Tuesday's Thoughts on the Daf - Bava Kamma 93

Bava Kamma 93a contains a reference which (in my own narrow minded view of the world) validates my philosophy on dealing with my children's problems.

On 93a, R' Yitzchak states "woe to one who cries out, more than the one who is the subject of the outcry." The gemara supports this by citing to a beraisa which learns from Shemos 22:22-23 that Hashem will punish both the one who complains and the one who is complained about. The gemara finishes by stating that the one who does the crying is the one who will be punished first.

When dealing with my children and their occasional penchant to tattletale on each other, I try to teach them not to tell on each other, unless the subject child is doing something dangerous or is otherwise physically harming the "teller." The method is simple - if you are going to tattle on him/her, both of you are going to get punished - do you still want to tell me ...?

I'm glad to see that R' Yitzchak backs my philosophy on child rearing...

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My Monday Musings on Sports and Matzah

As regular readers of this blog are aware, the Monday post is usually devoted to sports with highlights and analysis of the Max Kellerman show which formerly aired on 1050 ESPN Radio. Although Max has resigned from 1050 and has not yet resurfaced on the NY area airwaves, I have decided to continue the tradition of linking sports to Torah which I believe was an undercurrent of the Max Kellerman show.

As anyone with electricity is aware, the country is in the midst of March Madness, when average Joes and Jills with no connection to the 65 colleges in the NCAA Tournament will suddenly develop an affinity for various schools which they did not attend. For me, I can recall many a March night watching or listening to the NCAA broadcast, hoping to see the St. John's Redmen (now Redstorm) advance in the dance. While the program has declined in recent years, I still root hard for them when they are in the Big East Tournament, hoping against hope that they would earn the automatic bid and punch a ticket to the dance. Much like my hockey years in my youth, I am left disappointed when the Johnies don't make it to the NCAA tournament. At least this year they played with some fire despite massive injuries and had some wins against quality opponents down the stretch. Still, the season did end with a loss to the Richmond Spiders in a third rate tourney.

Speaking of the season ending with a loss, I heard an interesting statement during the TV broadcast of the end of the Oklahoma game yesterday. The commentator said that it was sad that Blake Griffin's college career would end with a loss. However, when you make the NCAA Tournament, every team's season ends in a loss with the exception of the National Champion. This is in stark contrast to the end of the NCAA football season when thirty some odd teams are crowned bowl winners as reward for winning their "last game" of the season. [While some would have you believe that there is only one national champion in NCAA football, the BCS process is severely flawed and there simply is no true champion].

The comment about how close teams get, yet only one succeeds reminded me of a question that my 9 year old daughter Yael asked me on Shabbos - why does the dayeinu song say that it would have been enough for Hashem to bring us to Har Sinai and not give us the Torah? Had we actually gotten so close to the goal of receiving the ultimate book of knowledge, why would it have been enough for us?

I saw two completely different answers to the question which I would like to repeat in this post.

The Adir B'Melucha haggadah quoting the Yismach Yehudah compares the situation to a baby. A baby does not need to be taught to nurse as it instinctively knows how to get sustenance. The Torah and its mitzvos similarly sustain us, yet because of our historical actions we have deteriorated and cannot instinctively sustain ourselves from the Torah. Indeed, the Gemara in Yoma (28b) teaches that the Avos kept the Torah without having received it, because they knew what was to be done. The Gemara in Shabbos (146a) teaches that when the Jews reached Har Sinai their impurities were gone and they could say na'aseh v'nishma because they now instinctively knew the Torah before being told what was written therein.

Since the Jews were on such a high level when they arrived at Har Sinai that they instinctively knew the Torah laws without having yet received the written text, they could sincerely say that even had they only gotten to Har Sinai and not received the written Torah, it would have been enough, because they had returned to the level of instinctively knowing the Torah.

The other answer I would like to repeat is from the Chassam Sofer as quoted in the Chassam Sofer haggadah. He explains that the word nesinah as used in the line in dayeinu is very telling. The root nassan is generally used to describe the giving of a present. We see that Moshe was given Torah as a present from Hashem in the Gemara in Nedarim 28a which writes that the verse in Shemos 31:18 "Moshe was given when he finished talking to Him" teaches that Moshe kept forgetting the Torah he had learned until it was given to him as a gift.

This is the meaning of the dayeinu. Had Hashem brought us to Har Sinai and not given us the Torah as a present it would have been enough for us, because by all rights we should have been made to earn the Torah. However, since it was given to the Jews as a gift, we say an extra special thank you by mentioning it in dayeinu.

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Sunday Night Suds - Samuel Adams White Ale

This week's Sunday Night Suds review looks at another of the "spring ales" the Samuel Adams White Ale.

As I discussed in my post on the Redhook Brewery's Copperhook Ale (reviewed here

http://kosherbeers.blogspot.com/2009/03/sunday-night-suds-redhook-copperhook.html ) the typical spring ale is one which is light in color with a citrusy tang and light carbonation). Although the good folks at Beer Advocate have not yet defined the term "spring ale", I am confident that when they do create such a category they will adopt my definition. Well, maybe confident is too strong a word, but I would like to hope that we see things the same way.

Much like the Blue Moon Rising Moon Spring Ale (reviewed here http://kosherbeers.blogspot.com/2009/03/sunday-night-suds-rising-moon-spring.html ) the Samuel Adams White Ale (their spring seasonal variety) starts with a wheat beer base. They then add some spices which are not listed in detail on their label. However, the SA website indicates that the flavorings include orange and lemon peel, dried plum, grains of paradise, coriander, anise, hibiscus, rose hips, tamarind, and vanilla.

Despite all the complex flavors listed above, the Spring Ale is remarkably drinkable and in no way resembles alcopop. The wheat ale color and carbonation are largely intact and the flavors infused into the brew process create a beer which could go with many types of lighter dishes. Personally, I think that it goes well with a sefer when preparing divrei torah to say over at the seder later this month.

Samuel Adams Spring Ale is under the Kosher Supervision of the Star-K. However, this is yet another Samuel Adams brew which does not have the certification mark on the label. If you would like to verify that the White Ale is on the LOC issued by the Star-K, please click here http://www.star-k.org/loc/kosher_letter_6635_bostonbeercompany.pdf.

To see what the experts on Beer Advocate think about the White Ale, please follow this link - http://beeradvocate.com/beer/profile/35/8297. As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

Finally, if you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

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Thursday's Parsha Tidbits - Parshas Vayikra

The following is a brief summary of two thoughts said over by R' Frand in his shiur this evening. I have attempted to reproduce these vorts to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

As Thursday was Rosh Chodesh Nissan, Rabbi Frand mentioned that the Mishkan was assembled on Rosh Chodesh Nissan. He first reviewed the chronology of the midbar period in which Moshe went up on Har Sinai to ask for forgiveness for the Jews and came down on Yom Kippur to advise them that Hashem had forgiven them. The following day (11th day of Tishrei) the process of designing and building the Mishkan began. However, the Mishkan was not formally assembled until Rosh Chodessh Nissan.

The Medrash Tanchuma explains that the pieces of the Mishkan were actually sitting and ready to be assembled three months prior to Nissan. The Medrash cites R' Shmuel Bar Nachman who taught that Hashem wanted the Mishkan to be assembled on Rosh Chodesh Nissan because that was Yitzchak Avinu's birthday and Hashem wanted to be mi'arev the simcha of building the Mishkan with the happiness of Yitzchak's birthday. Meanwhile the “leitzanei hador” were critical of the waiting process and were not aware of the significance of Rosh Chodesh Nissan. This is alluded to in Mizmor Shir L'Yom HaShabbos (Tehillim 92:5-7) in which it is written “Ki Simachtani Hashem B'Faalecha, B'Maasei Yadecha Aranein” which refers to the building of the mishkan; “M'od Amku Machsevosecha” which refers to the depth of Hashem's thoughts, which the fools did not understand had a connection (“Ish Ba'ar Lo Yeida...”).

R' Frand then quoted R' David Kviat (sp?) who asked – don't we have a general principal, “ein ma'arvin simcha b'simcha (we don't join two happy events together)? So why would Hashem want to specifically be mi'arev the building of the Mishkan with Yitzchak's birth?

R' Kviat answered that Yizchak is the pillar of avodah and was himself a korban. Chazal teach that Yitzchak came to the akeidah with happiness, knowing that he was to be offered as a sacrifice. Thus associating him with the Mishkan was meant to show our happiness of having a place where Hashem would dwell and where we could serve Him. The two events were not dissimilar smachos (such as having a wedding during chol hamoed) as the image of Yitzchak and his happiness in serving Hashem could act as a segulah for the Jews in their use of the Mishkan to serve Hashem.

The second vort said over by R' Frand was quoted from the sefer Kisav Hakabalah. It states many times in Sefer Vaykira that a korban was offered “l'reiach nichoach l'Hashem” which can be translated as the korban was offered as a pleasant smell for Hashem. However the Kisav Hakabalah cites to another explanation which appears in the sefer Ma'asei Hashem which states that the reiach nichoach is the smell of the person bringing the korban.

R' Frand then gave a mashal. When a person comes home Friday afternoon from work and smells the aromas of shabbos such as the soup, or challah or kugel, the person knows that the meal will be delicious, well before the food is actually consumed. [I personally love to come home and tell my aishes chayil that the house smells like shabbos]. R' Frand mentioned that this is a “leading economic indicator” - if the food smells good, you know that you are in for a great meal.

The same concept applies (kiv'yachol) to Hashem. When he sees that a person is offering a korban, He knows that the person is attempting to draw close to Him and wants to do better with his life. The person offering the korban has not yet taken the acts which will follow through with his personal improvement and closer kesher to Hashem. However, the act of bringing the korban is a first step in showing that the person does want to draw closer and the precursor to the mitzvos which will be done. Much in the same way that the great smelling challah I smell upstairs in my home right now means that I will have a delicious shabbos meal tomorrow although I have not yet eaten it, the scent of the person who sincerely offers the korban is the leading indicator to Hashem that the the ba'al makriv will be doing many mitzvos in the future.

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Wednesday's Weird But True Legal Cases - Vol XLVI

Tonight's weird (but true) legal case asks the question when is an interior decorator an architect?

The above question was the legal issue which determined the controversy in Marshall-Schule Associates v. Goldman, 137 Misc.2d 1024, 523 N.Y.S.2d 16 (Civ. Ct. N.Y. Cty. 1987). In Goldman, a firm which claimed that it was engaged to perform "interior design services" sued a property owner to recover for services rendered in connection with home improvement work. The property owner counterclaimed seeking to recover its $10,000 deposit on the contract.

In New York, the state legislature provides for the licensing and regulation of many professions (usually through the New York State Department of Education). Among those professions is the field of architecture, which the Court in Goldman defined as:

rendering or offering to render services which require the application of the art, science, and aesthetics of design and construction of buildings, groups of buildings, including their components and appurtenances and the spaces around them wherein the safeguarding of life, health, property, and public welfare is concerned. Such services include, but are not limited to consultation, evaluation, planning, the provision of preliminary studies, designs, construction documents, construction management, and the administration of construction contracts.

In suing to recover for payment for the services rendered, the plaintiff asserted that it was involved in the field of interior design which it defined as "being 'concerned with design, lay-outs, arrangements and choices of colors, fabrics, furniture accessories and other decorations.'”

In rendering its decision, the Court looked to the letter of agreement between the parties which established that the work would include:

floor plans, elevations, architectural drawings, along with furniture layouts, color schemes, fabric selections, wallcoverings, curtain and window designs, floor coverings.... The first phase of work will be designs for all of the architectural work to be done-new kitchen, two new bathrooms (including electrical and plumbing), the redesign of closets, the addition of any cabinetry (bookcases, etc.), and any changes in walls and openings; for all of which we will supply a general contractor which we will supervise. The second phase will be the decoration-furniture and as above

Based on this work description, it should not be surprising that the Court ruled that the work was within the definition of architecture. The court noted:

the language in the “letter of agreement” and the various services performed (e.g., over forty architectural-type drawings) and to be performed (e.g., re-arrangement of doors and closets, supervision of a general contractor), describe activities and services normally rendered by an architect. A licensed architect was here required. In agreeing to perform such activities and provide such services without aid of a licensed architect, plaintiff violated Sections 7301 and 7302 of the Education Law(Section 7302: “only a person licensed or otherwise authorized to practice under this article shall practice architecture or use the title ‘architect’ ”).

As a result, the Court dismissed the plaintiff's complaint seeking payment for the work performed and then granted judgment on the counterclaim, requiring the plaintiff to return the $10,000 retainer. The Court took one additional extraordinary step and directed that:

Copies of the proposed order and the actual order when signed are also to be served upon the office of the District Attorney, New York County and the Attorney General of the State of New York so that such public officials may take such action as is required and which they, in their official discretion, believe warranted to insure that there be future compliance with Education Law 7301 and 7302 by plaintiff.

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Sunday Night Suds - Saranac India Pale Ale

This week's Sunday Night Suds review looks at another of the Saranac brews - the Saranac India Pale Ale.

India Pale Ales (aka IPAs) are one of the oldest forms of ales which are still available today. As noted by the gurus at Beer Advocate, IPA were:

First brewed in England and exported for the British troops in India during the late 1700s. To withstand the voyage, IPA's were basically tweaked Pale Ales that were, in comparison, much more malty, boasted a higher alcohol content and were well-hopped, as hops are a natural preservative. Historians believe that an IPA was then watered down for the troops, while officers and the elite would savor the beer at full strength. The English IPA has a lower alcohol due to taxation over the decades. The leaner the brew the less amount of malt there is and less need for a strong hop presence which would easily put the brew out of balance. Some brewers have tried to recreate the original IPA with strengths close to 8-9% abv.

On this side of the pond, they brew the American IPA's a little differently than their English counterparts. Going back to Beer Advocate, "The American IPA is a different soul from the reincarnated IPA style. More flavorful than the withering English IPA, color can range from very pale golden to reddish amber. Hops are typically American with a big herbal and / or citric character, bitterness is high as well. Moderate to medium bodied with a balancing malt backbone."

The Saranac IPA certainly is true to the American IPA style. The beer itself is a deep copper color with more than a little bitterness. The Heineken man visited this weekend and asked whether he could have some of the beers in my fridge. Yes, I responded, but stay away from the Saranac India Pale Ale as it is too hoppy for a lager lover like you (OK maybe I did not say it exactly like that, but it was pretty close).

The Saranac IPA goes very well with full flavored food such as spicy Chinese or Mexican fare. If when you order a beer you ask for a "pint of bitters" this may be just the drink for you.

Saranac Pale Ale is under the kashruth supervision of the Va'ad of Detroit, as are all other beer produced by Saranac. For the experts take on Saranac Pale Ale, please click here http://beeradvocate.com/beer/profile/99/1464.

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

If you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

If you have seen this post being carried on another site such as JBlog, please feel free to click here to find other articles on the kosherbeers blogsite. Hey its free and you can push my counter numbers up!

Thursday's Parsha Tidbits - Parshas Vayakhel - Pikudei

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

In Shemos 38:8, the Torah discusses the Kiyor (laver) which was used in the Mishkan. The Torah recites that the Kiyor was made from mirrors which were donated by the people. Rashi explains that these mirrors were used by the women of Bnei Yisrael to check their makeup. Rashi then brings a medrash that Moshe was originally disgusted by the prospect of using the mirrors to build a part of the Mishkan, since the mirrors had been used for "yetzer hara." Hashem then said to Moshe "accept the mirrors as they are more dear to me than anything else, since the mirrors were used by the Jewish women in Egypt to create legions of people."

R' Frand then quoted R' David Kviat (sp?) of the Mirrer Yeshiva who asked - how could Moshe and Hashem have looked at the situation from two completely different perspectives? While a machlokes in shas may be about many different things, it is not usually in logic (svara). So why were Moshe and Hashem reasoning in such a different manner?

R' Kviat answered that Moshe was unaware of the mirrors' usage in Egypt. He did not know that prior to his birth, the men of Egypt did not want to cohabit with their spouses because they were afraid that their children would be killed or enslaved. The women would then use these mirrors to fix their make up so that they could go and convince their husbands that they should have children. As a result of their efforts, the Jewish people did not die off and their numbers multiplied greatly in Egypt. On the other hand, Hashem was certainly aware of the positive purpose these mirrors were used for as they were instrumental in the perpetuation of the Jewish people.

R' Frand then cited to the line from Shma which states that one should love Hashem with all their hearts (bichol livaveha) which Chazal teach means with both one's yetzer hatov and yetzer hara. How does one accomplish this? Serving Hashem with the yetzer hatov is easy. Serving with the yetzer hara can be accomplished on two different levels. The simple level is by defeating the yetzer hara and resisting improper urges. The higher level is by using the yetzer hara to serve Hashem and turning a base act into an act of Heavenly service.

The Torah recites in sefer Shemos that the Kohein Gadol wore the tzits on his forehead. On the tzits was written the words "kodesh l'Hashem". R' Frand explained that the reason why this object was unique (no other article of the Kohein Gadol's clothing had this writing) was that the tzits was on the forehead which is a part of the body with a negative connotation (usually meaning chutzpah). By wearing the tzits on the forehead with the words "kodesh l'Hashem" written there, it was a way of showing that something which could be chutzpah could be converted and used for a Heavenly purpose.

R' Frand then stated that there are times when chutzpah is appropriate. He brought a proof from the gemara in the end of Sotah that discusses that in the time of Moshiach "chutzpah yazgeh" - chutzpah will be prevalent. The Kotzker Rav explains this to mean that at the time of Moshiach the Jews will need chutzpah in order to survive.

R' Frand then quoted a medrash on Pikudei related to the conclusion of the Mishkan. He explained that when the Jews finished the Mishkan, Moshe gave them a bracha "Yehi Ratzon She'Tishreh Schina B'Maasei Yadecha" - that it should be Hashem's will that His presence will dwell in the work of your hands. R' Frand then asked - it was already promised to the Jews that Hashem will dwell in the Mishkan as the pasuk states "V'asu Li Mikdash V'Schachanti B'Socham." Why is there a need for a blessing that Hashem will do what He already said He woud do? R' Frand answered that the bracha was that Hashem would dwell in all their actions - that mundane daily tasks would be transformed in the do'ers eyes to Heavenly tasks and that common acts such as eating or sleeping would be seen as being done for the sake of Shamayim. This was the greater level of using one's yetzer and the bracha given by Moshe.

R' Frand closed by citing a thought from R' Shimshon Rephael Hirsh about sefer Vayikra. The first korban in Vayikra is an Olah which is completely consumed by the altar. The last korban in sefer Vayikra is the Ma'aser Behema which is a shelamim and almost completely consumed by the donor. The limud of sefer Vayikra is that by doing things for the right reason, even a korban which is nearly entirely consumed by the donor will be converted to a heavenly purpose.

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Tuesday's Thoughts on the Daf - Bava Kamma 79

Bava Kamma 79 contains an interesting discussion as to the penalties for theft by a gazlan (for our purposes a mugger) or by a ganav (which we will define as a thief). The gemara states in the name of R' Elazar on 79b that if a person was seen hiding out in the forest waiting for animals to come his way and then is later seen slaughtering or selling a sheep/ox he must pay 4 or 5 x the value of the animal. Later the gemara asks - if he was seen preparing to rob, why is he a ganav - he is a gazlan? The gemara answers that since he hides he is actually a ganav.

This of course creates a question as to what defines a gazlan? If this guy who was openly preparing his trap and was seen by more than just the witnesses to the theft (according to Rashi) is considered a ganav, what is a gazlan. The gemara offers two answers, both with a link to Nach. R' Avohu says that the gazlan would be like Benayhu ben Yehoyada who actively took a spear from an Egyptian and killed him with the spear. R' Yochanan says that the the gazlan was like the people of Shechem who ambushed those people who wandered through their mountain passes.

The gemara follows this with a discussion as to why the ganav pays 2, 4 or 5 while the gazlan pays no fine. The gemara states in the name of R' Yochanan Ben Zakai that the ganav intimates that Hashem is less important to him than humans. The ganav steals in hiding because he is afraid of being caught by man, but is not afraid that Hashem will see him. In contrast, the gazlan openly robs, showing that he is unconcerned with man or G-d. Since the ganav is less concerned about G-d, we punish him more severely by making him pay a 2x, 4x or 5x penalty depending on his actions.

The gemara later attempts to explain this through a parable (mashal). R' Gamliel states that two people threw parties - the first person threw a party and did not invite the king's sons, but did invite local townspeople. The second host invited neither the king's sons nor the local townspeople. Who got punished more severely? The one who opted for the locals and not the king's sons. This mashal implies that if a person is more concerned with the local populace's perception of his acts, he will be dealt with more severely by the king.

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Maxless Monday Musings

As some of you may be aware, last Monday marked Max Kellerman's last show on 1050 ESPN radio for the forseeable future. As I had gone to court in the City in the early morning and knew that I was not going to do a post last Monday night (due to Purim starting that evening) I did not listen to the show. As such, I don't know if there were any on-air hints that it was going to be his last show.

I first realized that Max was not on 1050 when I turned on the radio on Wednesday at 10 AM and heard the program referred to as the Brandon Tierney show. This was disturbing to me for two reasons: (1) I had grown attached to the Max Kellerman show as background while I worked and (2) Brandon Tierney is difficult to listen to for more than a segment or two at a time. Why do I feel that way about Brandon? Very simply he butchers the English language (some prime Brandon invented idioms include "throwing a match on a pile of gasoline" and that a team had some "imminently winnable games"). Also, he often times will reverse his stance within the same segment, usually about things like statistics - he will quote a stat and then when a caller disagrees he will say that you can make statistics say anything. As has been noted in print, Brandon seems more interested in showing that he is slick than actually covering the issues. When he was doing the night shift there were at least Knick and Ranger games which cut into his slot. Now that he is doing the AM slot on a temporary fill in basis for Max Kellerman, I find myself listening to the National feed on my computer.

Why did Max leave? The sports media writers in the local newspapers have attributed it to one of two things: (1) Max being upset that 1050 cut Robin Lundberg and Louie Gold and (2) the network's decision to cut Max's show back from 3 hours a day to 2 hours (like it was when he first took the slot). I can't profess to having any knowledge as to whether either reason is correct, and Max also does not seem to be publicly commenting about it (his Max Kellerman army page only has listener comments and nothing from him).

So when will I next do a Max post and what will I do with Mondays? As to the former, this will depend on whether he gets another radio gig. The tabloids have been saying that he may join Mike Francesca on 660 WFAN. As a professor of mine in law school once said, we'll jump off that bridge when we get there. However, until then I will use this post to try to link daily sports issues to Torah, much the way that the Max Kellerman show always had a link to Torah thought.

My thought for today asks -- does professional sports stimulate more negative than positive thought? When rooting for a college team in the big dance, an alum will hope that his team wins every game. Unlike the regular season, what another team does is irrelevant, since the first time your team loses it is out of the tournament. However, if it never loses the team takes home the trophy.

In contrast, in the world of professional sports where no team goes undefeated, the average sports fan not only roots for his own team, he also actively roots against other teams. In some cases this is taken to the extreme as I have heard that Boston station sports reports contain daily Yankee updates. I can recall growing up as a Ranger fan in Long Island, after hearing the Ranger score, my first question was did the Islanders lose. (More recently it has not been as much of an issue since the Islanders haven't been competitive for a decade, but I digress).

So how does this link to Torah? Pirkei Avos teaches that one who is wealthy is happy with his portion. This can be contrasted with the teachings of the baalei mussar that one should not be jealous of another person since in so doing he openly questions Hashem's decision as to how resources should be distributed. To draw a parallel, a sports fan must take this approach if his rooting interest is healthy. Root for your team and focus on its results. If the team accomplishes, then great. But don't spend your time watching and rooting against the other team as this will not accomplish anything other than accumulate negative energy and frustration.

If you have seen this post being carried on another site such as JBlog, please feel free to click here to find other articles on the kosherbeers blogsite. Hey its free and you can push my counter numbers up!

Sunday Night Suds - Saranac Pale Ale

This week's Sunday Night Suds review looks at one of my all time favorite beers - Saranac Pale Ale.

I have often heard people review this beer as a gateway beer for those wishing to expand their palates from macros into the world of craft beer. Not long after my friend Yehuda F moved to West Hempstead from Brooklyn, we were walking home from shul on Friday Night talking about the perfect cholent beers, when he mentioned that he had once had a Saranac Pale Ale, but could never find it again. Yes, I remarked, this is the perfect cholent beer and I could definitely find a few six packs for you. A friendship began and now periodically I drop off six packs beer at his house so that there is always something available for cholent.

So what is a cholent beer? No, its not beer made from cholent. It is a beer which can go well with a stew made of meat, potatoes, beans, barley and onions which has been simmering at low heat for 18-24 hours. When looking for a cholent beer it is important to not to choose one that is too sweet or too heavy. The sweet flavored beers will clash with your cholent. Meanwhile, the stouts will either drown out your cholent or fill you up. It is for this reason that I try to have pale ales, IPAs (India Pale Ale) or wheat beers with my cholent.

The Saranac Pale Ale is a year round brew which pours a rich yellow gold with a fair amount of foam. As with all Saranac products, the carbonation is perfect for drinking with a meal or just on its own. The beer itself has some bitterness, but not to the level of an IPA and there is a little bit of citrusy tone to make you want to have another sip right after finishing what's in your mouth.

Saranac Pale Ale is under the kashruth supervision of the Va'ad of Detroit, as are all other beer produced by Saranac. For the experts take on Saranac Pale Ale, please click here http://beeradvocate.com/beer/profile/99/914.

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

If you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

Finally, as a public service announcement, please be advised that I have received updated LOCs from the Va'ad of Detroit for Saranac, Pete's, Brooklyn and Shiner beers. I have added several new beers to the list from the pre-purim post (http://kosherbeers.blogspot.com/2009/03/sunday-night-suds-rising-moon-spring.html ) as the new LOCs added various styles which are now also under the Detroit Va'ad.

If you have seen this post being carried on another site such as JBlog, please feel free to click here to find other articles on the kosherbeers blogsite. Hey its free and you can push my counter numbers up!

Thursday's Parsha Tidbits - Ki Sisa

The following is a brief summary of two thoughts said over by R' Frand in his shiur this evening. I have attempted to reproduce these vorts to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand.

In Shemos 32:1, the Torah writes "Vay'ar Ha'am Ki Boshesh Moshe Laredes Min Hahar" that the Jews saw that Moshe had delayed in descending from Mt. Sinai. Rashi explains that the word boshesh means "delayed" -- that the Jews had calculated that Moshe was going to come down by that date and he had not yet descended. The Jews were concerned that since Moshe was always precise and he had not come down, that something must have happened to him. Rashi also brings two medrashim that the Satan: (1) made the clouds swirl and the world fill with darkness and (2) showed the Jews an image of Moshe's coffin floating in the sky.

After this occurs, the Jews come running to Aharon for guidance. Aharon attempts to stall by telling them to gather up their gold. They do so and Aharon throws in a gold piece which according to one medrash has the image of a cow and as a result the Golden Calf emerges. Another medrash teaches that Aharon threw in a piece of paper with the Heavenly Name on it, leading to the same result.

R' Frand then asked two questions: (1) Why is that the Jews are punished for worshipping the Golden Calf if all of the above reasons could be interpreted as signs from above that Moshe was gone and the Calf was to be followed? (2) Why does Moshe after he has descended and seen the actions Jews, not plead with Hashem for forgiveness based on the Jews "logical" conclusion?

R' Frand answered that the lesson of the calf is that that there is never a good excuse or logical explanation or extenuating circumstance which justifies worshipping other gods. This is the reason why Moshe does not seek to explain the Jews actions, because he is aware that there is only one G-d and that there can never be justification to worship anything else.

The second vort said by Rabbi Frand was a sheva brachos vort. It is customary at Jewish weddings that the groom steps on a glass. It is usually taught that the reason for this custom is to remember that the Bais Hamikdash is no longer. Tonight R' Frand mentioned an alternate explanation, (in the name of either R' Hai or R' Saa'diah Gaon) that the glass is broken as a remembrance of Moshe breaking the luchos.

R' Frand noted that in the end of Devarim, Hashem writes the epitaph for Moshe Rabbeinu and recites his great acts in order of significance. The final pasuk ends l'eynay kol yisrael (before the eyes of all the Jews) which Rashi explains means that Moshe is being praised for breaking the luchos.

Why is this Moshe's most praiseworthy act? Because Moshe had invested so much time and effort in getting the luchos, yet he realized that the situation demanded that he give up his investment and break the luchos. It is often times difficult to abandon something that one has labored to accomplish, yet the situation demands that it be done.

R' Frand cited to last week's haftorah where Shaul tells Shmuel that he has kept Hashem's order to destroy Amelek. Shmuel responds - no! Shaul then says, I have listened to Hashem. Why? Because he finds it difficult to admit that he has not completely followed Hashem's order.

R' Frand then mentioned that as a Rebbi, he is frequently approached by boys who tell him that the girl they are engaged to is a perfect match because they like all the same things. However, within a few weeks of getting married, the boys start noticing that they are not exactly like their spouses and that sometimes each may want to do something that the other does not want to do.

R Frand closed the vort by explaining that the lesson of the breaking of the luchos is that there are times when a person may feel that they are right and that things should be their way. However, the situation may demand compromise, even if this means abandoning something that you have worked very hard to create or master. The lesson of the luchos is that sometimes the correct course of action is to drop this item or position and admit that your spouse is correct.

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Wednesday's Weird But True Legal Cases - Vol XLV

Tonight's weird (but true) legal case continues the shushan purim fest in discussing a case about beer entitled, Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137 (2d Cir. 1997).

In this case, Genesee had filed suit against Stroh, seeking an injunction barring Stroh from marketing its "Red River Valley Honey Brown Ale" as it allegedly infringed Genesee's (at the time unregistered) trademark "JW Dundee Honey Brown Lager."

After first stating its holding (which I will keep to myself until the end of this post) the court began with a background on beer which was quite remarkable. The court noted:

In this era of renewed interest in quality beers, sometimes dubbed the “Renaissance of Beer,” MICHAEL JACKSON, MICHAEL JACKSON'S BEER COMPANION 8 (1993) [hereinafter, JACKSON, BEER COMPANION] many large brewing companies have attempted to cash in on the growing consumer demand for unique, well-made beers, by brewing specialty beers of their own. In order to conceal the identity of the producer-beer connoisseurs are typically wary of mass-produced beers-these companies market specialty beers under small-town names. See Bill McDowell, In Craft Beer, It's “Style” over Brand Substance,ADVERTISING AGE, Mar. 10, 1997, at 20 (noting that “major breweries have been ... criticized for building marketing cachet by hiding their own specialty beer efforts behind subsidiaries with faux-microbrand names”). And so it is with this case, a dispute between two of America's largest brewing companies-the Genesee Brewing Company (“Genesee”) and the Stroh Brewing Company (“Stroh”)-doing business as Highfalls Brewing Company and Northern Plains Brewing Company, respectively.

Despite extensive efforts, many large brewers have had little success in the craft- brewing business. Occasionally, however, a large brewer develops a specialty beer that becomes a popular favorite. A recent example is plaintiff Genesee's “JW Dundee's Honey Brown Lager.” Sales of that brew, which was introduced in January 1994, have climbed to over 2.5 million cases a year, making it one of the four best-selling specialty beers in the country.

Genesee refers to this beer simply as “Honey Brown.” Apparently, prior to Genesee's product, no beer had been marketed with a brand name that included those words. Genesee's labeling and advertising emphasize “Honey Brown,” and Genesee chose that title as the beer's “bar call.” Consumers have followed suit. The record is flooded with menus, fliers, and unsolicited letters that confirm 1) that a large number of beer drinkers refer to Genesee's product using only the words “Honey Brown,” and 2) that many menus list “Honey Brown” among brands of beer, like “Budweiser” and “Coors.”

The court then recited the genesis of the competing Stroh's product, explaining that "[i]n early 1996, defendant Stroh began to market “Red River Valley Honey Brown Ale,” with the conceded purpose of competing with Genesee. Stroh's label and advertising, like Genesee's, place emphasis on the words “Honey Brown.” ... Once Stroh began to produce its “Honey Brown,” other brewers introduced products with these words in their names. There are now numerous beers in the marketplace with brand names that contain the words “Honey Brown,” including “J.J. Wainwright's Evil Eye Honey Brown,” “Bank Draft Honey Brown Ale,” “Tivoli Honey Brown Lager,” and “Algonquin Honey Brown Lager.”

In the trial court, the U.S. District Court for the Western of New York denied the motion for a preliminary injunction, ruling that Genesee was not likely to succeed on its trademark claim because the term "Honey Brown" is generic and cannot be trademarked. Although the Second Circuit affirmed, it took issue with the lower court's conclusion as to why the mark was not worthy of protection.

In discussing the lower court opinion, the Second Circuit explained:

The district court accepted Stroh's assertion that “brown beer” is a category of beer, and found that “Honey Brown” differs from this category by the addition of the descriptive word “honey”-which is not an ordinary ingredient of brown beers-and that “[t]he word ‘honey’ is a commonly used descriptive term for which there is no effective equivalent.” Accordingly, the district court concluded that “Honey Brown” is a generic mark not entitled to protection.

However, the Circuit took issue with the lower court's opinion, noting that:

The problem with the district court's analysis is that, as Genesee correctly argues, there is no such category of beer as “brown beer.” Beers have traditionally been divided into two general categories: 1) ales, which are fermented at high temperatures for short periods of time; and 2) lagers, which are fermented at low temperatures for longer periods of time. See JACKSON, BEER COMPANION, at 66 (“In modern usage, ale indicates a brew that has a warm fermentation, traditionally with strains of yeast that rise to the top of the vessel. These ‘top-fermenting’ yeasts distinguish ales from lagers, where the yeasts work at cool temperatures, at the bottom of the vessel.”). Until the development of lagering techniques in the 19th century, all beers were made with ale yeasts. See MICHAEL JACKSON, THE NEW WORLD GUIDE TO BEER 9-10 (1988) [hereinafter, JACKSON, WORLD GUIDE]. Today, most English, Irish, Scottish, and Belgian beers are ales, while most German, Czech, Austrian, and Dutch beers are lagers. See JACKSON, BEER COMPANION, at 66-67, 196-97.

The category of ales is further divided into numerous subcategories (e.g., pale ale, porter, stout), as is the category of lagers (e.g., pilsner, bock, Oktoberfest). See Joint Appendix at 596 (listing the style categories used at the 1996 Great American Beer Festival). Thus, “ale” and “lager” are to zymurgy what “plant” and “animal” are to biology-the primary taxonomic divisions, each of which is further subdivided into numerous more specific but still generic classifications.

One traditional subcategory of ale is brown ale...There is no comparable subcategory of “brown lager.” Nor is there a general category of “brown beer” that somehow encompasses both lagers and ales. See Joint Appendix at 596 (listing the style categories used at the Great American Beer Festival). Such a category would be antithetical to the fundamental notion that, absent a handful of hybrid and miscellaneous styles, all barley-based beer styles represent subcategories of the general categories of lager and ale.

Stroh asserts first that “brown ale” is a category of beer, and then that any beer that is brown and includes honey can be placed in a “honey brown” subcategory of “brown ales.” The problem with this analysis is that many beers that are using the name “Honey Brown”-including Genesee's-are not brown ales at all. They are not even ales; they are lagers. As such, it is simply not the case that Genesee's and Stroh's products both fall into the same subcategory of beer: brown ales brewed with honey. It follows that the district court's conclusion “that there is a category of ‘brown’ beers in the market place, and both plaintiff's and defendant's beers are distinct from that category in that they contain honey,” was clearly erroneous.

The court then affirmed, albeit through different logic, explaining that:

It is conceivable-though we certainly do not suggest, let alone decide-that Genesee's mark-“Honey Brown”-when applied to a lager (like its own beer) might be deemed descriptive, rather than generic. For this to be so, a court would have to find that there were ways to convey the fact that a lager is brown in color and flavored with honey without using the words “Honey Brown” (at least in the order or way that Genesee has used them to identify its lager), and that consumers at large (as opposed to the beer cognoscenti ) did not understand “brown beer” (or “brown lager”) to be a generic category of beer.

But when applied to an ale, the mark is generic. There are numerous styles of beer in the marketplace, the names of which consist of a time-honored beer category modified by a new, creative ingredient or flavor. Examples include maple porter, pumpkin ale, nut brown ale, raspberry wheat, cranberry lambic, and oatmeal stout. In some of these new beer styles, the innovative ingredient is honey. As a result, there are honey wheats, honey porters, and honey cream ales on the market. Under the Canfield reasoning, which we have adopted, none of these names may be trademarked. Someone is always the first to sell these products, and if that brewer were granted a monopoly on the name, subsequent producers would lose the right to “describe [their] goods as what they are.”

That principle controls this case. There is a recognized category of beers in the marketplace known as “brown ales.” And Stroh's product, Red River Valley Honey Brown Ale (but not Genesee's product, JW Dundee's Honey Brown Lager) can be placed within that category, or more precisely, within a new subcategory of that category-brown ales made with honey: “honey brown ales.” Indeed, Stroh developed Red River Valley Honey Brown Ale by altering its “brown ale recipe to include honey and brown sugar which created a smoother and sweeter brown ale.” Because the addition of the word “honey” is necessary to indicate a brown ale that is brewed with honey, Stroh has the right to call its beer a “Honey Brown Ale.”.

If you would like to see the whole decision, it can be found on the (free) Findlaw website by clicking here http://laws.findlaw.com/2nd/969566.html .

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Sunday Night Suds - Rising Moon Spring Ale with Purim Bonus Feature

Tonight's Sunday Night Suds review looks at the Blue Moon spring beer, Rising Moon Spring Ale.

While walking home from shul yesterday, I had an interesting conversation with a friend who was looking for a recommendation for a beer to have with his Purim seudah. The catch was, the guy is not a big fan of beer.

When making recommendations to non-beer drinkers as to which beer to experiment with, its important to know what their tastes are like. For example, someone who does not like the taste of alcohol will simply not like any beer you give him. For people like this, G-d created alcopops like Smirnoff Ice (most flavors under certification - click here http://www.crcweb.org/kosher/consumer/liquorList.html for a complete list).

Other people may like alcohol, but are not into the strong beer flavors found in stouts or even some macro lagers. For those people, it is important to find out whether their drinks of choice are wine or hard alcohol. For those who drink white wines (chardonnays, emerald rieslings, etc.), I would recommend a beer like the Rising Moon Spring Ale.

The Rising Moon Spring Ale is a flavored beer which does not contain fruit juices and does not seem to have a high sugar content (I have not verified that last observation, so diabetics should not view this as a green light). The beer itself draws its flavor from kieffer lime leaves and lime zest. As a result the amber wheat ale has a distinctive citrus flavor, but nowhere near as strong as sprite, diet sprite, 7-up or even Zima.

Rising Moon Spring Ale (like all other beers produced by Blue Moon/Coors) is certified kosher by the Orthodox Union. For the experts take on Pale Moon, please click here http://beeradvocate.com/beer/profile/306/40528 .

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

Finally, if you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

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BONUS FEATURE - PURIM BEER GUIDE

As a community service, Kosher Beers is proud to provide a Purim Beer Guide for those who choose brews for their seudah.

Please note that there is no mitzvah to get stone drunk on Purim. The mitzvah is "ad d'lo yadah" which can even be accomplished through sleep (since while one is sleeping they do not know the difference between Haman and Mordechai).

Still, for those who do utilize alcohol as part of their seudah, the following is a brief guide to beers:

Does beer require a hashgacha? The major kashruth organizations utilize the chazakah that unflavored beer does not require a hashgacha as unflavored beers are made only from four ingredients: malted barley, hops, water and yeast. For a great article by Rabbi Tzvi Rosen on kashruth in alcohol, including an in depth analysis of beer making please click here http://www.star-k.com/kashrus/kk-thirst-highspirits.htm .

Trying to make sense of the different styles of beer? Click here for the Beer Advocate beer style list which breaks down the beers both by their type and country of origin: http://beeradvocate.com/beer/style .

Assuming that you are looking for a beer with a hashgacha, I have compiled a list of beers along with their certifying agency. Please note that the list below is not meant to be exhaustive as it only reflects the results of my individual research. Finally, to my friends, I have not tried every beer on this kosher beer list and merely because I list them here does not mean I recommend them for your Purim seudah. If you find a beer which looks interesting to you, please feel free to search the archive on my main page to see if I have reviewed it.

Samuel Adams - as per Star-K, the following varieties are kosher even without a certification on the label. Please note that not every variety of Sam is on this approved list. To see the Star-K LOC for Samuel Adams, please click here - http://www.star-k.org/loc/kosher_letter_6635_bostonbeercompany.pdf .

Black Lager; Boston Ale; Boston Lager; Brown Ale; Cherry Wheat; Cranberry Lambic; Cream Stout; Double Bock; Hefeweizen; Holiday Porter; Honey Porter; Irish Red Ale; Light, Octoberfest; Old Fezziwig; Pale Ale; Summer Ale; White Ale; Winter Lager.

Brick Brewery: This Canadian Brewery only sells its fine product in Ontario. However, should you be lucky enough to find some where you are located, the following varieties are approved by the COR on their website - http://www.cor.ca/en/20177 :

Brick - Amber Dry; Anniversary Bock; Premium.
Laker - Honey; Ice; Premium Lager; Premium Light; Red; Strong.
Waterloo - Dark Lager.

Brooklyn Brewery: This beer company brews in multiple locations including Brooklyn, New York and Utica, New York. The following beers which are brewed in Utica and sold in 12 oz bottles were listed on an LOC which I received from the Va'ad of Detroit. The LOC indicated that it was subject to renewal on March 10, 2010.

Brooklyn - American Ale; Black Chocolate Stout; Brown Ale; East India Pale Ale; Lager; Monster Ale; Oktoberfest; Pennant Ale; Pilsner; Summer Ale; Weiss Beer; Winter Ale.
Post Road - Pumpkin Ale.

Coopers Brewery (Australia): The following beers are listed on the LOC from Kosher Australia which can be found by clicking here http://www.coopers.com.au/media/files/2506.pdf :

Coopers - Best Extra Stout; Dark Ale; Extra Strong Vintage Ale; Mild Ale; Original Pale Ale; Premium Ale; Premium Light Beer; Sparkling Ale; Special Old Stout.

Coors (including Blue Moon): To my knowledge, all beers produced by the Coors Brewing Company (including its Blue Moon subsidiary) are under the Orthodox Union. The beers generally have an OU on the label. The following are the varieties which I have seen with an OU.

Coors Golden Ale (aka banquet beer); Coors Light; Blue Moon; Full Moon Winter Ale; Harvest Moon Pumpkin Ale; Honey Moon Summer Ale; Pale Moon Pale Ale; Rising Moon Spring Ale;

Lakefront Brewery - also certified by the Star-K. Very difficult to find outside of the Midwest, although some are available in Brooklyn at American Beverage on Court Street in Cobble Hill. The following varieties are found on the Star- K LOC which can be viewed here - http://www.star-k.org/loc/kosher_letter_8197_lakefrontbreweryinc.pdf .

Big Easy Lager; Bock dark Lager; Cattail Ale; Cherry Lager; Cream City Pale Ale; East Side Dark Lager; Fuel Coffee Stout; Holiday Spice Lager; Klisch Pilsner; New Grist Beer; Oktoberfest; Organic Barleywine; Organic ESB; Pumpkin Lager; Riverwest Stein; Snake Chaser Stout; White Beer.

FX Matt Brewing - this company brews many different brands of beer at its Utica factory. The following beers were listed on an LOC which I received from the Va'ad of Detroit by fax. The LOC indicated that it was subject to renewal on March 10, 2010.

Lake Placid: Ubu Ale; IPA; 46'er Ale.
Saranac: Adirondack Lager; Amber Wheat; Belgian Ale; Belgian White; Black Diamond Bock; Black Forest; Black & Tan; Bock; Brown Ale; Caramel Porter; Chocolate Amber; Dunkel; ESB; Golden Pilsner; Hefewiezen; Helles; High Peaks Imperial IPA; Imperial Stout; India Pale; Irish Red Ale; Kolsch; Light; Marzenbier; Mocha Stout; Mountain Ale; Oatmeal Stout; Oktoberfest; Pale Ale; Pomegranate Wheat; Pumpkin Ale; Rauchbier; Roggen Bock; Season's Best; Scotch Ale; Single Malt; Stout; Summer Ale; Summer Brew; Traditional Lager; Winter Wassail; Nut Brown Ale.
Utica Club : Light, Pilsner.

Pete's Brewing Company:The following beers were listed on an LOC which I received from the Va'ad of Detroit. The LOC indicated that it was subject to renewal on March 10, 2010.

Pete's Wicked Ale; Rally Cap Ale; Strawberry Blonde; Wanderlust.

Redhook Brewery: This brewery produces beer on both the East Coast (New Hampshire) and West Coast (Woodinville, Washington). Both breweries produce beers which are under the kashruth supervision of the OU (all Redhook bottles which I have seen have the OU on the label) including:

Blonde, Copperhook Spring Ale, ESB, Longhammer IPA, Winterhook Winter Ale.

Spoetzel Brewery: This small town Texas brewery has a cult like following among those who have tried its product. The following beers were listed on an LOC which I received from the Va'ad of Detroit by fax. The LOC indicated that it was subject to renewal on December 31, 2009.

Shiner : Blonde; Bock; Bohemian Black Lager; Hefeweizen; Holiday Cheer; Kolsch; Kosmos Reserve; Light; 99 Helles; 100 Commemorator; Spezial Leicht.

I cannot stress enough, if you have been drinking on Purim (or any other day) please do not get behind the wheel of a car. Its a day of simcha and should never be marred by the tragedy of DWI.

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Thursday's Megillah Tidbits

The following is a brief summary of a thought said over by R' Frand in his shiur this evening. I have attempted to reproduce this vort to the best of my ability. Any perceived inconsistencies are the result of my efforts to transcribe the shiur and should not be attributed to R' Frand. [Note - this week, Rabbi Frand said both parsha and megilla vorts. I have chosen to reproduce the Megillah vort in this post].

The last pasuk of Megillas Esther (10:3) begins with the word "Ki" which is generally translated as "because." The pasuk states that "Because Mordechai the Jew was an assistant to King Ahasverus, he was a great man to the Jews and was accepted by most of his brothers, he sought good things for his people and was concerned for all of their offspring."

R' Frand quoted the sefer Manos Levi (written by R' Shlomo Alkabetz and distributed by him with his shalach manos) who asked why was this the final pasuk of the megillah? Additionally, why does the pasuk begin with the word "ki" which is the answer to a question - what was the question that it is answering?

R' Frand then said that he had seen (but could not remember where) a pshat that the Jews logically should not have accepted Mordechai and followed his counsel to fast and daven for Esther. After all, Mordechai was the reason that the Jews found themselves as targets of the king's decree, since Mordechai's refual to bow down to Haman was the impetus for the decree. So why did the Jews follow Mordechai at all?

R' Frand answered this last question by borrowing from chumash. He quoted a vort in the name of the Ponovitzher Rav in relation to Yaakov and his interaction with the shepherds at the well, prior to his meeting Rachel (Bereishis 29:1-8). The Torah details that Yaakov essentially said to the shepherds - why are you bringing the sheep in now, its not the end of the day. Rabbi Frand then stopped and said to the audience - you try going to a construction site or road project and ask the workers why they are all standing around the hole. Still, the shepherds did not react negatively to Yaakov. Why? Because he used the language "Achai" - "my brothers." Yaakov was able to demonstrate to the shepherds through the conversation that he genuinely cared about them and their well being.

Similarly, Mordechai was able to interact with the Jews of Paras and Madai and convince them to follow him in fast and prayer because he demonstrated that he genuinely cared about them. It is for this reason that the Megillah uses the language "because" to start the last pasuk and it is for the same reason that the pasuk contains vivid descriptions of how Mordechai was accepted by his brothers ("Echav") because he was genuinely concerned about them. How was the Purim miracle accomplished? Because Mordechai caused the Jews to come together and fast and daven to Hashem. As a result, Hashem put into play the miracle which saved the Jews of Paras and Madai.

It is my hope that our fast and prayers next week can accomplish the same form of achdus and caring for one and other so that we can hasten the ultimate redemption.

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Wednesday's Weird But True Legal Cases - Vol XLIV

Today's weird (but true) legal case looks at a purim controversy which played out in Olson v. Tenney, 466 F.Supp.2d 1230 (D. Or. 2006).

As noted by the court in its decision, in 1994 Marilyn Olson, a professional writer and novelist, wrote and copyrighted a play entitled Hadassah based on (shockingly) Megillas Esther. At various times, the Plaintiff sent videos of her play to Trinity Broadcasting Network (TBN) and others. Usually the videos were returned to her.

In late 1999 or early 2000, Plaintiff called one of TBN's 800 numbers and asked the person who answered the phone whether TBN “would be interested in Hadassah.” She was transferred to another number where she left a message. Subsequently, she got a call back from another person whose name the Plaintiff could not recall. Following the conversation she sent a video of Hadassah, the Hadassah script, a brochure for Hadassah, and a coloring book to the man who called her back.

Thereafter, on December 7, 2000, Plaintiff posted two messages on the GodChasers Network website in which she stated, "Please let me know if you wanted to see a copy of the new musical named “Hadassah”. This is the story of Esther, 2 hours, 20 minutes long.... Funny, accurate, and extremely entertaining, you might want to consider it for your full length feature film. I can send you a copy of the script and music."

On December 28, 2000, Plaintiff received a response by e-mail from Jenni Baier of GodChasers Network, which stated "I would be interested in hearing more about the musical “Hadassah.” I visited the website, but it seem to be mostly “old” information. Is it currently being performed anywhere? Are there videos available? I am especially interested in finding credible sources that will help us set the historical context for the story." Plaintiff did not respond to Baier's email, and the email was deleted.

Thereafter, in 2002 Tommy Tenny (a Louisiana minister and owner of GodChasers) approached Bethany House, a division of Baker Book House, about writing a novel based on the Book of Esther. After agreeing that a a novel and a nonfiction book should be written, Tenny began to work on the novel with Mark Olsen. Among other things, Tenny and Olsen discussed Persian and Jewish history, Jewish teachings, and the circumstances in which a young Jewish girl like Esther would have been raised as an orphaned exile in Persia during the Fourth Century, B.C.

After the October 2002 meeting, Olsen created a manuscript based on historical reference materials, the Book of Esther, and the ideas he and Tenny discussed at their meeting. Johnson supervised the cover design of the novel and suggested it be named Hadassah. The novel was published in 2004.

On August 18, 2005, Plaintiff filed a copyight infringement lawsuit against Tenny, Olsen, and Baker Book House relating to the novel Hadassah and various derivative works including a children's version, a Spanish translation, and an audio book recording of Hadassah.

In considering the defendants motion for summary judgment, the court performed the traditional access review as well as the extrinsic and and intrinsic tests by which it looks for similarities between the two pieces. I have reproduced the extrinsic analysis below, in which the court found that:

Many of the similarities between the works identified by Plaintiff arise from historical fact. For example, both works relate the fact that women who were not chosen to be queen to Xerxes, the King of Persia in the Fourth Century, B.C., became his concubines, virtual prisoners, and shut away from friends and family. In addition, both works reference the fact that wealthy individuals were carried in litters by servants and observe that anyone approaching the Persian king without permission was killed unless the king granted them an immediate pardon. As noted, copyright protection does not extend to such historical facts.

In addition, many of the similarities identified by Plaintiff stem from the common source of the Book of Esther. For example, both works include the Biblical narrative that Hadassah is Esther's Jewish name and that Hadassah changes her name to avoid being revealed as a Jew in the King's palace. The phrase “Who would do such a thing?” appears in both works and is a phrase taken from the Book of Esther. The incident in which Xerxes takes his ring from Haman and gives it to Mordecai and the role of Memucan as a prince and advisor to Xerxes also are taken from the Book of Esther. As noted, copyright protection does not extend to material from common sources or “in the public domain.”

Plaintiff also identifies similarities between the two works that are considered scenes a faire: i.e.,“incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” For example, both works note Mordecai, Hadassah's relative and guardian, teaches her about her Jewish history and Jewish traditions. Similarly, both works include the theme of Hadassah's growing awareness of and faith in God, a standard development in a work based on a book of the Bible. Scenes a faire are not protectable material.

Plaintiff also alleges the novel's inclusion of the words “wonderful,” “joy,” and “his presence fills the air” when referring to Hadassah's feelings about God violate Plaintiff's copyright. In a work based on a book of the Bible, however, a character's feelings about God are likely to include joy or wonder when the character believes God is near. In addition, scenes in which the queen candidates fight over jewels and clothing and that describe the sadness of the concubines who are not selected for queen are scenes a faire“that necessarily result from the choice of a setting or situation.”

Plaintiff's list of similarities also includes metaphors or cliched language, which like “phrases and expressions conveying an idea that can only be, or is typically expressed in a limited number of stereotyped fashions,” are not subject to copyright protection. For example, both works include phrases such as “Your Majesty,” which is not unusual when a primary character is the King of Persia, and the phrase “fallen in love,” which is common in stories about characters who discover love.

On this record, the Court concludes the similarity of ideas between Plaintiff's musical and the novel and its derivative works arise from a common source, historical facts, scenes a faire, and cliched language rather than from any protectable ideas or expressions. Accordingly, a reasonable juror could not conclude Defendants infringed any protectable ideas or expressions of Plaintiff's musical.

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Tuesday's Thoughts on the Daf - Bava Kamma 65

Bava Kamma 65 begins with an analysis of Rav's computation of damages for theft. Rav explains that one who steals pays back the keren (principal) computed as the value of the object when it was stolen. Meanwhile, when he pays the 2x, 4x or 5x penalty, the value of the object is computed as of the date when judgment is handed down.

Rav's method is later modified by the gemara which limits the application to a situation where the value of the object has decreased subsequent to the theft. By example, if the object was originally worth 4 but is now worth 1, he pays keren as 4, but 2x, 4x or 5x as multiples of 1.

Rav Chanina then attempts to support this understanding by citing to a beraisa involving a shomer who swears an object was stolen (thus absolving him from liability) before recanting and obligating him to pay chomesh (1/5 of total value including penalty). In this beraisa, R' Yaakov states that if he only admitted to swearing falsely after witnesses come and expose his fraud, he pays kefel (2x) and the chomesh satsifies the kefel requirement. How is this accomplished? The gemara on 65b explains that the value was originally 4, but is now worth 1. The kefel (computed at present value) would be 1. The chomesh (computed as 1/5 of total original value inclusive of penalty) would be 1 as well. Thus, Rav Chanina concludes that Rav's principle is vindicated.

Later on 65b, the gemara offers a scenario where Rav Chanina's beraisa would not necessarily support Rav. The gemara suggests that the shomer swore four times that the object was stolen and then recanted. If the object was worth 4 and is still worth 4, then the chomesh would be 1, but this would be multiplied by 4 (based on the number of false oaths). The kefel would still be 4 as this is the present value. As such, Rav Chanina's beraisa could be interpreted in a way other than as a support for Rav.

When we learned this gemara tonight, a member of my daf yomi group asked how a person could swear falsely four times? Once the beis din had absolved him of payment for the object (based on his false oath that it was stolen) why would the beis din make him swear three more times? The Rashba and Me'iri ask this question, and answer that the four oaths were made in four different batei din.

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Max Kellerman's Monday Musings Vol XLIII -Batting Orders, Developing Players and Developing One's Self

As many of you who live on the East Coast are aware, a major snow storm hit today and wreaked havoc with our schools, jobs and lives. Although I did not get a chance to listen to the entire show today, Max Kellerman touched on a couple of important points which I would like to put my own spin on.

Max talked to Joel Sherman about possible changes to the Mets batting order. They theorized that Luis Castillo could be batted in the 9th spot in the order, thereby leaving Jose Reyes as the leadoff hitter, while still giving him the opportunity to drive in base runners. The Cardinals tried this with some success recently (they even inspired a blog called http://www.pitchershiteighth.com/). I don't know how seriously the Mets are considering it, but there are some advantages to it if the number seven hitter can be selective in his at bats.

There was more talk about Brett Gardner (proclaimed by Max as a "stud" last summer, but played more like a spud). Max has somewhat tempered his raving about Gardner as he now states that Gardner is a fourth outfielder. Still Max spoke about the continuation of Gardner's development and how he could replace Johnny Damon and be a good lead off hitter as Gardner is purportedly a Brett Butler clone. Based on the minor league stats compiled by Gardner and Butler I have to disagree with Max. In four ML seasons (347 games) Butler had a .338 BA, .913 OPS and had 302 BBs and only 183 Ks. By comparison over his four ML seasons (381 games) Gardner has a .290 BA, a .774 OPS, 233 BBs and 287 Ks. The only similarities between the two (other than their first name) is that neither hit for power.

Max also talked about the Juan Marques v Michael Diaz fight which he called on Saturday night, proclaiming it as the best sporting event of the year. He made a point of stating that it was a better show than the Superbowl, but this might have something to do with the media hype over February's SB being better than the prior year. Since I did not see the fight I can't comment on whether it was entertaining, but Max's brief description of the match made it sound thrilling. As per Max, both fighters came out firing punches from the opening bell and although Marquez was ten years older than Diaz, he was able to knock him out in the Ninth round.

Max had an interesting take on Johan Santana and his cancelled MRI and elbow issues. Max theorized that the reason why Santana was magically "all better" after 35 pitches in a bullpen session is that the Mets wanted to keep him out of the World Baseball Classic and that by claiming injury, they could save face for Santana and the team so that no one would be upset that Santana was held back from the meaningless tournament. (One of the update guys had a great line that the Yankees were playing an "exhibition exhibition game" tomorrow against Team USA).

Back to the snow issue - Max led the show off with a rant about how rare snow days are and that he only had three in his entire public school career. He then digressed to talk about how pressure packed the school day was and that it was "unnatural" for kids to sit at desks for six hours before being turned loose for recess. (I hope one day to hear Max talk about how he let Esther ditch school and not do her homework, but this is quite a few years off). As part of the recess discussion, Max noted that when kids go to recess, even before they make teams to play sports, they flail their arms and run and scream. Max opined that this was a universal phenomenon and that it was related to kids needing to express energy after being cooped up in school.

Max's discussion of recess is firmly grounded in Torah thought. I recall a high school rebbi who talked to us about using our time off productively so that we would have the ability to sit when we returned from gym/recess/vacation. Indeed, the etymology of the word recreation bears out this principle - as refreshment in body or mind, as after work, by some form of play, amusement or relaxation. By engaging in recreational activity, we re-create ourselves so that we can return to productive activity.

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Sunday Night Suds - Redhook Copperhook Spring Ale

Since its going to snow eight to ten inches in New York tonight, Sunday Night Suds will turn the page on the seasons and look at Redhook's Copperhook Spring Ale.

As readers of this blog are well aware, the Redhook Brewery is a unique craft brewing company as it brews on both the west coast (Woodinville, Washington) and the east coast (Portsmouth, New Hamphire). Regardless of where they are brewed, Redhook products are under the kashruth supervision of the Orthodox Union.

Although the Redhook Copperhook calls itself a spring ale, it does not fit within the parameters of that style of beer. I generally find spring ales to be lightly flavored (citrus of course) with a paler color and nearly no bitterness. The good folks at BA have labeled this beer as an American Pale Ale, which is much closer to the flavors in the brew. Indeed, the only reason to call this a Spring Ale is that Redhook only distributes it in the spring.

The beer itself is true to its name in one respect, it pours a nice copper hue. There is more than average foam and lacing on the glass (which would impress me if I was a Belgian). The beer does not make it to the IPA level of bitterness, but does have some aftertaste which reminds you that it is in the ale family. I would recommend pairing it with poultry or other lighter meat dishes.

Redhook Copperhook Ale is under the kashruth supervision of the Orthodox Union. For the experts take on the Copperhook Ale, please click here http://beeradvocate.com/beer/profile/18134/35061 .

As always, please remember to drink responsibly and to never waste good beer unless there is no designated driver.

Finally, if you've tried this beer or any others which have been reviewed on the kosher beers site, please feel free to post your comments (anonymous comments are acceptable).

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