Preserving Public Domain resources from End User License Agreements in Proprietary Torah Databases

Often we are asked here at the Open Siddur Project why we cannot simply use the digitized texts of the siddur that are available from Davka Corporation. Our instinct was that Davka only granted permission for individuals to use their digitized Hebrew texts under fair use doctrine. To be certain, we sought to find the the text of Davka Corporation’s End User License Agreement (EULA) and failing to locate this information online, friends of the project provided us with the EULA included with the packaging and software installer for a Davka software product: DavkaWriter Dimensions II.

From the language of these license agreements, it is clear that the text Davka is providing is not free for end-users to distribute or to create derivative works. Section 4(a) of the EULA reads: “You may not use the texts in the software to publish materials for sale without express written permission from Davka Corporation. Preparation of these texts has entailed considerable effort and expense. They are not shareware, and should be used by no one other than the purchaser.”

In stark contrast, the texts that the Open Siddur is sharing may be distributed and re-distributed without our express written permission, for commercial and non-commercial, for educational and non-educational use. In short, our texts are FREE. We are making these texts free because we believe that these texts are the cultural legacy and inheritance of the Jewish people to create and innovate with in the publishing of new siddurim customized to an individual or groups spiritual practice. We have so much to share with each other, why should we  limit our culture vitality by shackling it to copyright?

There are other reasons why we would not use the digitized texts of contemporary siddurim. The most important reason besides their not being free, is that they do not clearly attribute the source of their digitized texts to the historical siddurim that they were presumably derived from. The Open Siddur Project aims to provide the text of all the nusḥaot of the siddur and their variations with full attribution of the sources for these texts.

The following is the text of the License Agreement (pdf) included in the packaging of the DavkaWriter Dimensions II CD:

Licensing Agreement

The files on this program are licensed to the purchaser on an “as-is” basis. While the publishers have made every effort to avoid errors, they will not be held responsible for any loss or damage, incidental or consequential, resulting directly or indirectly from the use of this program. In any case, the sole and total liability of the publishers shall not exceed the sum paid for the program by the purchaser. The texts on this CD may be used by the purchaser for personal or family use. If the purchaser is an institution, the texts may be used by that institution for its own needs. However, any use of the texts in the publication of materials for sale requires written permission from the Davka Corporation. Preparation of DavkaWriter Dimensions has entailed considerable effort and expense. It is not shareware, and therefore should not be used other than by the purchaser.

The following is the EULA included with the software installer and must be agreed to (via click-through) before the software allows itself to be installed.

END-USER LICENSE AGREEMENT FOR DAVKAWRITER DIMENSIONS

IMPORTANT-READ CAREFULLY: This End-User License Agreement (the “Agreement”) is a legal agreement between you, either an individual or a single entity, (the “Licensee”) and the Institute for Computers in Jewish Life, Davka Corporation, and David Kantrowitz (the “Publishers”) for the DavkaWriter Dimensions software product, which includes computer software, truetype font files, textual documents, associated media and printed materials, and “online” or electronic documentation (the “SOFTWARE”).

By installing, copying, or otherwise using the SOFTWARE, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, promptly return the unused SOFTWARE to the place from which you obtained it for a full refund.

The SOFTWARE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE is licensed, not sold.

1. GRANT OF LICENSE. This Agreement grants you the right to use one copy of the SOFTWARE on a single computer.

The SOFTWARE is in “use” on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that computer. However, installation on a network server for the sole purpose of internal distribution to one or more other computer(s) shall not constitute “use” for which a separate Agreement is required, provided you have a separate Agreement for each computer to which the SOFTWARE is distributed.

THE LICENSE IS LIMITED TO THE PROVISIONS OF THE REST OF THIS AGREEMENT, ESPECIALLY THOSE IN ITEM 4 BELOW.

2. UPGRADES. The SOFTWARE includes an upgrade to the DavkaWriter Platinum program, produced by Davka Corporation. This upgrade may be used ONLY by a licensed user of the DavkaWriter Platinum program. The DavkaWriter Platinum upgrade may NOT be separated from this SOFTWARE for use by another individual or entity. It may be used only in accordance with this Agreement.

3. COPYRIGHT. All title and copyrights in and to the SOFTWARE (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the SOFTWARE), the accompanying printed materials, and any copies of the SOFTWARE are owned by Davka Corporation or its suppliers.

The SOFTWARE is protected by copyright laws and international treaty provisions. Therefore, you must treat the SOFTWARE like any other copyrighted material except that you may either (a) make one copy of the SOFTWARE solely for backup or archival purposes or (b) install the SOFTWARE on a single computer provided you keep the original solely for backup or archival purposes. You may not copy the printed materials accompanying the SOFTWARE.

4. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

a. YOU MAY NOT USE THE TEXTS IN THE SOFTWARE TO PUBLISH MATERIALS FOR SALE WITHOUT EXPRESS WRITTEN PERMISSION FROM DAVKA CORPORATION. PREPARATION OF THESE TEXTS HAS ENTAILED CONSIDERABLE EFFORT AND EXPENSE. THEY ARE NOT SHAREWARE, AND SHOULD BE USED BY NO ONE OTHER THAN THE PURCHASER.

b. Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, or disassemble the SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

c. No Separation of Components. The SOFTWARE is licensed as a single product and neither the software SOFTWAREs comprising the SOFTWARE or any UPDATE may be separated for use by more than one user at a time.

d. Rental. You may not rent, lease, or lend the SOFTWARE.

e. Software Transfer. You may permanently transfer all of your rights under this Agreement, provided that you retain no copies, you transfer all of the SOFTWARE (including all component parts, the media and printed materials, any upgrades, and this Agreement), and the recipient agrees to the terms of this Agreement. If the SOFTWARE is an upgrade, any transfer must include all prior versions of the SOFTWARE.
The SOFTWARE must be completely removed from your computer before transfering it to the recipient.

f. Termination. Without prejudice to any other rights, the Publishers may terminate this Agreement if you fail to comply with the terms and conditions of this Agreement. In such event, you must destroy all copies of the SOFTWARE.

5. EXCLUSION OF WARRANTIES.

The Publishers offer the SOFTWARE and the Licensee accepts it “AS IS”. The Publishers do not warrant the SOFTWARE will meet the Licensee’s requirements or will operate uninterrupted or error-free.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PUBLISHERS AND THEIR SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

CUSTOMER REMEDIES. The Publishers’ and their suppliers’ entire liability and the Licensee’s exclusive remedy shall be, at the Publishers’ option, either (a) return of the price paid by the Licensee, or (b) repair or replacement of SOFTWARE or hardware that is defective and which is returned to Davka Corporation with a copy of the Licensee’s receipt.
All Warranties are void if failure of the SOFTWARE or hardware has resulted from accident, abuse, or misapplication. Outside the United States, neither these remedies nor any product support services offered by Davka Corporation are available without proof of purchase from an authorized international source.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PUBLISHERS OR THEIR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THE PUBLISHERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Some states and jurisdictions do not allow the exclusion or limitation of certain implied warranties or the exclusion or limitation of liability for incidental or consequential damages, in which case and to the extent such exclusion or limitation is not allowed, some of the foregoing limitations and exclusions may not apply to the Licensee.
To the extent allowed by applicable law, implied warranties on the SOFTWARE and hardware, if any, are limited to ninety (90) days and one year, respectively.

3 comments to Preserving Public Domain resources from End User License Agreements in Proprietary Torah Databases

  • Avatar Efraim Feinstein

    There are other reasons why we would not use the digitized texts of contemporary siddurim. The most important reason besides their not being free, is that they do not clearly attribute the source of their digitized texts to the historical siddurim that they were presumably derived from.

    I’m not sure that this is necessarily a problem of itself. Most siddurim don’t attribute sources, and even if they do, they frequently edit their sources. The Silverman Siddur (Conservative, c1930’s-1950’s) is a good example. His text is based on Baer’s text (he tells you that in the introduction) with minor changes all over. All that this means is that if you copy from source A, which says that it copied from source B, we have to attribute to source A, and can’t assume that source A==source B, even if copyright were not an issue.

  • Unfortunately, Silverman is exceptional in listing its sources compared to more contemporary siddurim.

  • The Bar-Ilan Responsa Project is another proprietary Torah database. Here is their EULA:

    AGREEMENT OF AUTHORIZATION FOR USE OF THE SYSTEM “RESPONSA-DISK”

    1. License
    1.1 Bar Ilan University, which is the proprietor of the copyright and all other proprietary rights in the software package (hereinafter: “the Software”) and the compact disk, has granted a license, revocable at any time to “Bar Ilan Research and Development Company Ltd” (hereinafter: 4the Company”) to produce, market and distribute the “Responsa-Disk” system. The Company hereby grants the user a personal, non-exclusive non- transferable right to use the system, without limitation in time, on the conditions set out below. The system comprises the compact-disk, the Software, the data banks contained in the accompanying documentation, (hereinafter: “the System”).

    2. Conditions of License
    2.1 The System is marketed to the user under this agreement “as is”.
    2.2 The user will notify the Company in writing, for any reason, that the user will transfer his/her “Responsa-Disk” to any other person. This is for the purpose of registration and providing updates to our users.
    2.3 The user hereby undertakes that he will not use the System for commercial purposes and undertakes not to make any use of and/or change in the System or any parts thereof byway of: copying, duplication, adaptations of the Software and/or integration thereof in any other software.
    2.4 The System protects itself from making any copies of the software. The user may not interfere with this protection in any way. The Company reserves the right to change the protection of the System from time to time.
    2.5 The user hereby undertakes not to make any use of the System amounting to printing and/or generating text in an organized fashion nor to publish any texts or translations thereof.
    2.6 In the event of the slightest doubt regarding the mode of using the System, the user undertakes to obtain the approval of the Company’s representative in advance and in writing thereto.
    2.7 The System is designed to be used on a single computer unit only at one time.
    2.8 The user will treat the texts generated by the System with the appropriate respect and sanctity as befits the use of holy texts.
    2.9 The Company reserves the right to supply and/or sell updates of the System with the return of the original compact disk to the Company’s office.
    2.10 The Company will provide technical assistance during the hours of regular working days of the
    Responsa Project (usually from Sunday through Thursday, from 8:00-16:00), for a period of up to
    12 months from date of purchase of the Software.

    3. Liability
    3.1 The Company’s liability is subject to the terms of the warranty.

    4. Default
    4.1 In the event the terms of the above license are violated, the Company may unilaterally revoke the license to use the System, to demand the return of the System from and by the user and to claim and obtain compensation from the user for all damage actually incurred by it in respect of the user’s violation of this agreement.
    4.2 The provisions of the Contracts (Remedies for Breach of Contracts) Law, 5731-1971 as well as the Courts (Consolidated Version) Law, 5744-1984 shall apply to this Agreement.
    4.3 This agreement is the only and complete agreement between the parties and, save for the conditions, statements and rights herein contained, no condition and/or further representation -whether orally or in writing or otherwise, exists whereby the Company and user intended to be bound herein, contract
    4.4 The exclusive place of jurisdiction regarding this agreement is Tel Aviv, and Israel law shall apply to this agreement.

    And here is their Terms of Service for using their online tool. From the section on “Copyright”:

    The copyright and other intellectual property rights in the site, the service, the software and any application, computer code, graphic file, voice file, video file, text file, including the retrieval software and its keys, the user interface, the system characterization, the user manuals and the help files, the graphic design of the software and its ancillary components (insofar as they are not in the public domain) belong to the Publisher alone, or to a third party, who has granted the Publisher permission to use them.

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