Best-selling author Naomi Ragen has agreed to drop 29 sentences from a book after reaching a compromise agreement at the Supreme Court over a plagiarism suit filed by ultra-Orthodox writer Sarah Shapiro. The accommodation, proposed by the Supreme Court, was accepted Wednesday.
Jerusalem District Court Judge Joseph Shapira ruled in December 2011 that Ragen had knowingly copied sections of her book "Sotah" from a book by Shapiro. Ragen appealed to the Supreme Court against the judgment finding her guilty of plagiarism. (Shapira, who has since retired from the bench, is now the state comptroller.)
The compromise recommended by the Supreme Court included vacating the district court's ruling, and Shapiro is now required to return part of the compensation she previously received to Ragen (not including court costs and lawyers' fees). Ragen agreed to the justices' suggestion that she donate the NIS 97,000 Shapiro was repaying to charity.
In addition, Ragen agreed that if in the future she publishes a new edition of her book "Sotah," she will not include some 29 sentences that were in dispute in the case.
"This is a nightmare that has ended. I am very happy that the truth has come to light," Ragen told Haaretz Thursday. "What was important to me was always my good name. I fought so hard for women and against all sorts of distortions in the religious world, and when they accuse me of such a thing and slander me, it is an ironic tragedy. Every time my grandson saw in the newspaper that his grandmother was a thief ... it is impossible to describe such a feeling when you see how it affects the family," she said.
Plaintiff still claiming victory
Attorney Gilad Corinaldi, who represented Shapiro in her suit, also claimed victory and has his own interpretation of the verdict. "I am happy that justice was done," he said. "My client's request was accepted completely. Ragen will delete whole sections from 'Sotah' in all languages and all future editions. Naomi Ragen spent almost NIS 250,000 of her own money, and she didn't receive a single cent in return. The injunction remains in force and the monetary compensation that was ruled against her remains in force, and with her agreement. The stain and the disgrace were not removed," Corinaldi noted.
In her appeal to the Supreme Court, Ragen's attorneys pointed out a number of legal flaws in the original ruling. Ragen was represented by the law firm Lieblich and Moser. Her attorneys, Tamir Gluck and Yaron Hanin, argued that the verdict's stringent approach to intellectual property rights "deals a deathblow to artistic freedom and to authors' ability to create and enrich literary culture," while also violating Israeli court precedents and, in some cases, even the language of the law. "These legal mistakes are devastating," they added, "not only to the appellant but to authors, creators and artists in general" - in addition to the personal harm to Ragen herself.
In her appeal, Ragen's attorneys wrote that the initial verdict had destroyed her life. "The ruling branded her a thief and shattered her honor, both as a person and a well-known and respected author, both in Israel and worldwide," it said.
"I knew I was innocent, that I didn't do anything illegal, and that every writer does exactly as I did, but all my friends, my synagogue, my rabbi, the children and friends of the children ... I finally feel I can continue to use my strength for important things, to continue the war against all the things they are doing in the Haredi world against women. They will not succeed in breaking me. I can continue with my head held high and with strength in my heart," Ragen told Haaretz.
"What Sarah Shapiro's lawyers have said cannot change the facts, and certainly not the [court's] ruling," opined Gluck and Hanin. "The bottom line is that Mrs. Shapiro leaves the court without receiving even one shekel in compensation. The entire compensation Shapiro received, she must now write a check and return. Author Ragen expressed her agreement that the refund will be in the form of a donation to Yad Sarah. The vacating of the incorrect ruling of the district court and the return of the entire compensation correct, finitely, the illegitimate injustice caused to Ragen," they added.
The attorneys' appeal also accused the court of "sensationalist" rhetoric that magnified Ragen's offense. Even if the court's findings were correct, it said, an ordinary person reading the verdict's heated language would never guess that her offense consisted of, at most, "transformative use of 29 sentences, which constitute less than 0.18 percent of the work."
Moreover, it said, the verdict contradicted a plethora of rulings from other Western countries, where courts have opted for a far less sweeping interpretation of copyright protection in order to encourage creative work. Among other examples, it cited cases in the United States and England in which similar copyright infringement suits against famous authors were rejected - one in Britain against Dan Brown, author of "The Da Vinci Code," and one against J.K. Rowling, author of the "Harry Potter" series, in New York.
'Work it out between yourselves, and we can all go home'
Noe Shalev-Slyomovics, an attorney specializing in intellectual property rights from the law firm Gershoni Slyomovics Advocates, tried to sort out the interpretations from the two sides: "By law, the defense of copyright does not include an idea, but only its expression," said Slyomovics. "In opposition to cases of clear plagiarism of an entire character, or of a central plotline in the story, then in most of the cases in dispute it is not possible to put your finger on the exact line where the idea ends and the expression starts.
"In this case, the Supreme Court understood that a decision on this matter would not be of significance to our legal theory and for similar cases in the future, and therefore decided to bring the sides to an agreed-upon compromise," he continued. "Such a compromise is common in intellectual property cases since they are built on satisfaction, at least in part, of the subjective feelings of the author, feelings which motivate these conflicts more than the financial motives."
In this case, the plaintiff - who claims she had a significant part of her novel plagiarized - receives the deletion of the similar sections. The defendant, meanwhile, who claims the similar parts were not significant to her work, agrees to delete the very same sections she claims are not significant, explained Slyomovics. In a similar fashion, it is accepted that the side being sued will give a sum of money to charity - and in this fashion the plaintiff feels she is not motivated by greed but is only contributing to society. And the defendant pays more readily since she also feels she is not paying compensation to the plaintiff but is paying for something important in her eyes. "It is not pleasant to say so when two writers are clashing over their creations, and when two of my colleagues whose talent is well known are handling such a complicated case, but what the Supreme Court wrote between the lines is: 'Leave us alone, it is not really interesting. Work it out between yourselves and we can all go home,'" concluded Slyomovics.
Shapiro first submitted her claim against Ragen in 2007. Both writers come from America's Orthodox Jewish community; Shapiro lives in Jerusalem and writes in English. In 1990, Shapiro sought Ragen's opinion about her debut novel and the two met. Subsequently, Shapiro claims she was surprised to find sections from her book "Growing with My Children" in Ragen's "Sotah." Shapiro claimed NIS 1 million in damages.
Shapiro was represented by the Corinaldi law firm, with Gilad Corinaldi and Talya Grinstein serving as her attorneys. In his response to the appeal of Shapira's 92-page ruling, Corinaldi presented a comprehensive examination of the case, written after four years of hearings that included testimony from many literary experts. The court had unambiguously rejected Ragen's claim that the plagiarism was "unintentional" or "by mistake," deeming this claim unreasonable and lacking all credence, he said.
In the original ruling Judge Shapira said that the plagiarism was "tantamount to a premeditated act," saying Ragen acted knowingly and copied work created by the plaintiff. The court also relied on testimony furnished by Ragen herself. Ragen, the court noted, "testified that work written by the plaintiff served as 'raw materials' for her, and that her method of writing is based on drawing from a 'well' and 'imagination' in ways that include the works of others, including those rendered by the plaintiff."
In a separate and unrelated case, the Supreme Court had ruled in January 2012 that Ragen did not plagiarize or infringe on the copyright of the late writer Michal Tal. The court's opinion had been sought by Ragen after the Jerusalem District Court threw out the 2007 complaint, filed by Tal before her death, and the lack of interest on the part of Tal's heirs to pursue the matter. The district court did not rule on the merits of Tal's claim.
Tal filed a suit claiming that Ragen had used material from a book Tal wrote called "The Lion and the Cross" in Ragen's 1998 best seller "The Ghost of Hannah Mendes." The suit was dismissed in 2010 after Tal's death. However, her heirs consented to have the Supreme Court weigh in on the matter. The Supreme Court ruled that there was no basis whatsoever for Tal's complaint, but the panel of justices - headed by then Supreme Court President Dorit Beinisch - did say the lawsuit had been filed in good faith "and in genuine and candid faith at the time in the justice [of her claims]."
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