Open Source License for digital copies of texts

[Justin Sakofs]

What is the status of digital editions of texts from earlier centuries? For example, Davka has Rashi on the Torah digitized. Granted the digital aspect is recent, but Rashi isn't so new and should be out of copyright. Are we able to use it, at least for the purpose of translating here?

Thoughts welcome.

This is a very exciting opportunity.

[Brett Lockspeiser]

For translating, you're most certainly welcome to use any copy of a text as the basis of a translation. 

Unfortunately though, there is some legal grey area here about old, primary digital texts (unclarity which can only really be clarified in court) but that the best legal advice I have been given is that, for example, the original text of Rashi on Torah (authored in Hebrew long long before 1923) is in the Public Domain and can't be copyrighted, thus can be copied by anyone. The formatting, style and pagination may be copyrighted - but for Sefaria's purpose's we're only interested in copying the text itself, so this should be fine. 

I don't know any specifics about Davka, but one possible issue is that it may not be a violation of copyright law to copy Rashi from their digital copy, but it could still be a violation of their Terms of Service which is a contract you enter into when using their software.

The world would be a better place if there were most straightforward answers to these questions, but our (US) laws are not so good. 

Thanks,

Brett

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[Aharon Varady]

This is an issue that Efraim and I also confronted in the Open Siddur Project. 

I wrote about it here:

http://opensiddur.org/2009/10/free-as-in-freedom/

I'll disagree with Brett here only to say that this has less to do with Copyright in the US as it has to do with how EULA's have been used by software vendors to limit access and distribution of work in the Public Domain. EULA's are contractual agreements with users. By wrapping a Public Domain work in an EULA, Davka and other vendors have found a way to make proprietary works that are free.

The Copyright issue in Israel is actually worse. Here in the US there is no "sweat of the brow" copyright that someone can claim for doing a digital transcription of a Public Domain work. But in Israel (and other countries), this claim has been made.

Our solution has been to support wikisource efforts to transcribe and proofread new digital editions. 

Personally, I see no problem using extant digital editions of Public Domain material so long as they are carefully proofread against a known manuscript or other reliable textual witness. 

The problem with Davka, and for that matter, Responsa Project texts, is that without a witnessing image, there is no transparency as to 

Aharon

--
Aharon Varady
Founding Director, Hierophant
the Open Siddur Project
http://opensiddur.org

[Brett Lockspeiser]

Nice article, I hadn't seen that. This is what I mean when I said you might be violating Terms of Service even if not copyright law. The question about that, as I understand it, is whether a contract that asks to waive your right to copy public domain material is enforceable at all. Apparently on that issue the US Federal courts are split, hence only more court cases being able to decide that issue (or new, clearer legislation). I've talked with two copyright law professors at UCLA who both were of the opinion that courts should find such a contract is not enforceable, and one even said he would love to defend such a case to make the point. -b

[Justin Sakofs]

I second the article. Thanks.