquire the copyrighted works. This rule is a fence around the copyright law, making it easier to stop the trafficking of "black boxes" for descrambling cable signals and stealing encoded content. Similarly, the interpretation of fair use that allows copyright holders to show the potential market for the work as evidence that the unauthorized use was not a fair use tends to highlight copyright protection for what may be in addition to what already exists. But other rules, such as the extension of the copyright term and increasing civil and criminal penalties tend to be fences around the fences. They do little to protect the core values of copyright and frustrate the public.
The lesson of kitnyot, then, is that it may sometimes be appropriate to put fences around the law, but it is not appropriate to put fences around the fence. Banning beans, rice and a growing list of foods in recent decades had made it difficult for observant Jews to identify the purpose behind the laws, to meet the religious requirements, and to maintain their identity. Such fences may be useful for zealots to prove their fervor, but I expect that they encourage more and more people to throw up their hands and stop obeying all the laws.
The same risk exists with copyright. The RIAA policy of suing individual consumers for copyright infringement as a result of their unauthorized file sharing frustrated the public, even as raised awareness to the risks to the music industry. But with the education came a public backlash that did nothing to help the music industry.
As copyright academics and lawyers, we must strive to find the same common ground as did the Bet Din of Machon Shilo, so that the core legal values of copyright are reinforced to protect authors and artists while also removing those fences that do not serve creators or the public interest. One good example of such an attempt has been the Best Practices guide for documentary filmmakers, which explains fair use well and encourages broadcasters, insurers and filmmakers to use fair use rather than fear the ad hoc nature of the determinations.
More such examples should be highlighted. In such a way, we can tear down the fences that interfere with creativity while maintining those that protect authors and artistic integrity.
For artists, this is another aspect of their freedom and something worth celebrating during Passover.
Hag Sameach.
Comments
You have hit the mark. It seems to me it is very excellent thought. Completely with you I will agree.
Posted by: kaballa | September 8, 2009 12:39 PM