Israel Supreme Court Mediates a Settlement between Authors on Plagiarism, But leaves the Law Unclear

Naomi Ragen

In a strange development concerning copyright law, on hearing an Appeal to the Israel Supreme Court, rather than ruling on the matter, the honorable triumvirate of judges who heard the case, engineered a compromise between the parties, Ms naomi Ragen and Ms Sarah Shapira,  under which the decision states that:

(1) the District Court ruling is passé

(2) the Apellant, Ms Naomi Ragen, agrees to uphold the requirement of the Court of First Instance, and remove a couple of pages from her novel Tamar’s Sacrifice, that the defendant of this appeal (and the original plaintiff) Ms Sarah Shapiro, alleged were plagiarized from her earlier novel.

(3) Of the NIS 233,000 original damages and legal fees awarded to her, Ms Shapiro was required to donate NIS 97,000 of either Yad Sarah – a philanthropic organization that lends out medical equipment such as crutches, wheelchairs, baby cots, breast pumps for nursing mothers and the like, or to Yad Aliezer, which provides food relief and runs soup kitchens to the poor.

(4) This brings all outstanding issues to a close.

Appeal 4958/12  Ruling 6 November 2013, Ragen vs. Sphapiro, Judge Chayet and two others.

COMMENTS

Ms Shapira and Ms Ragen have both been busy publishing press releases to the effect that they have been vindicated, and so the Honorable Supreme Court have increased peace and happiness in the world, following in the footsteps of Aharon the Peace Maker.

My problem is that this is what mediation and maybe arbitration is for. In my opinion, the Supreme Court’s job is to follow in the footsteps of Moses and is supposed to teach and clarify the Law.

Facts

The evidence here is clear. There are 2 or 3 pages of dialogue in a thousand page novel that bear some similarity to dialogue in an earlier author’s novel. The second author certainly had read the earlier author’s novel. There is no evidence of intentional copying. There are also some other similarities, such as a house-keeper character in both books.

My Legal Analysis

I don’t think that there is a substantive portion of the earlier book that was copied, nor do I think that the section in question is a substantial element of the later book. By substantial I include both quantitative and qualitative. In my understanding, there is fair use. Possibly, there is plagiarism that may be intentional or unintentional, but there is no copyright infringement. I don’t believe that the sections contributed to the success of the second book and so do not see anything that can be considered Unjust Enrichment

My legal analysis above, has not changed since I criticized the original decision by Shapira, who also got design and trademark law wrong.  Now Ms Ragen is critical of certain aspects of the Hareidi (Ultra Orthodox) lifestyle. In particular, she was critical of attempts to have women sit at the back of the bus and demeaning to women. Together with other co-plaintiffs, she appealed this to the Supreme Court sitting as a Court of Justice, and won. Several of her novels criticize certain Hassidic and Hareidi excesses and so certain circles have had a field day with this case. Ironically, these revelers have been known to ignore the finer points of IP and find it difficult to come to terms with copyright infringement being a crime and a sin, since it is not discussed in the classical religious sources that predate printing in Europe. After earlier posts on this topic, I have been criticized for backing such a worthless sinner.

I do not feel vindicated by this ‘decision’. I also don’t feel corrected by it. I don’t see that there is a decision at all. I find this unsatisfactory. I want the Supreme Court to clarify matters of Law that are brought to it on appeal.

Judge Schapira who presided over the  the Court of First Instance is now the State Comptroller. Perhaps out of deference to him, the Judges refrained from overturning his decision. I don’t think that this is a valid reason.

In a trademark case a couple of years ago, see here, I witnessed similar behaviour of the Israel Supreme Court judges who forced a compromise instead of issuing a ruling. In fairness, over the past couple of millennia, Rabbinic Courts acted in this manner, so there is a tradition for it. Nevertheless, I want the Supreme Court of Appeals to Clarify the Law. They have failed to do so.

I don’t think that the judges have exonerated Ragen from plagiarism or affirmed Shapiro’s allegations that there was anything more than fair use. All very unsatisfactory.

Furthermore, readers of this blog will note that on occasion I have criticized copyright decisions of District Court judges as being wrong. On occasion, embarrassingly so. I have also advocated specialist IP courts or at least IP judges. Anyone is entitled to challenge my analysis of this case or of any other. My opinions are not binding on anyone. However, Supreme Court decisions are binding. The Supreme Court should hear and rule on IP cases brought before it to guide the District Court judges. That is the primary function of Supreme Court judges. Their failing to use this case to issue clear guidelines makes a mockery of the system.

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