DRMing the Talmud, Part II

I was recently contacted by a Jewschool reader named Daniel Scheide who was interested in contributing the following piece to the site. It set off an interesting conversation by email that expands upon an earlier discussion here on OA about copyrighting Torah-related texts. I admit that my first response was a little hasty (I’ve been really busy and didn’t get a chance to initially read Daniel’s essay as thoroughly as I should have), but it’s nonetheless a stepping-stone for a greater argument.

Daniel Scheide wrote:

I think I’m getting a little too old to be disappointed in the actions of my favorite musicians. Or for that matter, j-bloggers that I admire. So, what am I talking about? I first discovered Y-Love on Jewschool. I didn’t try out his music right away because; let’s face it, most religious hip-hop (as well as rock, pop, etc.) is not to my taste. But when I started reading his posts on Jewschool and then his own blog, I was intrigued.

So I checked out the tracks on his Myspace page. Jewschool readers are most likely familiar with his work, so I won’t repeat what you already know, but suffice it to say, I was impressed.

Then I purchased the Mixtape, presented by DJ Handler. Y-Love’s rhyming is actually of secondary importance on this recording. This is primarily a DJ Handler production, combining generous portions of old school hip-hop and R&B with Y-Love’s vocals inserted (often incongruously) over the top. The liner notes of Count It, Y-Love’s wonderful a cappella sefirah release, meticulously cited the instances where Y-Love’s lyrics were derived from Talmudic or liturgical quotations, so I looked at the Mixtape to see what samples were used. Nothing.

I emailed Modular Moods about this. DJ Handler told me that the disc was ‘in the tradition of mixtapes.’ He declined to answer my question as to whether or not the artists he sampled gave permission for their work to be used or whether or not they were compensated for this use. It is absolutely true that this practice is in the tradition of the mixtape. However, it is certainly not a part of the tradition of Torah and (le-havdil) American law.

While there is a mahloket on whether or not there is a concept of intellectual property in Halakhah, (two great introductions to the topic can be found here and here), I feel the point is moot for two reasons. First of all, there is the concept of dina de-malkhuta dina, the law of the government is binding law. Also, with the prevalence of such disgusting stereotypes as the thieving Jew, do we really want to be saying that our laws of theft are more permissive that those of the state? Do we want to say that the ethics of religious Jewish musicians are to be held to a more lenient standard than your average rock star or hip-hop artist?

Unfortunately, there is a small element of anti-Semitism in the world of hip-hop. (I think that some exaggerate the extent of this problem, but that’s another story). In some of these cases, the source of the problem has been the perception (accurate or not) of a Jewish manager taking advantage of the artist. Is this a ‘tradition’ we want to continue?

The 6th Circuit Court of Appeals in Cincinnati stated the following: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

I disagree with that assessment. If an artist cannot obtain the legal rights to use the sample that he or she feels is most appropriate for their work, or decides that it is cost-prohibitive to use it, then the work is necessarily changed. So yes, creativity is impacted. But creativity is also impacted by refraining from performing or writing on Shabbat. Female singers who choose not to perform for men are limiting their audiences to keep the mitzvah of kol ishah.

Now, I realize that not all of us accept the validity of halakhah. And those of us that do, have differing ways of doing so. I’m not expecting people to follow all 613 mitsvot perfectly. I certainly don’t claim to do so myself. But then again, I don’t make my living presenting myself as a spokesperson for Torah-true Judaism. And it’s not as if I caught an obviously frum individual eating treif, which is an averah, or engaging in corrupt business practices, which is both an averah and a hilul Ha-Shem. Y-Love and DJ Handler are not only making music as an artistic endeavor and to make money, but they are doing so to perform kiruv, using their music as a means to bring others closer to Judaism. They are presenting themselves as the face of a hip, liberal Orthodoxy. And they’re doing so by ripping people off. There is a mishnah in the first perek of Sukah that teaches us that one cannot fulfill the mitzvah of the arba’ah minim with a stolen lulav. Can one disseminate Torah using illegal sampling?

I emailed Y-Love about my concerns. He replied “[…] You’re totally on point” and mentioned, as DJ Handler had, that he was not involved in the production. But come on. There is a huge picture of his face on the album cover and it’s listed as a Y-Love disc on the website. I don’t think it’s unreasonable to assume an artist named Y-Love might have been involved in a work called “DJ Handler Presents Y-Love.” He bears a certain amount of responsibility for the product that he is endorsing.

I’m sure that many will think that I’m making a big deal out of nothing; this issue is worth that risk. Musicians often have hard lives, financially speaking. If we profit off of their work, we need to compensate them.

Whosoever tells a thing in the name of him that said it brings redemption to the world, as it is written [Esther, ii. 22]: “And Esther said it to the king in the name of Mordecai.” –Pirke Avot 6 (my wife thinks it would be funny if I purposely misattributed this quote).

*Y-Love said that he had mentioned this in the “azhara chashuva” Does anyone know what he’s referring to? I didn’t see any sort of warning in the liner notes or on the Modular Moods website.

Mobius wrote:

I completely disagree with your point.

See here.

And:

It was reported about Hillel the Elder that every day he used to work and earn one tropaik, half of which he would give to the guard at the House of Learning, the other half being spent for his food and for that of his family. One day he found nothing to earn and the guard at the House of Learning would not permit him to enter. He climbed up and sat upon the window, to hear the words of the living God from the mouth of Shemayah and Abtalion; They say, that day was the eve of Sabbath in the winter solstice and snow fell down upon him from heaven. When the dawn rose, Shemayah said to Abtalion: Brother Abtalion, on every day this house is light and today it is dark, is it perhaps a cloudy day. They looked up and saw the figure of a man in the window. They went up and found him covered by three cubits of snow. They removed him, bathed and anointed him and placed him opposite the fire and they said: This man deserves that the Sabbath be profaned on his behalf.

…That’s right–Hillel circumvented their Digital Rights Management technology by finding a hole in their security.

Daniel Scheide wrote:

While I think you made an interesting point in your response, after giving it some thought, I’m not buying your argument. You’ll notice that Hillel only did this as a last resort when he was broke. When he had the money, he paid the cover charge. And much more importantly, after he had circumvented their digital rights management technology, he didn’t run down the street afterwards and charge his buddies to hear those same words of Torah from him.

Let’s say I published a book of essays and every other one was one of your blog posts. I don’t give you any attribution or compensation. Are you telling me that you’d be good with this? The NYT article you sent doesn’t justify this practice to me. It does reinforce the idea that we’re dealing with ethical issues that we really don’t have proper models for and that perhaps we need to, on some level, start from scratch. If the artists involved approve of the mixtapes, then of course there’s no problem. Maybe the mixtape will promote his or her music, but that should be their decision to make.

As you can tell, I think these issues are very important and very fascinating. Even though you clearly disagree with my pov, I’m very interested in your response. Maybe you can convince me that I’m wrong.

Mobius wrote:

Now hang on a second there — Torah is public domain. It is the evolution of a communal dialogue of which there is no sole author. No one can claim ownership over “their Torah” because they can only build upon what others have said before them. Of course there is a principle to credit an original author of chiddushei torah, but beyond that there are no restrictions on “sampling” or reproduction even for commercial purposes. No one owns the rights to the Talmud or Torah. Anyone can reprint it. And no one can claim “originality” because so long as I’m referring to previous works to make my points, I’m engaged in that same communal dialogue.

If anything, I would say that there’s a common-law public license in play that guarantees the freedom to sample so long as there is attribution. When an artist samples another artist’s work, so long as they have produced a truly new work and have given the original artists from whom they’ve drawn upon credit for their contribution to that work, there ought to be no issue of infringement. Hence there are thousands upon thousands of seforim that quote Torah, Talmud, midrash, and so forth, without any financial debt being owed to the forebears who are being quoted left and right. If I write a sefer today, I don’t owe Rambam money after I quote him. Nor do I owe a living rabbi any money if I quote him. If I try reprinting his entire book and pass it off as my own work, surely I deserve to be penalized. But if I take a 30 second snippet, loop it, and rhyme over it, it’s not the same as taking a 4 minute song and calling it my own, nor do i think it’s the same as reselling the other person’s work without paying them. So I don’t think that your analogy holds water at all.

More to follow…