[Avodah] Downloading: An Essay for the MTA Academy News

[Yosef Gavriel Bechhofer]

This issue's ethical dilemma is:
“Downloading from LimeWire. You're not paying, but you're not taking 
anything tangible. Is this kosher?”
Technical note - LimeWire is a "P2P" or peer-to-peer networking service, 
in which users upload anything - movies, music, games, software - and 
can be downloaded, for free, by virtually anyone.

In my experience whenever I hold a Q&A session with a group of teens or 
college students, the question of downloading music, etc., is one of the 
first questions that will be raised. Moreover, even boys and men who in 
other issues are meticulous in their quest to act /lifnim me'shuras 
ha'din/ (beyond the letter of the law), when it comes to this issue, 
they very much want to know the minimalist Halachic position – i.e., how 
much they can “get away with” and still technically be within the bounds 
of Jewish law.

Accordingly, let me begin by stating that from an /ethical/ perspective, 
it behooves a /Be en Torah/ who aspires to rise above mere technical 
compliance with Halacha, to refrain from any form of downloading which 
is questionable. Most of us – although we may deny this when we are in 
rationalization mode – know very well when what we are doing falls into 
that gray area. If you are still unsure as to the definition of this 
category, by all means consult one of your /Rabbeim/.

Returning, however, to the question of the minimalist Halachic position 
in this area, Rabbi Yitzchak Yosef /shlita/ (the son of Rabbi Ovadia 
Yosef /shlita/) refers to the Gemara in /Bava Metzia/ (24a-b) that 
discusses an object that was swept away by a tidal wave (/zuto shel 
yam/). In that case, we regard the object as a lot item whose owner has 
given up all hope of retrieval (/l'achar yei'ush/). This is the case 
even if the owner watching the tidal wave sweep away his possession 
declares and affirms that he is not giving up the hope of retrieving his 
object. Under the circumstances, his declaration is meaningless, as the 
hope of retrieval is regarded as little more than a fantasy.

Any music that is freely and widely available on the web falls into this 
category. Any hope that the owner may have of retaining or retrieving 
his intellectual property is futile and meaningless. Hence, one would be 
permitted to download such music for personal use.

Please note that this is not /carte blanche/. This logic will not permit:

   1.

      Uploading music to such sites.

   2.

      Copying from CDs or DVDs.

   3.

      Selling the downloaded music to others or sharing it with people
      who cannot access it themselves over the Internet.

   4.

      Downloading music from hacking sites.



--
Posted By YGB to YGB - יג"ב 
<http://rygb.blogspot.com/2008/11/downloading-essay-for-mta-academy-news.html> 
at 11/21/2008 03:56:00 P
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