Pessach and Shur-Ofry on Copyright and the Holocaust @HujiLawOfficial

Guy Pessach and Michal Shur-Ofry, both of the Hebrew University of Jerusalem, Faculty of Law, are publishing Copyright and the Holocaust in the Yale Journal of Law and the Humanities. Here is the abstract.

This article explores the interface between copyright law and the Holocaust. The Holocaust’s duration and scope, its occurrence in midst of the twentieth century with photography and film technologies already available, and its setting at the heart of Europe, yielded countless documents, diaries, notes, memoirs, musical works, photographs, films, letters, and additional artifacts. On the victims’ part, many of those items — including secret archives comprised at various ghettos, music composed in concentration camps, and personal diaries — manifest an explicit act of real-time historical documentation for future generations. On the perpetrators’ side, some materials were produced as a result of organized documentation, others — such as Joseph Goebbels’ diaries or Hitler’s Mein Kampf — comprise records of prominent figures in the Nazi regime. Numerous Holocaust-related materials are still subject to copyright protection. Yet, the impact of copyright law on the memory of the Holocaust remains largely unexplored. This article engages in a first systematic exploration of the copyright-Holocaust interface and presents a twofold argument. First, we demonstrate that copyright law plays a heretofore-unnoticed role in shaping the collective memory of the Holocaust. Second, on a normative level, we argue that the prevalent narratives underlying copyright law, as well as ordinary copyright doctrines, do not comfortably apply to Holocaust-related materials, and that this state of affairs yields socially undesirable consequences. The latter include, inter alia, victims’ works created with the explicit goal of documenting the Holocaust that may remain in the file-drawer due to copyright concerns, as well as ordinary copyright protection applying to infamous Nazi materials, thus providing their owners with certain influence over the Holocaust’s narrative. By closely examining various case studies, we analyze the principal tensions between the copyright regime and the Holocaust and offer several concrete recommendations concerning the application of copyright law to Holocaust-related materials. On a more general note, our analysis sheds new light on copyright’s impact on collective and intergenerational memory.

Download the article from SSRN at the link.

At Cardozo: An Important Discussion on the Holocaust, Genocide, and Human Rights, October 30, 2014

From the Cardozo School of Law:

"On the Implications for Contemporary Law and Legal Scholarship on Vichy and Third Reich Judicial Discourse"

Thursday, October 30, 2014, 6 - 8pm
Benjamin N. Cardozo School of Law
55 Fifth Avenue, Room 102

New York, NY 10003

Please RSVP to cardozophhr@gmail.com

On October 30th, the Holocaust, Genocide and Human Rights (HGHR) Program at Benjamin N. Cardozo School of Law presents a discussion "On the Implications for Contemporary Law and Legal Scholarship of Vichy and Third Reich Judicial Discourse." The event will begin at 6 pm at 55 Fifth Avenue, Room 102. There will be a reception in the lobby following the event.

The discussion will involve close readings of what passed for legal discourse in Vichy France and Nazi Germany, appraising its significance for today's legal scholarship, judges, and interpretive theory. Among specific developments to be discussed are a German court's recent description of circumcision in Jewish ritual as causing "severe physical injury," the relationship of law and morals generally, and the implications of Vichy's legal and academic discourse for the incipient renewal of anti-semitism in France.

The speakers are Prof. Otto Pfersmann, Prof. of Law, Paris-1, Pantheon, Sorbonne, and Prof. Richard Weisberg, Floersheimer Prof. of Constitutional Law and Founding Director, Cardozo Holocaust, Genocide and Human Rights Program. 

Please RSVP to cardozophhr@gmail.com

Update On Conference on Blood Libel To Be Held November 14-15, 2013, at Cardozo Law School

On Nov.14-15, the Cardozo Law School Program on Holocaust Human Rights Studies, and the Law & Humanities Institute, will sponsor a conference on the tragic history of the "Blood Libel", in which Jews have been accused across the millennia of killing Christian children to use their blood in the Passover ritual. Originating in England early in the second millennium, the libel spread eastward to Russia, and it is not unknown in the United States and Canada.  

One of the most infamous of these libels was the Mendel Beilis case in the waning days of Tsarist Russia, and it is the 100th anniversary of the near-miraculous acquittal of Beilis that occasionalizes this conference. The scholarly centerpiece of our discussions will be Hannah R. Johnson's influential recent book, BLOOD LIBEL, a complex history of the phenomenon, and Prof. Johnson of the U. of Pittsburgh will speak; the literary centerpiece will be 
Bernhard Malamud's fictional rendering of the Beilis case,THE FIXER, which will be discussed widely by various speakers. Panelists include the grandson of Beilis and attorney Jeremy Garber, who have a major bone to pick with the novel; Prof. Vivian Curran of the U. of Pittsburgh Law School; Prof. David Fraser of the U. of Nottingham (UK); Prof. Jeffrey Mehlman of Boston U.; Prof. Harriet Murav of the U. of Illinois; Prof. Sanford Levinson of U. Texas Law School; and Prof. Richard Weisberg of Cardozo.


The event takes place in the Moot Court room of the Cardozo Law School,   55 Fifth Avenue,  NYC (12th and Fifth). The Thursday sessions, which include a lunch for all in attendance, are from 8:30-5:30; and the Friday sessions are from 9-12:30.


For further details and to reserve for the symposium, contact Johanna Rubbert at johannac.rubbert@gmail,com or Alyssa Grzesh, agrzesh@gmail.com

Law and Humanities Institute and Cardozo Law School Sponsor Conference On History of Blood Libel

Upcoming: a fall conference sponsored by the Law and Humanities Institute and the Program on Holocaust Human Rights Studies, Cardozo Law School. Here is the description of the program from the Cardozo website:

On Nov.14-15, the Program on Holocaust Human Rights Studies and the Law & Humanities Institute will sponsor a conference on the tragic history of the "Blood Libel", in which Jews have been accused across the millennia of killing Christian children to use their blood in the Passover ritual. Originating in England early in the second millennium, the libel spread eastward to Russia, and it is not unknown in the United States and Canada. One of the most infamous of these libels was the Mendel Beilis case in the waning days of Tsarist Russia, and it is the 100th anniversary of the near-miraculous acquittal of Beilis that occasionalizes this conference. The scholarly centerpiece of our discussions will be Hannah R. Johnson's influential recent book, BLOOD LIBEL, a complex history of the phenomenon, and Prof. Johnson of the U. of Pittsburgh will speak; the literary centerpiece will be Bernhard Malamud's fictional rendering of the Beilis case,THE FIXER, which will be discussed widely by various speakers. Panelists include the grandson of Beilis and attorney Jeremy Garber, who have a major bone to pick with the novel; Prof. Vivian Curran of the U. of Pittsburgh Law School; Prof. David Fraser of the U. of Nottingham (UK); Prof. Jeffrey Mehlman of Boston U.; Prof. Harriet Murav of the U. of Illinois; Prof. Sanford Levinson of U. Texas Law School; and Prof. Richard Weisberg of Cardozo.
For further details and to reserve for the symposium, contact Johanna Rubbert at johannac.rubbert@gmail.com

François Hollande On the Holocaust

From Richard Weisberg

The following Israeli editorial aptly summarizes both the excellent recent statement about Vichy by France's new President and some of the debate that, predictably, has followed. The clarity of Pres. Hollande's statement reiterates, at some distance, the findings of scholars such as myself, about France's responsibility for the wrongdoing against Jews. The Commission in Paris that now administers individual restitution for Vichy's victims has also been mentioned in news stories, eg the NYT on 7/16. I have been over-seeing that Commission's work for over a decade.It is much to France's credit that they are, in different ways and after many decades of self-congratulatory denial, coming to grips with this sad history.However, there are voices of revisionism, some from surprising quarters.I look forward to hearing from you if you have views on these developments.Regards, Richard Weisberg 

Subject: today editorial, 7/31 "Haaretz"

 Whose crime is it?

Schoolteachers have long complained about the difficulties of teaching this chapter in French history. 'The Holocaust is not the history of the Jewish people; it is history, our history,' said Hollande.

Adar Primor | Jul.31, 2012

"The truth is that the crime was committed in France, by France." One sentence, a few simple, clear words, but how loaded. And how, it turns out, controversial. Still.
President Francois Hollande, under 100 days in the Elysees and has already notched up one of the most historic, powerful, and resonant speeches ever heard in the French Fifth Republic.
That sentence became the focus of the speech he gave last week at a ceremony marking the 70th anniversary of the Vel d'Hiv roundup. It was the largest Aktion carried out on French soil. In July 1942, more than 13,000 Jews from Paris and its environs were arrested. The Jews were concentrated in the Winter Velodrome and from there, most were sent to their annihilation in Auschwitz.
"The crime was committed in France"? Clearly. "By France"? Absolutely not. So it was claimed, once again, following Hollande's speech. For decades the French looked in the mirror and saw reflected in it a nation of a great revolution, a nation of enlightenment and human rights, a land of refuge and emancipation. When they skipped forward, historically, to World War II, the reflection in the mirror was that of General Charles de Gaulle and Free France, of the Resistance and Righteous Gentiles.
For decades the history of France was blurred, concealed, or even denied, until it was forgotten. But in 1995 President Jacques Chirac decided to shatter the deceitful mirror and put an end to the amnesia. He accepted responsibility for the crimes of the Vichy regime, which collaborated with the Nazis. He did it in France's name. Chirac sought "to kill" the old myth.
Hollande, 17 years later, came to verify the kill: France is a country of "anonymous heroes," who are responsible for saving 75 percent of France's Jews, Hollande noted, justly. But France, he added, also initiated the Vel d'Hiv hunt, organized it, and sent its citizens to their deaths.
One cannot, therefore, accept any longer the claim which holds that the Vichy government was nothing but an executive branch of the Nazis that was imposed on France. The horrific crimes were perpetrated by French individuals, in the name of the French people and France. This collective must take responsibility.
Again and again Hollande repeated in his speech the words that in his view comprise historic justice: "truth" (which there is an obligation to state ), "oblivion" (which he vowed to combat ), and "memory" (which he undertook to nurture ). His words take on special meaning in view of a new poll that has found that 42 percent of the French (and 60 percent of young people ) are unaware of the Vel d'Hiv raid.
Schoolteachers have long complained about the difficulties of teaching this chapter in French history. Hollande addressed them in his speech: "The Holocaust is not the history of the Jewish people; it is history, our history. There must not be a single institution in which it is not learned in full."
Hollande vowed to fight "with the greatest determination" against anti-Semitism and "all manner of historical distortion, relativization of the Holocaust and attempts to mar its singularity."
The importance of Hollande's speech is likewise inherent in its message, namely that morality has no political borders. Hollande created an affinity between himself and the right-wing president Chirac, and dissociated himself from the legacy of his mentor, Francois Mitterrand, who in his youth had joined the Vichy regime.
"The truth never has the power to divide, only to unite," Hollande said in his speech and thereby revealed his naivete. The far right lashed out at him for "besmirching France's image" and demanded that he "stop blaming the French." Similar tunes have also been heard in circles that are considered moderate. Bruno Le Maire, the former agriculture minister under Nicolas Sarkozy, who is running for his party's leadership, attacked "the grave mistake of the president, who confused the French state (Vichy ) with France." Henri Guaino, Sarkozy's senior adviser, announced that he is "shocked" by Hollande's declaration. "His" France, after all, resided in London during the war, not in Vichy.
Hollande's speech is an historic milestone. But as it turns out collective French responsibility still has its work cut out for it.

Naziism and the Geert Wilders Trial

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published Who’s the Fascist? Uses of the Nazi Past at the Geert Wilders Trial as University of St. Thomas Legal Studies Research Paper No. 12-10. Here is the abstract.

This essay looks at how, during his trial, Geert Wilders and his opponents used references to the Nazi era – including but not limited to the Holocaust – to frame debates over Muslim immigration, Wilders himself, and the acceptability of hate speech trials. The Wilders trial is especially interesting because each side sought to call the other a “fascist.” For Wilders, the Quran was a fascist book, an Islamic Mein Kampf. To his opponents, Wilders was a “prototypical” fascist, one who spoke to the gut not the mind. But perhaps the strongest use of the Nazi past involved victims. If a well-established Jewish community faced the Nazis largely without the support of their fellow Dutch citizens and today faces continued anti-Semitism, what should Muslim newcomers expect? On a broader level the multiple references to World War II, fascism, and the Holocaust in the Wilders case show how nearly seventy years after the Allied forces declared victory the Nazi past continues to play a major role in European discourse over hate speech laws.

Download the paper from SSRN at the link.