The Pope and the Holocaust: A (Partial) Response To Dovbear [UPDATED 7-28-06]

DovBear asks why I carry a brief for Pope Pius XII and the Church. I do not. I simply seek the truth, and the truth in this case supports the Church. I made scans of (part of)  Sir Martin Gilbert’s endorsement of Rabbi David Dalin’s book defending Pius. Page 1 appears immediately below; page 6 is posted after the jump. Please click on the images to enlarge:

Gilbert_1

Gilbert_6

7-27-06: I just noticed that the American Spectator and Dalin share a publisher, something the Spectator does not note, but should have. This plays into DovBear’s stereotype of Republicans, but so be it.

[Amy Mitchell of TAS writes on 7-28-06: "The American Spectator is not part of, nor officially affiliated with Regnery Publishing. It is a fact that the former publisher of Regnery is now our publisher, but we are in fact two different companies." Of course, I never wrote that TAS and Regnery were the same company or part of the same company. I only wrote that they shared a publisher. It turns out that Alfred REGNERY is no longer the publisher of the house that bears his name. Does he retain a financial or other interest in Regnery? If he does, my point is absoultely correct.***]

I took down part of the review, because TAS (finally) responded by saying they "most likely would" have allowed me to put up an excerpt with a link over to their website (which would have been a link to a subscription offer, I think), if I had asked them first. But of course, I did ask. They did not respond. This lack of response would weigh heavily on the side of fair use. And I could have excerpted the review myself, without their permission, because legally none is needed. (I did not do this because I’ve been typing one-handed for a couple of days due to an injury.)

TAS could still do exactly what they "most likely" would have done. But they "most likely" will not, because the issue here is not the truth or the message, it’s money (or, at least, the idea of money). So those of you anti-Church fanatics who want to read Gilbert’s review will have to go buy it. Of course, most of you will not do that. You do not want to be disabused of your firmly held notions.

[On 7-28-06 Amy Mitchell writes: "But you did not in fact ask our permission to post our article … you merely asked if we were going to post it so you could link to it … we always appreciate our content being widely distributed and read – if permission is requested first, through official channels."

In other words, Mitchell contends my email requesting a link to Gilbert’s review is not the same as a request for a reprint. If I had requested a reprint, I would have, most likely, been approved. But I "only" asked for a link. This in her mind justifies her failure to respond to my request.

Of course, it does not do so. I hoped TAS would respond by saying the link will be up on a particular date, and perhaps an offer to let me link to it earlier. Instead, the crack staff at TAS chose to ignore the request for the link, when they would have approved a request for a reprint!

Most of Gilbert’s review is information from Dalin’s book. This is allowed under failr use and copyright law for the purpose of review. But it does not give TAS control over that information. Gilbert’s contribution to the work is largely – although not by any means exclusively – his endorsement of Dalin’s conclusions and the specific information from Dalin’s book printed in that review. That endorsement is significant – and highly newsworthy. It certainly falls under fair use.

Therefore, I could have taken large chunks of Gilbert’s review and posted them. I could also have taken every point he made, put them in bullet form, and posted that.

What I did instead was to post the entire review, for two reasons: 1) Because Gilbert’s reputation was under attack and the review’s posting blunted that, and 2) because I was typing with only one hand due to an injury.

Reason one also contributes to fair use. Reason two does not, and is not valid.]

Stellar staff you have, Regnery.

*** Regnery’s website notes:

Alfred S. Regnery
Alfred S. Regnery is President of Regnery Publishing, Inc. (Book Publishers), formerly Regnery Gateway, Inc., since 1993 a subsidiary of Eagle Publishing, Inc.. Regnery Publishing was founded in Chicago by Alfred’s father, Henry Regnery, in 1947. Alfred is also a practicing attorney and is Of Counsel to the Washington Law firm of Keller and Heckman. He served as Administrator of the Office of Juvenile Justice and Delinquency Prevention and as Deputy Assistant Attorney General, Land and Natural Resources Division, both at the U.S. Department of Justice, between 1981 and 1986. Previously he served as Minority Counsel, Senate Judiciary Committee and Chief Minority Counsel, Administrative Practice and Procedure Subcommittee. Prior to government service he practiced law for six years in Madison, Wisconsin.

So we have a clear relationship between the publisher of Dalin’s book and TAS, and my point – that this should have been noted by TAS (not by Gilbert), and not doing so is a clear ethics violation – stands. You’ll also note Mitchell did not reveal this information, but she attacked me for noting a relationship.

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62 Comments

Filed under Blogs, History, Religion, The Church and the Holocaust

62 responses to “The Pope and the Holocaust: A (Partial) Response To Dovbear [UPDATED 7-28-06]

  1. Tam

    Shmarya,

    Don’t you think there is a Halakhic, legal or at least an ethical problem with posting a scan of a long review in its entirety?

  2. No. Not when we’re dealing with a review of another work, and not when it involves a contentious issue like this. It’s scovered by the Fair Use doctrine. It also serves to promote the magazine, the American Spectator, that published the review – which has been on the newsstands for almost one month already. Ample time to sell many copies. This will only increase those sales …

  3. Anonymous

    Of course there is. This is a clear violation of the copyright laws since it goes well beyond fair use; assuming lack of permission.

    If you read the very end of the so called review, you will see that Mr. Gilbert has an agenda, namely he thinks the opposite view is harmful to relations between Jews and Christians. This alone makes his review biased; similar to the histories that Shmarya and other bloggers complain so loudly about.

    I will go with the evidence anytime.

  4. Go learn about Fair Use. And Gilbert brings a lot of fact to back up his assertions – which is a lot more than you or DovBear or Brizel have ever done.

  5. Paul Freedman

    Shmarya–I’ll admit this is worth reading but “fair use” is not, not, not reproduction of the whole thing; you’re being non-profit doesn’t cover it all–fair use is excerpts for quotation and review purposes–your reproduction, helpful as it is, is actually violation of the copyright laws if you haven’t asked permission–from a Yale library website [your reproduction goes against (3), maybe (4), maybe (2)]:

    The right set forth in Section 107 of the United States Copyright Act, to use copyrighted materials for certain purposes, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 sets out four factors to be considered in determining whether or not a particular use is fair: (1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

  6. Paul Freedman

    …that this is a “review” doesn’t erase the fact that you reproduced the whole thing (if you had a huge readership you would probably also be infringing the commercial value of the piece)

  7. 1. This is a small part of the publication, not its whole.

    2. There are ample legal opinions that this is fair use.

  8. But of course the ***ISSUE*** here is the Pope, not fair use, and the bigoted behavior of many in the Jewish community toward the Church. These bigoted Jews seem to be overwhelmingly Orthodox or radically secular. Why would that be?

  9. DovBear

    And Gilbert brings a lot of fact to back up his assertions – which is a lot more than you or DovBear or Brizel have ever done.

    The facts: http://dovbear.blogspot.com/2006/07/answering-shmarya.html

  10. That is the link I posted above. You have no facts, DovBear, just hate.

  11. Anonymous

    So now you are an expert on copyright law.
    It is amazing that you can be so expert on so many matters that you have no knowledge of.

    Appeals to authorities and selective recitations of facts, no matter by how distinguished a historian, can not replace a consideration of the record as a whole nor negate the fact that after the war, when all excuses vanished, the Church refused to return many Jewish children who it had custody of.

    Gilbert, of course, does not discuss thsi because it does not fit into his plan for Jewish Catholic relations.

  12. Anonymous

    This article is incomplete. It addresses only one of the most serious complaints about Pius- his inaction during the Roman roundup- and it addresses this dishonestly.

    Maglione’s appeal is mischarecterized, and it makes no mention of the German’s ambassador’s letter to Berlin in which he mocks the pontiff’s inaction.

    Other scholars—notably John Morely—have asserted that characterizing Vatican action on this occasion as “protest” is dubious. summarizing it this way: “There was neither confrontation, nor criticism, nor a plea for justice.”

    According to Maglione himself, Vatican intervention led to the release of many Jews, and the Pope’s defenders have made much of that claim, but more honest scholars – notably James Cromwell – dismiss it as “untruthful.” Only a handful of Jews were released, and these were almost entirely baptized Jews.

    And as for Vatican pressure stopping the roundup of Jews, more than a thousand additional Jews were arrested after Maglione’s meeting with the German. Neither Pacelli nor his Secretary of State openly protested any of this. “Their failure to speak or act,” Cornwell writes, “astonished the German leadership in the city.”

    Left unaddressed in Gilbert’s whitewashing are the litany of other complaints about Pius 12: What about the Pope’s silence in the face of the Final Solution? What about his firm support for Catholic nationalism in Croatia, even after the Ustache regime revealed itself as grotesquely genocidal? (the mini-Hitler Ante Pavelic was given sanctuary in the Vatican after the war)

    What about the Reichskonkordat, the treaty that helped legitimize Nazism? What about the treaty’s annex that granted some protection to Jews who had converted to Catholicism but explicitly defined the fate of unconverted Jews as Germany’s “internal affair,” about which the Church would have nothing to say?

    What about all the indications from his private speech and correspondance which indicate that Pacelli regarded Jews as a contemporary as well as an ancient enemy of the Church?

    This article addresses none of that.

    I’m sorry Shmarya, but this is not something I’d expect from a servant of truth.

  13. No Demonstrations

    What about the looted art from Jewish homes in the Vatican? Martin Gilbert has an agenda, and so does the RC Church. Please don’t be fooled.

    I am the first one to stand up for the late Pope John Paul the Second even though he was of course a Catholic first, bound by his church’s doctrine, and therefore not “perfect” in terms of the Jews, especially in his later years when he was often not well and was being exploited by the anti-Semitic church conservatives.

    But Paul ymach shmoi was a rosho. Even if maybe he did one or two things right – all that says is that a stopped clock is right twice a day.

  14. Tam

    Shmarya,

    It’s a small part of the publication, but the entire review. I’m pretty sure this isn’t covered by fair use.

  15. Tam – You’re wrong.

    DovBear – I’ll be sure to tell Martin Gilbert that he’s done shoddy research, while Goldhagen, et al, are perfect and correct. (Peals of laughter can now be heard throughout academia, where Goldhagen, Cronwell, et al, are largely reviled.)

  16. Anonymous

    If a charedi did this then SR would be writing Gilbert warnning him how those orthodox lunatics are stealing his work, one mans theft is another mans fair use. sic.

  17. Paul Freedman

    Shmarya, you’re wrong–I am no copyright expert but have worked in publications for 20 years: how about we notify American Spectator that you have posted an entire scanned article on your website without permission and see if they agree with you or Tam and myself?

  18. Anonymous

    (Peals of laughter can now be heard throughout academia, where Goldhagen, Cronwell, et al, are largely reviled.)

    1 – The opposite is true

    2 – I will post both Maglione’s account and the German ambassadors’ letter, and then you can tell me what’s what

    3 – I didnt say his research was shoddy. I said he did not address the overwhlming majority of the complaints about Pius 12, and I listed them. Do you see them dealt with in Gilbert’s article? Why not?

  19. Anonymous

    And as for Vatican pressure stopping the roundup of Jews, more than a thousand additional Jews were arrested after Maglione’s meeting with the German.

    Game. Set. Match

  20. Anonymous

    The following is on fair use from the US Copyright Office:

    Fair Use

    One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

    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. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

    the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

    the nature of the copyrighted work;

    amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    the effect of the use upon the potential market for or value of the copyrighted work.
    The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.

    The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

    Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work.

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

    When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.

    FL-102, Revised July 2006

    Home | Contact Us | Legal Notices | Freedom of Information Act (FOIA) | Library of Congress

    U.S. Copyright Office
    101 Independence Avenue SE
    Washington, DC 20559-6000
    (202) 707-3000

    I think it is clear that reproduction of a whole article is not fair use by the Copyright Office’s definition. (Do not ask me if it is fair use to use their definition; since it is government publication I assume it is meant to be public.)

  21. Paul Freedman

    excerpt means excerpt. Shmarya, if you want I’ll make the call for you to their editorial offices.

  22. Paul Freedman

    Shmarya: here’s an analogy: if you “reviewed” a commercially protected song from an album by posting a mp3 file of it on your website you would be in violation of the song’s copyright and associated protections no matter how thankful readers would be that you had posted it.

  23. Anonymous

    To Lawrence Reisman re: Churchill;

    It is easy to oppose something in the opposition; the true test is how you act when you are in power.

    There is no record at all that Churchill ever offered England as a refuge during the war and there is certainly none that the Zionist leadership turned it down. Even if they did, they had no power; the Jews of Europe would have gladly accepted the opportunity to live.

    As for bombing; we are talking 1944 and 1945 after the tide of war had long turned and when Britain and the US had the capability, but not the desire, to bomb the camps. Interestingly enough, there is a handwritten note by Churchill (to Kingsley?) where he endorses bombing the camps. The problem is it was never implemented.

    I write this as somebody who otherwise admires Churchill but can neither condone nor forgive what he did not do when he had the opportunity.

    I wish the record were otherwise, but it is not.

  24. NoDemonstrations

    DovBear – I’ll be sure to tell Martin Gilbert that he’s done shoddy research, while Goldhagen, et al, are perfect and correct. (Peals of laughter can now be heard throughout academia, where Goldhagen, Cronwell, et al, are largely reviled.)


    Please keep in mind that leftist academia is using Holocaust semi-revisonists like Finkelstein as a weapon to attack Israel’s right to exist. Gilbert, while perhaps not motivated by rishus as Finkelstein is, fits into their perspective. Goldhagen (I cannot say I was impressed by his work either) is anathema to them because “Hitler’s Willing Executioners” (title may not be accurate) is the perfect argument for a Jewish state.

    Chances are both are inaccurate

  25. Paul – I contacted them yesterday but they have not responded. Feel free to try if you wish.

    As for the rest, try reading this:

    http://en.wikipedia.org/wiki/Fair_use

    –and this–
    http://www.eff.org/cafe/gross1.html

    –and this–
    http://www.eff.org/IP/eff_fair_use_faq.php

  26. Paul Freedman

    Shmarya, taking a look at the first source, you run afoul of the protection given the author and publisher re: “amount and substantiality of the portion used in relation to the copyrighted work as a whole”–you reproduced the whole thing. I’ll see if I can reach them for permission.

  27. Paul Freedman

    I dunno Shmarya, they don’t pick up the phones. Maybe there is an “implied permission” if they don’t respond.

  28. Paul Freedman

    Shmarya, I did reach them–the manager I spoke to disagrees with you. This may seem, sort of fascist–we all want information to be free–but you cannot have a free exchange of commercial information if the economics of commercial information are undermined by unauthorized duplication.

  29. Here’s how fair use works:

    1. The article is NOT copyrighted by Gilbert.

    2. It IS copyrighted by The American Spectator.

    3. It is PART, and not the whole, of the issue.

    4. The review is not fiction.

    5. Sales of the magazine will not be hurt by this posting.

    6. The author’s income is not negatively effected by its publication.

    7. The same holds true for the publication, which would need to demonstrate sales substantially lower than average for July/August to be “damaged.”

    8. The value of the article comes from Gilbert’s name, not the data, which is Dalin’s and other earlier authors Dalin used as sources. In other words, there is no propriatary information in the piece.

    9. Permission was sought, TAS did not respond. (Not some general “office manager” or seretary, but the actual person who approves rights.)

    10. The article is used in a non-commercial format, it is not sold.

    I welcome TAS’s “office manager’s” objection. Let her sue me if she believes she’s correct. She won’t though, because suits like this are not won.

  30. Now, if I were to attempt to include the article in a book, or reprint it in the Washington Post, I would have a tough case to make – unless there was timely news value in the public interest and TAS had not responded to repeated requests made over a reasonable amount of time to include the article.

  31. I should also note the posting of this article is done to shield the author from attacks made by DB and others who made those attacks (see the earlier post) without reading the article. Those attacks were largely personal in nature, and went to the status, reputation and professionalism of Gilbert. The only way to direct the conversation to what is important – and to defend Gilbert – is to put up the article, which I did. While this does not stop personal attacks against Gilbert, it makes those attacks far less plausible.

  32. Paul Freedman

    Shmarya, you are very stubborn. I understand what you are saying but I continue to believe that you do not grasp that copyrights in a composite publication are divisible–the article itself is copyrighted and you reproduced the entirety of the article. You violated the copyright *of the article*.

    That is, the very posting of the article for free dissemination is very arguably an a priori violation of the copyright regardless as to whether there are subsequently demonstrable losses comparing monthly revenues. Suits like this usually are won by plaintiffs when they get to court–as demonstrated in Apple’s related suit not of copyright but of proprietaray information, the leaking of product information on a website. The analogy, again, is the posting of an entire mp3 from an album: that mp3 is protected.

    Your good intentions to shield Gilbert are not material.

    btw, I believe the manager I reached was their copyright specialist. She says she has no record of you contacting American Spectator.

  33. Paul Freedman

    In other words, copyright covers reproduction, not only sales, and the extent to which any one copyright-protected article is reproduced determines fair use or no. There are tangential issues–failure to protect copyright might be, as in trademark law, a precedent for placing a publisher’s copyrighten material in the public domain. re: flat sales: the case would be made that absent reproduction of copyright-protected material sales could have been higher (for example had you noted the article but not reproduced it–readers might have then gone out and bought the material or a subscription).

  34. Anonymous

    Interesting Shmaya; the fact that you asked permission again and again and were continously not granted it somehow becomes permission.

    I wonder how you would react if a “charedi”
    used this argument.

  35. Paul –

    Copyright has no bearing on fair use. All it shows in this case is that Gilbert is not damaged by this type of reprint.

    ~~~~~~~~~~~~~~~~~~

    My argument is NOT that no answer = permission. It is as I have repeatedly stated: 1. This is fair use and, 2. Nonetheless, I tried to contact them for a link or to make an arrangement and they did not respond.

  36. Anonymous

    “btw, I believe the manager I reached was their copyright specialist. She says she has no record of you contacting American Spectator.”

    But they know now dont they, thanks Saul.

    “But of course the ***ISSUE*** here is the Pope, not fair use”

    Bwahahahaha. You screwed up this time and all your deflections wont help you in paying the fines and penalties that come along with something like this.

    Time to contact the copyright owner party and make sure they pursue this issue, make an example out of you.

  37. Paul Freedman

    shmarya–akshani habibi–copyright has EVERYTHING TO DO with fair use.

    The Copyright Office notes:

    “One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords.”

    OK?

    It continues:

    “This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” ”

    OK?

    Fair use is PRECISELY a doctrine evolved to determine when someone is or is not violating another person’s copyright.

    The entire article you reproduced here is copyrighted.

    One of the criteria for determining whether “fair use” is exceeded (and copyright violated) is:

    “amount and substantiality of the portion used in relation to the copyrighted work as a whole”

    The entire article is copyrighted: you reproduced the whole thing.

    If the article was NOT copyrighted you could hand it out in the streets for free, or sell it.

    Similarly, I believe that you have no expectation of commercial control of the material on this blog absent copyright.

  38. Paul Freedman

    Shmarya: note again, copyright (and fair use is an *exception* to copyright) covers the right to “reproduce” NOT SELL, to reproduce, a work. This is an important distinction. If you give away my copyright-protected work it does me no good that you do not commercially profit. And if you reproduce, the entire text of my copyright-protected article, you have exceeded the fair use exemption–and yes there would be the context of the relative privacy of the reproduction (a student paper) but in general I seem to remember that it is safe to keep excerpts (even in school papers) to about 250 words.

  39. Paul –

    These cases have been ADJUDICATED, get it? Case law, and all that.

    ~~~~~~~~~~~~~~~

    The manager should check her messages, if, in fact, what you write is true. I have documentation of the contacts.

    ~~~~~~~~~~~~~~~

    The issue here is the Pope and the Holocaust. That DB asks on his blog whether Dalin’s book is “out yet,” when he has refused repeated requests to read the book made over many months (it’s been out close to a year now), is very telling.

    We’ve discussed fair use quite a bit. From now on, the topic returns to anti-Church bias among Jbloggers and the Church during the Holocaust.

  40. Paul Freedman

    Is copyright routinely violated on the internet? Yes.

    Do people believe they have control over uncopyright-protected material when they don’t?

    Yes.

  41. Anonymous

    Actually, for those who can read your posts, you list the fact that you sought permission but were denied it under a list of things that you describe as how fair use works. the only way to make sense of this is that you somehow thought silence implies assent, which it sometimes may as to when a person has a duty to speak; but would not here where TAS has no duty to reply.

    It is simply amazing that you can deny your own posts. As for damages, a person can get, at the least, an injunction even absent damages and also can get, I believe, attorney fees.

  42. Paul Freedman

    Anonymous: a cease and desist order would be likely–but it may not be worth it–as for all that case law, considering the basic misunderstanding here as to the connection between copyright and fair use, I wonder. But hey, I have a list of articles from the password protected Commentary section I’d like scanned and reproduced. Could save some money.

    The Church, of course, can take care of itself.

    Last time I looked nobody was firing rockets at the Vatican while the world deplored the Vatican’s “disproportionate response”.

  43. I do not “deny my own posts.” You clearly do not process information well. You also do not understand copyright law or fair use. Try hauling you butt over to your local ACLU or law school and ask.

    Now, again, this post is about the Church, the Pope, the Holocaust and Jbloggers. Not about fair use.

  44. Anonymous

    Actually, I am a member of the New York State Bar, and seem to remember having went to law school for three or so years. I’ll decline your invitation to go back to law school; I had enough of that.

    Exactly what qualifies you to render legal opinions on fair use? Pray tell.

  45. Specializing in media law? First Amendment issues?

    Please.

    And you practice what exactly? Torts? Criminal law?

    I think the fact that TAS was contacted by me and by others and has not responded in any way, including to ask me to remove the posting, speaks much louder than the drivel spewing from an anonymous “attorney’s” mouth.

  46. Anonymous

    Oh well; the fact that I am anonymous is less important than the fact that I graduated
    well into the top 5 per cent in my law school.

    As for drivel; nothing in my comments was vulgar which is more than can be said for your replies.

    Once again, silence does not signify much. TAS just may not care a whole lot about whether you infringe on its copyright or may be preparing a complaint.

    The fact that you trespass on my property against my will does not make it legal even if I do not sue you, especially if I have No Trespassing signs posted over my propery which is the equivalent of my bothering to copyright my material in the first place.

    Put i sthis way; the government does not prosecute ebvery case of welfare fraud even when it knows about it. It simply does not have the resources. That does not mean the defrauder has not broken the law both morally and legally. Your proof is logically meaningless.

  47. Anonymous

    That should read “Put it this way” and “every case.”

  48. Anonymous

    “drivel spewing”–Shmarya–bingo-you have yet to acknowledge that the clear meaning of the copyright guidance provided by the Copyright Office is that fair use is a doctrine modfiying copyright infringement.

  49. Anonymous

    Yes; of course; fair use defines when you may use copyrighted material without permission. However, the Copyright Office gives specific examples and limits use in reviews to excerpts of the article; not the whole article.

    Read the comment I put up with the exact language of the guidance given by the copyright office. It is clear that there is a limit to fair use and scanning and posting a whole copyrighted article is simply not within any fair reading of the examples given by the copyright office. If you think it is then reply by showing me the eact language which fairly makes you thing it is or the case law if you have any.

    One thjing I know about law is that there are always possible surprises. I am willing to learn if you can show me why I am wrong.

  50. gross

    I read a powerful book that delineates the Vatican’s role in anti-semitism that lead to the Holocaust. The book is well-researched by a noted author who spent painstaking years sifting through formerly-secret documents stored in the Vatican archives. I urge you to read this book so you will understand the role of the Catholic church in promoting vicious anti-semitism that paved the way toward the eventual destruction of European Jewry.

    http://www.amazon.com/gp/product/0375406239/sr=8-1/qid=1154029363/ref=pd_bbs_1/102-5855080-3219325?ie=UTF8

  51. Not sure if the above link can be copied and pasted. Try clicking on the word “gross”.

  52. Paul Freedman

    Anonymous: I am agreeing with you–not agreeing with Shmarya’s calling the point “drivel”–this is my point too, I was going, bingo, once again Shmarya unfortunately resorts to invective. I think the Copyright guidance is clear and have been remarking that Shmarya should take seriously the probability that fair use is only a doctrine that has to do with copyright-protected material, and that putting up a copyright-protected article goes against fair use. Sorry for the misunderstanding.

  53. Paul Freedman

    As to the Vatican:

    Joe Venuchi is a guy who always has tall-tales to tell, usually involving himself and he tells them to his buddy Mendele Cohen at the local bar every Saturday evening after Shabbos. One day, when Joe is going on, “and then I told Madonna, Madonna, what’s a nice girl like you doing singing about sex all the time…” and Mendele can’t take it anymore. “Joe, you are so full of it, you are always telling these ridiculous stories!”
    “Ridiculous?” says Joe. “Madonna’s performing at the Garden right now, let’s go and see.” So they go out and hop a cab and go to the Garden and Joe whispers to the doorman, “Joe Venuchi and friend,” and they let him in and put him in the front row and Madonna stops singing and points to him and says, “Hey Joe, you know, I’ve been thinking, I’ve got to tone down my act now that I’m into kabbalah!”

    Mendele’s impressed but still the next week when Joe goes, “so I was saying to Bill Clinton, you know you weren’t such a bad…” and Mendele explodes again, “Look, Joe, maybe you know a singer, but Clinton?”

    So Joe goes, “Hey, he’s appearing at a fund-raiser of a cousin of mine,” and so they hop a cab, down to the subway, to the train, out to the Island, get another cab, and show up as the party’s breaking up. Clinton sees Joe and says. “You know Joe, no I wasn’t a bad President, howya doin?

    Mendele’s impresssed but when the next week they’re at the bar and Joe says, “Mendele, you’re a Jewish guy but I like you. As I told the Pope…”

    “Wait a minute!” goes Mendele. “Maybe you know a singer, maybe you know an ex-politician, but Joe, don’t tell me you know the Pope!!!!”

    “OK,” says Joe. “Tell you what, let’s go–we’ll hit Easter Mass.” So they hop a cab out to the airport fly all evening, transfer at London, land in Rome the next morning and hop a cab to St. Peter’s Square.

    The place is packed. Thousands upon thousands of the Catholic faithful waiting in hushed expectancy. “Wait a minute,” sez Joe and disappears. Ten minutes later he’s back. “Listen, I can see the big fella but I don’t have enough pull to get you in, but we’ll wave to you.”

    And he disappears again.

    Ten minutes later, in the distance, the Pope appears on the porch. The crowd goes nuts, chanting and applauding and crying, and there, next to the Pope, there’s Joe and they are both waving directly at him, Mendele, pointing and waving!!

    Mendele can’t believe it, it’s so far away, maybe it’s not really Joe, so he turns to the guy next to him, whose cheering with wife and three little children in tow, tears are streaming down the guys cheeks he’s so moved, and Mendele says to the guy, “Tell me who’s standing on the porch??!!!”

    “Well,” says the guy, “I don’t-a know who thatta strange man is in the cap and funny hat, but the man next to him, ahhh, thats-a Joe Venuchi!”

  54. Paul Freedman

    cape and funny hat…

    badabing!

  55. Neo-Conservaguy

    Abracadabra, the light is yanked away from the actual topic and the comments become a pissing contest about legal interpretation. When you can’t argue the facts, attack the opponent, divert attention to different subject – anything to get away from the original subject.

    It saddens me to see smarter folks like Paul Freedman wasting their and everyone elses’ time with this distraction. Come on, Paul, you’re better than this – deal with the original thesis and let Shmarya handle his own legal issues.

  56. Paul Freedman

    Neo-Conservaguy: I am more interested in the legal issue and Shmarya’s inability to ever admit he made a mistake than I am in Shmarya’s crusade to defend the honor of a late Pope. The legal issue of copyright and the commercial translation of thought and creation to a legally protected entity within the Western system of law and contractual obligation is inherently fascinating–patents are now available to specific sequences of DNA when those sequences are used in medical treatment. I am not aware that Jews, here on this site, or generally, are obsessed with Catholic anti-Semitism. This is not a conspiracy to divert attention away from the actual topic, a topic I personally have no interest in right now as—my attention was solely focused on what I took to be the blatant violation of publication rights, it turned my head, and it had been commented on–and Shmarya refused to acknowledge the limitations of fair use and so that thread grew. The Vatican is doing just fine. Israel ain’t.

  57. Paul Freedman

    The house is on fire.

  58. Paul Freedman

    Neo–let me put it this way: you say we need to discuss the content of this article–I drop by and see the article and I say, you know, as worthwhile as the content may be, this blog, any blog, does not have the right to make its content more interesting or more convincing or by reproducing somebody else’s protected and private property (and legally it is property) without permission.

  59. Anonymous

    The more interesting point is the refusal to admit a mistake even, as here, when the mistake was innocent and could be easily corrected. This may shed light on why other entities, so criticized here, cover up their mistakes, even when it is obviously harmful and counterproductive.

  60. huh?

    Paul,

    Can you explain the joke to me? I don’t get it.

  61. Paul Freedman

    Shmarya: Amy’s first reaction when I said you had asked for permission to reproduce the scans was that she had no record of such permission being requested but that such permission was routinely granted. Maybe yes, maybe no. Maybe even your original request fell through the cracks–had you persisted in specifically asking for reproduction permission you may well have received a yes.

    Regardless, fair use is a doctrine, yes, that relates to an EXCEPTION from the copyright holder’s holding of reproduction priviledges. The convention of following fair use by using excerpts of a certain length and noting sources is taught in academic research. Reproduction of an entire article without permission, an article that may have fair use excerpts from other material, goes beyond fair use. You need that permission. If they do not give you permission or just don’t get back to you, you are stuck.

    I would add that people who want to read something in a publication, yes, go out and buy it. Support the publishers. Pay for CD’s. Buy DVDs. If commercial concerns fell that their purposes are served by authorizing “free distribution” of content that is their call.

    I do believe that you were wise to accede to their requests to remove the material.

  62. Paul Freedman

    huh? although a bit of a shaggy dog tale it is a hysterical joke, really! And it can be told endlessly to produce gales of merriment using your own examples–maybe I didn’t tell it as well as it can be.

    The basic joke is that here is Joe Venuchi, who appears to be a complete name-dropping blowhard. He’s always telling how he met this celebrity or that–here he is sitting in a local bar with Mendele, they’re just guys, and his tales are always him doing these incredible things with incredible people. But Mendele takes it until he can’t take no more and challenges Joe.

    So you now have two examples in a row where Joe proves, no, he knows these people:

    first, it turns out he knows an actor/singer/rock star performer and they know him

    next week it turns out he knows a politician/ex-politician/ex-President

    Mendele is impressed but he still doesn’t believe it when Joe talks as if he *knows the Pope*–so,

    they travel to Rome (multiple stops)

    they arrive on the morning of Easter mass (describe how big the crowd is, how huge, how expectant, how reverential) Joe disappears and immediately returns and tells Mendele, look I can’t get you in but the Pope and I will wave to you [and this will prove that Joe really knows the Pope].

    So Joe disappears and then ten minutes later, waaayyy in the distance, so he can just make them out, yup, Joe and the Pope are standing on the portico where the Pope gives his Easter blessing and they are both pointing and waving to Joe [can it be true? Joe *does* know the Pope] and all the people are going bonzo, weeping, praying, cheering.

    Mendele still can’t believe his eyes, they are so far away, maybe it isn’t Joe, maybe this is just a ritual gesture, maybe it isn’t even the Pope so he asks the guy next to him [who is rapturously moved by what is happening] “who is standing on the porch?”

    But the guy answers “I don’t-a know who thatta strange man is in the cape and funny hat, but the man next to him, ahhh, thats-a Joe Venuchi!”

    the “strange man in the cape and the funny hat” or the “funny man in the cap and that silly hat” is the POPE. (in his ceremonial robes and priestly headgear).

    The Italian guy however doesn’t even know who he is, but the man standing next to him, thats-a Joe Venuchi.

    By extension, the guy is really cheering (waiting for?) Joe Venuchi.

    By extension, the entire crowd is really cheering for, waiting for, Joe Venuchi.

    Joe Venuchi is the most famous man in the world!!!!

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