Conformance with United States Copyright Law
Our project operates in accordance with the Copyright Law of the United States of America and its understanding of the limits and boundaries of the Public Domain. The laws of copyright and the boundaries of the Public Domain differ country by country. Certain areas of copyright granted in some countries do not exist in the United States.
Under the halakha of dina malkhuta dina (the law of the land is the law), our project must operate under the aegis of United States copyright law. However, the imposition of secular property law on creative works inspired by Torah presents important difficulties that we refuse to ignore. While in secular law, all creative works are accorded as intellectual property that is either under copyright or in the Public Domain, in Judaism, Torah is regarded as a Commons whose transmission and reception are ruled by the values of ḥesed (lovingkindness) and reciprocal giving (Cf. Talmud Bavli Sukkot 49b, Talmud Bavli Eruvin 54a, Bamidbar Rabbah 1:7, et al). This idea is expressed powerfully in the following passage from the Mekhilta de-Rebbi Yishmael (tractate Baḥodesh ch.1 on Shemot 19:2):
ויחנו במדבר – נתנה תורה דימוס פרהסיא במקום הפקר, שאלו נתנה בארץ ישראל, היו אומרים לאומות העולם אין להם חלק בה, לפיכך נתנה דימוס פרהסיא, במקום הפקר, וכל הרוצה לקבל יבא ויקבל. מפני מה לא ניתנה תורה בארץ ישראל? שלא ליתן פתחון פה לאומות העולם, לומר לפי שנתנה בארצו לפיכך לא קבלנו עלינו. דבר אחר: שלא להטיל מחלוקת בין השבטים, שלא יהא זה אומר בארצי נתנה תורה וזה אומר בארצי נתנה תורה, לפיכך נתנה במדבר, דימוס פרהסיא במקום הפקר. בשלושה דברים נמשלה תורה במדבר ובאש ובמים לומר לך מה אלו חנם לכל באי העולם אף דברי תורה חנם לכל באי העולם.“[They] encamped in the Midbar (wilderness)” — Torah was given over dimus parrhesia (as a public and open proclamation) in a maqom hefker (a place belonging to no one). For had it been given in the Land of Israel, they would have had cause to say to the nations of the world, “you have no share in it.” Thus was it given dimus parrhesia, in a place belonging to no one: “Let all who wish to receive it, come and receive it!” Why was the Torah not given in the land of Israel? In order that the peoples of the world should not have the excuse for saying: “Because it was given in Israel’s land, therefore we have not accepted it.” Another reason: To avoid causing dissension among the tribes [of Israel]. Else one might have said: “In my land the Torah was given.” And the other might have said: “In my land the Torah was given.” Therefore, the Torah was given in the Midbar (wilderness), dimus parrhesia, in a place belonging to no one. To three things the Torah is likened: to the Midbar (wilderness), to fire, and to water. This is to tell you that just as these three things are free to all who come into the world, so also are the words of the Torah free to all who come into the world.
As applied by rabbinic jurists, the rule against acting like a Sodomite gives rise to three possible limitations on copyright, even assuming that copyright is property.
First, if an author has created and disseminated his work with no intention of profiting from it, he suffers no economic loss even if another benefits from his work without paying for it, and thus such an author might be acting like a Sodomite were he to insist upon payment after the fact.
Second, the rule against Sodomite behavior supports the view of some rabbinic jurists that private copying is permitted so long as the copier would not have otherwise purchased the copy and thus causes the author no loss.
Third, the rule might be the basis for limiting copyright’s duration for published works. In his seminal ruling rejecting a perpetual, proprietary copyright while conceding that authors have an exclusive right to print their unpublished manuscripts, [Rabbi] Yitzhak Schmelkes [1828-1905] reasoned that copying causes the author no damage (as distinct from foregone profit) once the first edition has been sold, and thus that the rule against Sodomite behavior negates any continuing claim the author might have to enforce an exclusive right to print following the first edition.
So long as prayers and related text, recordings, and artwork shared through our website are considered “property,” we will abide by the halakhic opinion (and majority position) of Rabbi Yitzhak Schmelkes: “the author’s exclusive right to publish a manuscript and sell a first edition flows not from a proprietary copyright in the text, but only from the Jewish law of unfair competition or from the author’s right to condition access and use of the physical chattel, the manuscript, in which the author holds a property right.” For this reason, we request that all users limit any extensive copying under their Fair Use right to works that are either out-of-print in their first edition, or ephemeral and in limited circulation. Even though we are required to treat these works of Torah as property, we are heartened by the teaching of Rabbi Yisrael Meir Kagan (1838-1933, a/k/a the Chofetz Chaim) who wrote “[Lending property] stems from compassion and constitutes a mitzvah, as ḤaZa”L have pointed out: “tzedaka is performed with one’s money; ḥesed with one’s money and one’s self” (Sukkah 49b). Rashi explains ḥesed here to mean the lending of money, chattel (personal property), livestock—all being included in the mitzvah”.
It is the policy of our project to correctly credit all contributors and to properly attribute all works, those under copyright and those in the Public Domain, indicating wherever possible where modifications have been made and who made them.
The Open Siddur Project does not recognize an area of copyright applicable in some countries called, sweat of the brow copyright. (Please refer to Project Gutenberg, “No Sweat of the Brow Copyright.”) However, we endeavor to correctly attribute all contributors for their efforts, even those whose efforts do not merit attribution under U.S. copyright law.
Work in the Public Domain Remains in the Public Domain
All copyright registrations eventually expire. Moreover, not all copyright claims are valid. In partnership with the Free Culture Society for Open-source Judaism, we investigate the copyright status of works of Jewish prayer (and related content) that may be in the Public Domain.
Our project does not honor Copyfraud, a proprietary claim on a work in the Public Domain. Nor does our project honor attempts to control public access to Public Domain works through click-through contracts called End-User License Agreements (EULAs). Works in the Public Domain cannot be removed from the Public Domain and we condemn attempts to subvert access to works in the Public Domain through technological controls.
Under the principle in copyright law that “the creative is the enemy of the true,” all printed or digital reproductions (e.g. image facsimiles, transcriptions, and vocalizations) implicitly or explicitly claiming verisimilitude with an original work in the Public Domain, are considered to be in the Public Domain. (Cf. Judge Dennis Jacobs: “[F]aithfulness to the public-domain original is the dominant editorial value, so that the creative is the enemy of the true,” from Matthew Bender & Co. v. West Publ’g Co., 158 F.3d 674, 688 (2d Cir. 1998), cert, denied, 526 U.S. 1154 (1999). For more on how this ruling applies to Jewish works in the Public Domain, see David Nimmer, “Copyright and Originality in the Dead Sea Scrolls,” Houston Law Review (2001), 38:1, p.105-115.) This principle is also in effect for reproductions of two-dimensional artworks in the Public Domain remain in the Public Domain. (For relevant case law, see Bridgeman Art Library, ltd., vs. Corel Corporation, United States District Court for the Southern District of New York, 36 F. Supp. 2d 191; February 18, 1999.)
The following is adapted from the summary of the relevant copyright law in the United States by the Wikimedia Commons.
Works Published in the USA Before 1923
Works published before January 1, 1923 are in the Public Domain. (For a definition of “publication” see e.g. Copyright Office circular, page 3. This modern definition is only valid for 1978 and later, as the 1909 Copyright Act did not explicitly define it, though the concepts were similar.)
Works Published in the USA Between 1923 and 1964
Works published before January 1, 1964 and whose copyright was not renewed within 28 years of first publication are in the Public Domain (search the Stanford Copyright Renewal Database).
Works Published in the USA Between 1964 and 1978
Works published before January 1, 1978 with no copyright notice (“©”, “Copyright” or “Copr.”) plus the year of publication plus the copyright owner (or their pseudonym) are in the Public Domain.
Works Published in the USA Between 1978 and 1989
Works published in or after 1978 but before March 1, 1989 with no copyright notice are in the Public Domain unless the work’s copyright was registered within 5 years of the work’s initial publication. Works created after January 1, 1978 attain a copyright of either 70 years after the death of the creator, or 95 years from the date of publication for works published by corporate entities.
Works Published Outside the United States
Works which were first published outside the US (and not subsequently republished in the US within 30 days) on or after January 1, 1923 may be copyrighted in the US by virtue of the URAA (Uruguay Round Agreements Act) even if the works U.S. copyright previously expired due to a failure to comply with US copyright formalities (i.e., the lack of a copyright renewal or the lack of a proper copyright notice.) In general, such works had their U.S. copyright restored if the work was out of copyright in the US due to noncompliance with US formalities but still under copyright in its country of origin on the URAA date. (For most countries, the URAA date is January 1, 1996.) Works first published in the US are not affected by the URAA. For more detail, please refer to this chart by PublicDomainSherpa.
In Case of Possible Copyright Infringement
If you are a copyright owner or an agent thereof and believe that any content shared via the Open Siddur Project infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing or electronically. (See 17 U.S.C 512(c)(3) for further detail.)
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material (providing URLs in the body of an email is the best way to help us locate content quickly);
- Information reasonably sufficient to permit us or our agents to contact you, such as an address, telephone number, and, if available, an electronic mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement is:
Aharon Varady, ℅ The Open Siddur Project, 727 Red Bud Ave., Cincinnati, OH 45229.
Only DMCA notices and notices relating to complaints in connection with infringement of intellectual property rights should go to the Copyright Agent. Any other feedback, comments, requests for technical support and other communications should be addressed to our standard support contacts as identified on this Website.
WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE CONTENT IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY US, BY ANY COPYRIGHT OWNER OR BY ANY COPYRIGHT OWNER’S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.