Last Thursday a Boston district court judge ruled in favor of the Holy Transfiguration Monastery, finding that a former member, now an archbishop in another Orthodox sect, illegally copied seven of the monastery’s texts and posted them to his website.
It’s a fascinating case but difficult to break down as it lies at the intersection of two particularly arcane subjects — copyright law and the politics of the Orthodox church. Even the appeal ruling’s single-sentence conclusion conveyed some bewilderment: “Our pilgrimage through the complexities of copyright law concluded, we keep our words here few — for the foregoing reasons, we affirm the decision of the district court.”
At its most basic level, the dispute concerns how to balance the right of the monks to make a living — via a government-granted monopoly — against internet-age understandings of fair use, and the church’s evangelical interest in religious texts being openly available. The texts in question run the gamut from an original translation of the Psalter based on the septuagint to a set of homilies by the seventh-century bishop St. Isaac the Syrian.
The Holy Orthodox Church of North America, a small synod of which the Holy Transfiguration Monastery (HTM) is effectively the spiritual seat, and the Genuine Orthodox Church of America, which Archbishop Gregory now leads, both have their spiritual roots in the Russian Orthodox Church but separated during the movement toward ecumenism in the mid-1980s, which both groups consider a heresy. According to OrthodoxWiki, “HOCNA is not in communion with any mainstream Orthodox church.” Prior to that time, the HTM was “spiritually affiliated” with the Russian Orthodox Church Abroad.
“When the bishops … who took over after the death of the metropolitan in 1985 had a different mind and began changing the direction of the church—which is a very long and complicated story—we broke that,” says Father Pacomius, a monk at HTM who worked on several of the translations in question. “But there was no legal bond between us that gave them any control over our property or copyrights. The copyrights were in the Holy Transfiguration Monastery’s name.”
In the late 1970s, Gregory left the monastery, obtaining permission from the church to start his own monastery in Colorado. Around the same time, the first of what became a pattern of allegations of sexual improprieties began to arise. The ROCA, for its part, decreed the HTM schismatic in 1987 and suspended its leader, Archimandrite Panteleimon, saying the monastery dissolved its affiliation to protect the members from having to openly account for their sins.
In the process of researching the Holy Orthodox Church of North America, I came across this website calling the faction a “cult” and sent an email asking who operated it. Fifteen minutes later I received a phone call from Archbishop Gregory.
Which is to say, the man who has most vocally opposed the monastery’s actions — going so far as to operate a website cataloguing its many alleged misdeeds and in 2000 penning a “Call to Repentance” — has now been successfully sued by them. Given the conspicuous bad blood between Archbishop Gregory and the HTM, and the fact that other illegal copies of these works exist, which Fr. Pacomius concedes, it’s important to question why he was targeted. The monastery claims it was due to the unusual amount of work he posted online: ”He’s the only one who’s done it to this magnitude. He has infringed more than everyone else put together. And this is the second copyright infringement he’s committed against us. In 2005 he printed one of our translations without giving us credit or getting permission.”
Archbishop Gregory claims the copied texts constituted a mere “one percent of one percent of their documents,” and that by suing the monastery is “using the court to get at me. Keep in mind, they never sued anybody else.”
Furthermore, the HTM translations were in wide use at the time they dissolved their ties with ROCA.
“They’re very similar to other translations, but our Russian bishop said ‘let’s get standardized and we’ll use the translation that the monastery did in Boston.’ So we’re all using it, then they leave the church because they’ve been caught in immorality, now they’re saying to the church, which gave them the authority to translate it, ‘no you can’t use it anymore or you have to recognize us.’” As to any further action, he says, “We’re going to talk to the lawyers and see what we can do.”
“One of the works copied was called the Octoechos, his pdf ran to 300 pages,” says Fr. Pacomius. “The work called the dismissal hymns, his pdf ran to 600 pages. Both of those were unpublished, so he was forestalling our right to decide when to publish these works and in what form.”
“The archbishop’s lawyers said our work was merely derivative. We take older translations, cobble them together, they used the word ‘cobble’ over and over again, and slap our copyright on them and sue other people for infringement. We called their bluff. The originals are ancient texts in the public domain. In some cases we consulted previous translations. But we revised them so much that it’s not a simple matter of copying; there isn’t what is called ‘substantial similarity.’”
Needless to say, these distinctions are often difficult to make. “We could have put up others, the translations are so close,” says Archbishop Gregory. ”When you say ‘Holy God, Holy Mighty, Holy Immortal, have mercy on us,’ there’s only one way you can translate that from the Greek. But now if we put up a translation that was made in 1860, and there are translations from the Russian church done very well in England, they could say ‘hey that’s our translation.’ And the judge there in Boston will say ‘yup, that’s word-for-word,’ and find us at fault.”
Some readers might instinctively recoil at the notion of the government intervening to prevent the open dissemination of religious texts, which is what happened in this case. Still others might object to religious texts being used as a revenue-generating device. In any case, given contemporary trends toward open information and free-content business models, it might have made more practical sense for the monastery to post its own pdfs of the texts online for free. Had they done so the entire dispute would have been avoided and the wider distribution would have probably led to more people buying the lucrative hard copies anyway — the kind of people who want a copy of the Horologion aren’t generally going to settle for a pdf on an iPad. It’s also worth noting that the dispute wouldn’t have occurred if the monastery and Archbishop Gregory had remained in the same synod.
Nevertheless, it’s pretty clear that by any reasonable definition, copyright infringement occurred. The court made the right decision, but was the monastery right to seek one? The argument that making the files available cut into the monks’ ability to make a living seems exceedingly weak. Moreover, even if it did — and I very much doubt it would — if the freely-available files led to more people becoming interested in the True Faith, wouldn’t that be worth the potential loss? It’s hard to see the monastery’s actions as motivated by anything other than personal resentment. And it isn’t behavior one would expect from a community concerned with saving souls.
Jordan Bloom is the Associate Editor of TAC. Follow him on Twitter.