Sotah – Naomi Ragen drinks the bitter waters of plagiarism

Naomi Ragen, Israel’s best-selling writer was accused of plagiarism by three separate authors. She was vindicated by the Israel Supreme Court last week regarding her book The Ghost of Hanna Mendes and it’s alleged similarity to The Lion and the Cross. Ragen was, however, found guilty by Judge Yosef Shapira of the Jerusalem District Court concerning the similarity of some dialogue in her novel Sotah, to a book Growing With My Children: A Jewish Mother’s Diary by Sara Shapiro. Plagiarism is not a crime on the statute books. Ragen was found guilty of Copyright Infringement, Unjust Enrichment, Negligence and Theft.

The Case

Shapiro published a non-fiction, largely autobiographical work, called Growing With My Children: A Jewish Mother’s Diary which was published in 1990 by Targum Press. The book was a daily journal from the years 1986 to 1989, focusing on the author’s participation in an ongoing parenting workshop, and the ups and downs she experienced along the way to becoming a more skilled and patient parent.

There is one conversation, between the author and her mentor, Rabbi Simcha, that is closely paralleled by a conversation in Ragen’s  novel Sotah between the central character, Dina, and her husband, Yaakov. Furthermore, Shapiro takes on a secular home-help, Sonia, and Ragen’s protagonist gets exiled from her extreme ultra-orthodox community and sent to America to work as a home-help for a secular woman, Joan.

Ragen has argued that she had indeed read Shapiro’s book, and subconsciously may have used elements as inspiration for her novel. Simply groats for her mill. It is difficult to prove otherwise. The similarities are sufficient to raise questions, but there are differences as well. The dialogue is rewritten. It is not identical.

Ragen’s attorneys pointed out that the conversation attributed to Rabbi Simcha by Shapiro were not her creation and not her copyright. The authoress’ response in the dialogue are less insightful, less memorable and weaken the case of copyright infringement still further.

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.

Shapira’s opening paragraphs establishing the facts of the case refer to the Ragen as having copied sections of Shapiro’s book, indicating that he had prejudged the issue. He also relates to the Michal Tal case mentioned above, which he also heard. But this should have been inadmissible since it was not the case under trial. That said, since some witnesses were heard simultaneously in both cases, with consent of both parties, it may be considered admissible. That as may be, as noted above, Ragen was subsequently vindicated in the Tal case.

Where there is copyright infringement, there are no grounds to rule on grounds of Unjust Enrichment, which is applicable only where there is no statutory tort, such as in the A.Sh.I.R. case. Thus finding under both counts seems wrong. Finally, what’s theft? Since when is literary theft a separate tort?

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.

For those interested, the concept in Jewish Law (Halacha) analogous to fair use is “זה נהנה וזה לא חסר ”  lit. “this one benefits but that one does not lose out.” (T. B. Baba Kama 20:1 – 21:1, Shulhan Aruckh, Hoshen Mishpat Chap. 363: 1).

The plaintiff sued for NIS 1,000,000. Although the judgement finds Ragen guilty of copyright infringement, unjust enrichment negligence and theft, it does not award damages but gives the parties an opportunity to negotiate a settlement. It seems highly unlikely that the conversation in question helped Ragen sell books, or that Ragen’s novel adversely affected Ms Shapiro’s sales. Under the relevant copyright law which is the old 1922 Copyright Ordinance, not the new 2007 Copyright Law, the statutory damages are limited at NIS 10,000.  A fair settlement would seem, therefore to be loose change. Indeed, from a financial perspective it is difficult to see how any award that will stand legal scrutiny can possibly recover legal costs.  but what both sides are looking for seems to be moral vindication rather than damages.

The case: 9430/07 Sarah Shapiro vs. Naomi Ragen, by Judge Yosef Shapira, Jerusalem District Court 11 December 2011

Comments

The ruling is a 92 page whopper, which is why this took me a month to post.

Shapiro’s account in her own words was published in Cross-Currents, an ultra-orthodox discussion group here.

I first covered the Michal Tal case here. See also naomi-ragen-fights-back for details of all three plagiarism suits against Ragen, and Naomi Ragen Accused of Plagiarism – Again for details of a third case filed by Cynthia Rosengarten concerning the Sacrifice of Tamar.

An account of the Supreme Court Ruling concerning dismissal of the case brought by Michal Tal is to be found here: haAretz version and Jerusalem Post version. Ragen’s reporting is here.

For newspaper accounts of the District Court decision against Ragen see haaretz

Additional Comments

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.

Personally, I see social criticism as positive and believe that Ragen has raised issues that should be addressed. I think that every Jabotinsky was correct in his analysis published in “the War and the Jew”, that every nation needs its Jews; a visible, different looking population to hate. Unfortunately, in Israel, the Ultra Orthodox seem to fill this position for some secular Israelis. (The secular Israelis fulfill a need for the ultra-Orthodox that goyim fulfilled in Eastern Europe, so everyone benefits from the situation, but it keeps the Messiah from coming). However, Ragen has not written the sort of anti-ultra-Orthodox diatribe that the mainstream (secular) papers sometimes publish; where one can substitute the word black, ultra-Orthodox or Hareidi with the word Jew, Kike or Yid, and the piece looks like something that could have been published in Nazi Germany. Rather, Ragen has criticized anti-social behavior exhibited by some members of the ultra-Orthodox camp and cultural norms in some circles that she sees as having negative ramifications. She hasn’t attacked the population. In this regard, she is like Bruria admonishing her husband Rabbi Meir to pray for sin to be removed by sinners repenting, not for sinners to be removed (Talmud Babli Brakhot 11).

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.

34 Responses to Sotah – Naomi Ragen drinks the bitter waters of plagiarism

  1. Alex Ragen says:

    Thank you so much, Dr. Factor, for injecting this massive dose of sanity into the media circus. Naomi has suffered a lot since these unjust and vicious cases began and she is very heartened to have support from so distinguished an expert as you. I am truly and deeply indebted to you for all your kindness to her, we both are.
    Thanks again.

  2. Jeff Gabbay says:

    Good comment. Finally some sanity where till now there has only been jealousy, greed and gross injustice.

  3. Hopeful writer says:

    Only two pages were the basis for these charges? How can that be called plagiarism, theft etc.? And as the author rightfully pointed out, who would have bought Naomi’s book on the basis of these two pages?

    From a read of some of the flack that ensued following the court’s conclusion of the Sotah case, it seemed clear that Naomi’s offense related more to her social commentary on the ultra-Orthodox lifestyle of some folks, and had little to do with her novel. This more or less vindicated Naomi as the comments made by some revealed even worse character traits and moral level than any of Naomi’s books had described. What this teaches us is that we all need to look in a mirror before criticizing others, especially in a public forum. At least Naomi’s characters were fictitious, not real people.

    By the standards of what constitutes plagiarism as used in these cases, no writers would be able to write. We were taught we should keep journals of things we experience or think about for later possible use in writings. I suppose any of those thoughts from other writings could get us in trouble. If we can’t use our experiences as part of our writing, what will we write about? Is there free speech in Israel? Oh oh, will I be in danger of being charged with theft because I reiterated a thought written down by others before me…..? Please, let’s bring common sense back to the judicial arena.

  4. Neshama says:

    Now it all makes sense . . . I asked myself when I first heard about these silly lawsuits . . . why would these ‘religious’ women sue a fellow Jew for something as ridiculous as a couple of lines in a NOVEL?? Thank you for making it clear to me. When I read the line that you wrote . . . “It is worth noting that the plagiarism cases against Ragen were filed around the time that Naomi Ragen challenged segregated bus routes (public buses mind you) serving the Ultra Orthodox Community by filing a Suit to the Supreme Court on grounds of gender discrimination.”
    I wouldn’t have believed it, if I hadn’t seen this with my own eyes! What chutzpah!

  5. Aryeh says:

    Not so quick here…

    You have accused the victim of using copyright issues as a cover
    to counter-attack for “acceptable” social critique of the hareidi society.

    Assuming that you are correct… does Judge Joseph Shapira have the same interests at heart when giving is judgement? It is a bit far fetched to assume he performed legal gymnastics for the sake of hareidi interests.

    • Aryeh,

      I think that Judge Shapira simply got the law wrong.

      I think that Sarah Shapiro feels a genuine grievance.

      I think the interest in the case is influenced by the social issues.

      Michael

    • JB says:

      Have to agree with Aryeh. Though certainly not relevant to the legal case, my own personal acquaintance with Shapiro (who happens to be the daughter of the very gifted, very liberal and very rational non-sectarian US writer and thinker, Norman Cousins) has shown that she is sincere and simply persistent, where another author might have been intimidated by Ragen’s power and stature. Also, plagiarism is not a social crime, but a very personal one.

      • I am trying to analyze things from a copyright policy perspective, not from personal acquaintances.

        I am sure that Shapiro is sincere. I am, nevertheless, equally sure that there is a miscarriage of justice here.

        Suggest you read William Paltry’s book, Fixing Coyright. He discusses how creative work happens.

  6. Thank you for a learned exposition on a case that reminds me of a problem I know from the scientific literature.

    Every scientist knows that cribbing somebody else’s research findings and passing them off as one’s own (substantial plagiarism) is one of the Deadly Sins of the profession: anybody catch you at this and you’ll find yourself ‘excommunicated’.
    However, the trade also knows the common phenomenon of ‘technical plagiarism’, where a few stock phrases, a block of a dreary “materials and methods” or a particularly pointed description of a method or effect are copied verbatim, without attribution, from a literature paper or indeed one’s own work. The fact that many scientists cannot write to save their lives — after all, many fields of science have a selection bias for numerical and visuospatial over verbal intelligence — only makes this more common. By the standards of the profession it is considered a ‘venial sin’ that will earn you at worst a strongly worded letter from a journal editor or sarcastic remarks from one’s more perceptive colleagues — or from the scientist whose pithy descriptions earned ‘the greatest accolade’ in this manner. Its commonality is the subject of well-worn jokes like “stealing from one paper is called plagiarism; stealing from five papers is called a literature review”.
    In many cases the ‘technical plagiarizers’ didn’t even INTEND to plagiarize, but simply regurgitate stock phrases that have been engraved on their memory (from textbooks they studied in graduate courses or review papers they refer to all the time).

    I’ve read pretty much all of Naomi Ragen’s books. Without being familiar with the books allegedly plagiarized, based on your description I would venture to say that AT WORST we are dealing with a literary equivalent of ‘technical plagiarism’. Placing this on the same level as substantial plagiarism is the equivalent of punishing perjury in the same manner as fibbing over having eaten one’s vegetables. By this draconian ‘appearance of impropriety’ (as in the eponymous book by Glenn Reynolds) standard, 90% of all scientists would be out of work, not to mention 99% of all popular songwriters. (The latter profession may however claim immunity on the grounds that one cannot plagiarize the repetition of cliches.)

    And, as Glenn Reynolds pointed out in his book (and many times on his blog instapundit), such standards invite selective prosecution, and thus abuse as tools to silence inconvenient voices. One need not be paranoid to see that this is one motive between the suits against Ms. Ragen.

    I wish Ms. Ragen many more productive years and her readers many more novels.

    Shabbat shalom!

  7. Hi Dr. Factor. Great to see your blog in the thick of things and on the front lines as usual. Keep up your Torah injections, it’s a nice treat and helps put things in perspective. Incidentally, hatzlocha in your new partnership!

  8. michael says:

    reguardless of the true intentions of naomi,the popularity of her books comes largely from the secular people pleasure to find flaws in chareidi lifestyle. making money by putting down other people and especially religion in the eyes of many warrant serious thougts of tshuva. this ordeal is god”s gift to her to get this oppoirtunity

    • I wonder if the appalling spelling and grammar is indicative that ‘michael’ had the benefit of a ‘chareidi’ education?

      Why is it always easiest to do repentance for other people?

      • michael says:

        i had actually a chareidi education plus a medical doctorate. in another language though. too bad for predjudices by the way wise people should be and are happy with constructive comments regardless of the other person spiritual needs. do you suggest more of the same until one get the message?

      • Michael,

        Bully for you! Your grammar is still appalling, but if it is a second language, excusable.

        I don’t think you should worry about my spiritual needs or Naomi’s. Let’s stick to the issue which is fair use and copyright.

        Michael

  9. Michael says:

    I can’t believe people are defending Ragen – she took a passage from Shapiro’s book and rewrote it. She even copied some of the the plot, any idiot can see that spelled out in the cross currents article. I remember when at junior high school we would do that kind of stuff when copying passages from an text books for a history paper for example. But never in a creative writing class – we would have failed for sure.

    Then, since this is undeniable you slander Shapiro for the timing of it, implying this was just a political move. Unbelievable! Undermine the credibility of the accuser when you have no argument!

    It may have been only 2 pages, but it was a powerful idea and scene – how would you all feel if someone stole that from your work? If Ragen had any integrity she would have apologized, admitted she plagiarized a short passage not thinking it would do any harm and asked Shapiro how she wanted to be compensated, whether it be to remove the passage, money or a public acknowledgment.

    By the way this is a different Michael.

    • Dear Different Michael.
      I think that the specific use of a passage that it rewritten in this manner falls squarely within the fair use exception under US Copyright law, and is the standard that I believe the Israel Court should have applied.

      My expertise is Intellectual Property. On policy grounds, to promote the creation of new works, I believe this type of use should be acceptable.

      The cross-currents article was simply defamation.

      I have no idea whether or not Naomi Ragen has integrity. I do see an issue that Ragen had an opportunity to amend or acknowledge between editions and didn’t.

      Sincerely,

      An even more different Michael ;-)

      • Michael says:

        Dear Dr Michael,

        Thanks for your reply – maybe I am the idiot as I don’t have a law degree or understand the relevant US or Israeli law.

        I don’t understand why the Cross Currents article was defamation. Is it because she wrote what happened on a blog? Assuming Shapiro’s account was 100% truthful, would it still be defamation?

        I apologize if I was too hard on Mrs Ragen, still if Shapiro is to be believed Mrs Ragen was not honest with her. First pretending she didn’t know what Shapiro was talking about, then admitting it and offering to remove the passage, then backtracking altogether – makes me suspect that in the interim she spoke to an attorney who advised her that the law was on her side, maybe the “fair use exception” you were talking about?

      • Michael,

        You are not an idiot. Both authors are fairly emotional and I am unable to relate to the ‘facts’ from their accounts.

        The court ruling’s version of what happened and that in cross-currents are similar but not identical.

        That as may be, my interest is in the correct application of copyright law to the case in question, not morals or ethics which are more subjective.

        Here’s a little test I’ve devised to filter out emotions:

        Try reversing the scenario, and as a thought model consider a less well-known author writing a self-health book taking a two page conversation between a fictitious man and wife , amending slightly and using to illustrate how a rabbi, priest or psychologist would respond to a woman presenting similar secanario.

        Would this be fair use? I think so.

        For that reason, if Ragen would have consciously taken a conversation from a non-fiction dialog and used it in her novel, I think the fair use exception should apply.

      • Michael,

        The list of fair use exceptions is an open one.

        It is worth noting that Ragen’s lawyers pointed out to Shapiro that the rabbi’s remarks in Shapiro’s book were copyright of the Rabbi! The judge accepted that argument.

        Once Shapiro’s book was published the contents thereof are available to the public. To reproduce a substantial (quantitative or qualitative) amount of the book within the life of Shapiro + 70 years, under current copyright law, Ragen would need to obtain her permission.

        **********************************************
        This is the more interesting bit:

        Judge Shapira’s ruled that the two pages of conversation are substantial. I disagree.

        I believe on policy grounds that his position is inappropriate since it stifles creativity. Ragen’s book is not Shapiro’s with a new cover. it is a different work, serving a different purpose. Shapiro herself maintains that the audiences are different (although I suspect that the overlap is rather larger than she stated).

        Koheleth (Ecclesiastes) correctly points out that there is nothing new under the sun.

        Let me hypothesize something else to give you food for thought. Let’s posit that a conversation in a narrative section of a novel has a character relating to his dilemma as Hobson’s Choice, as Catch 22 or as Sophie’s Choice.

        Now, let’s put Hobson’s choice to one side since although most people know the term from the 1954 movie, the term first appears in literature in the 17th century. However, Sophie’s Choice was written by William Styron in 1979 and Catch 22 was written by Joseph Heller and first published in 1961. Both works are copyright protected.

        I assume we’ll agree that the titles of the works are more significantly qualitatively than a couple of pages of incidental dialogue.

        Should the author of the book having a character that describes something as Sophie’s Choice or as Catch 22 be considered guilty of copyright infringement? Maybe putting the bar that high does nothing for promoting culture? I think it is fair to assume that the reference will neither make nor break the new novel, nor have any influence on its sales. Furthermore, the new work will not measurably affect the sales of either Styron’s or Heller’s earlier work.

        In conclusion, I believe that Ragen’s alleged plagiarism is not only incidental, but she didn’t copy verbatim. Her argument that it was unintentional and unconscious is at least feasible, although personally, I don’t think it should be actionable if it was intentional.

        Best wishes,

        The yet another Michael

  10. Michael says:

    Hi Michael again,

    This is a really interesting discussion! Thank you for your kind replies. I pulled this off the US Copyright office’s website,http://www.copyright.gov/fls/fl102.html
    I hope quoting this is fair use! (and I know I’m out of my depth)

    “Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.”

    First point, a fictional novel or creative work is not mentioned in a general overview.

    Next quote,
    “Copyright protects the particular way authors have expressed themselves. It does not extend to any ideas, systems, or factual information conveyed in a work.

    The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.”

    This is where it gets blurry for me, Shapiro if I understand wrote an account of her conversation with the Rabbi. She expressed herself in a certain way, but one could say this was “factual” and she was quoting a conversation. On the other hand the “factual information” is not a well known fact in the public domain so Ragen should have asked for permission as the safest course.

    In your example of the reverse scenario are you saying that Ragen assumed the Rabbi’s response was more or less a standard response and therefore “fair use”? Have you ever heard a Rabbi say “If you bump against a wall are you angry at the wall?” clearly the original, “bump against a table” makes more sense – people don’t normally bump against walls! But at least clumsy people like myself are always bumping against tables..lol. Also it looks like Ragen changed “table” to “wall” and later “apple to pear” to “fish to lion” to avoid copyright problems. In both cases I like Shapiro’s account and it seems more believable. Who ever compared a fish to a lion? Clearly an apple is close to a pear and the rabbi is saying even then the author will not be able to make that shift in her personality, or her essence. It’s a lot more subtle than the impossible leap from a fish to a lion. A standard response might have been “can a leopard change his spots?” שבת שלום!

  11. Sarah Shapiro says:

    March 5, 2012 at 1:18 pm

    Dear Dr. Factor:

    As you have acknowledged honestly in this blog, your training and professional credentials are as a patent attorney rather than as a professional in the fields of copyright law, literature, or literary plagiarism. It bears reminding your readers, too, that your self-assured opinions of Judge Shapira’s verdict were reached and posted on the Internet without your having read my book–not even those chapters which were the subject of the lawsuit.

    In the wake of the verdict, Mrs. Ragen has untruthfully mischaracterized the plagiarism case as having involved a few similar phrases and lines here and there, or “one conversation with a rabbi,” or “just two pages.” It is distressing to find these and other inaccurate statements repeated in this blog as facts, along with your personal speculations.

    Since Judge Yosef Shapira’s verdict was delivered in December 2011, after four years of court proceedings and innumerable cross-examinations under oath of Mrs. Ragen and myself, it has been difficult to refrain thus far from correcting Mrs. Ragen’s misrepresentations out of court, both in print and online.

    The question for me is how to speak out without violating secular or Jewish law.

    If Mrs. Ragen exercises her right to appeal, a return to court will afford me the proper venue to respond.

    Sarah Shapiro
    Jerusalem

    • Sarah,

      The good Judge Shapira went to great lengths to list the similarities between the two books which are the basis of his findings of copyright infringement, unjust enrichment and theft, and, this included a table of similarities. If Ms Ragen appeals, the court of appeals will not review the factual basis of Judge Shapira’s decision, an appeal is not a retrial of the evidence. Rather, they will review his decision, including the evidence he’s produced therein, and decide whether or not he has applied the law correctly.

      As my interest is in the quality of ruling not in the quality of your work or Ms Ragen’s, like the Court of Appeals, I don’t need to read either book. I also don’t need to conduct my own public surveys on trademarks to determine market penetration before reviewing trademark rulings, or to review a patent, to manufacture the article protected by the claimed method, and to conduct a prior art search before reporting a patent ruling.

      My main point may be too subtle for you to have understood. I think Judge Shapira has done a competent job in cataloging the similarities between the two books which was the basis of his ruling. However, I don’t think Shapira found the correct balance between the rights of the author and stifling creativity of others. I believe that Bernard of Chartres was correct that we are all standing on the shoulders of giants. Your book borrows from earlier authors and exists in a context. If you prefer a more Jewish source than Bernard of Chartres, I refer you to Kohelet (Ecclesiastes) about there being nothing new under the Sun. It would be churlish to remind you that the allegedly plagiarized conversation in Ms Ragen’s book is based on a conversation between and a rabbi, where the clever remarks were those of the Rabbi, and so it is difficult to see why you should have rights in these remarks.

      I hope an appeal is filed as I consider Shapira’s ruling to be a dangerous precedent and a miscarriage of justice. Of course, it is not impossible that the Supreme Court will uphold his decision. I note that Shapira is a judge and I am not.

      I have reviewed a number of ‘creative’ IP decisions that Shapira has made in recent years, including trademark (e.g. Kaynes for schach) and design rulings (eg Karshi), not only copyright. Although I make my living as an IP professional and believe in IP rights, I think he is wrong to extend the French approach and rule that copyright is a constitutional property right covered by the 1980 Basic Law of Property. I prefer the Anglo-American tradition that sees copyright as primarily an economic right. I do not think that your sales suffered from Ms Ragen’s book, nor do I think that the reworked conversation is a significant part of her book or contributed to sales. I do not think that concepts such as working as a house cleaner can be subject to copyright.

      Finally, as I have offered to you in the past, if you would like me to read your book, please send me a copy. I will read it from cover to cover, and if my view changes, will publish a retraction.

      As to my professional qualifications, these are irrelevant as I am publishing a reasoned argument and the correct way to overcome it is to show where I am wrong, not by attacking my qualifications for issuing it. The emperor may be nude, even if it takes a little boy to realize it. That said, unlike most Israel patent attorneys, I do have a law degree. Professional publishing houses such as Oxford University Press send me courtesy copies of their academic books on copyright to review, and I will be publishing a review of a recent text in a peer reviewed academic journal.

      Please note, although my formal qualification in English Literature is limited to an ‘O’ level (approximately equivalent to a 3 point bagrut) – I am fairly well read in classic and modern literature of all types, but yes, merely an amateur reader (so were I to have read your book, my views would remain those of an amateur).

      At the end of the day, I am providing rational, explained arguments to support my position and not asking anyone to accept it based on academic or professional qualifications.

      And a very good Purim to you too…

      Michael

      • JB says:

        “My main point may be too subtle for you to have understood.” Really, Dr. Factor? Or maybe just too subtle for you to enunciate sufficiently for parties of interest? May I suggest that you’ve now said everything you need to say on this topic.

        Re your closing ‘very good Purim to you too’ — what’s THAT about?

      • Dear JB,

        I will continue to write what I like on what I like but I agree that the topic is more or less exhausted now – unless an appeal is filed.

        I think Ms Shapiro and I have a difference of opinion in what is reasonable analysis for a blogger. I think I can relate to decisions without redoing the job of counsel and the judge and anlayzing the case. She disagrees.

        As she challenged the legitimacy of me commenting on literature without a formal qualification in the subject, which was a little like a personal attack, I responded in kind. Probably we both should have been more polite.

        As to a Good Purim, I wrote the response on the Jewish festival of Purim, so wished a co-religionist the appropriate greeting.

  12. Michael says:

    Send him the book Sarah!

    • Sarah Shapiro says:

      Dear Michael,

      I was obliged by law to provide my lawyer, Mrs. Ragen’s lawyers, and Judge Shapira with copies of my book.

      For interested individuals who want to arrive at their own opinion of the verdict, the book is available for sale online as an e-book.

      With best regards,
      Sarah Shapiro

  13. Sarah Shapiro says:

    Dear Michael,

    Your online posts convey a strong sense of mission both personal and professional, to uphold fairness, balance, objectivity, and openness.

    I think this is why the person who told me about your site suggested that I respond here rather than elsewhere. I’m sure it was an unintentional omission that my reply to your comment wasn;t posted.

    Please take this reminder In that spirit

    With best regards
    Sarah

  14. yos & bro says:

    if only Mrs. Ragan would apologize personally, this whole affair would have never come to court.

    The problem was she did not accept responsabiliy. Therefore she wasn’t honest.

    That to my mind is the bone of the matter.

    • you may be correct.

      The rabbis believe that Jeptha’s daughter was sacrificed since her father was a judge and too proud to go to the high Priest (Pinchas) to ask for his vow to be annuled. Similarly, Pinchas was too proud to go to Jeptha.

  15. It would be most helpful if you presented the actual evidence, for the plagiarism rather than refer to it in Case: 9430/07 Sarah Shapiro vs. Naomi Ragen, by Judge Yosef Shapira, Jerusalem District Court 11 December 2011 . This 90+page ruling must have seen more that a few casually overlapping remarks, to award the largest sum in a plagiarism case in Israeli history: 233,000 NIS including 100,000 in court fees.

    • Rae, I could reproduce both books and the judgement in their entirety, but would no doubt be laying myself open to copyright infringement charges. Instead, therefore, I incorporated these by reference.

      You can access the judges ruling quite easily. and analyze them yourself. No doubt Adv. Corinaldi will send you a copy if you ask him nicely – that’s how I got mine! You may also be pleased to learn that the similar passages are compared in a table that is in English.

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