[Avodah] Copyright and e-daf

[Jacob Farkas]

R' Zev Sero wrote:
> : Copyright is not property, it's a monopoly granted to authors by the
> : will of Congress....
> 

R' Micha berger responded:
> This presumes the conclusion. I again invite you to see my earlier posts
> of notes of a shiur by R Zev Reichman (given at the peak of the Napster
> controversy) at
> <http://www.aishdas.org/avodah/vol07/v07n058.shtml> and
> <http://www.aishdas.org/avodah/vol07/v07n058.shtml#13>.
> 
> There is a very old cheirem based on the applicability of hasagas
> gevul.
> 
> We also need to address dinah dmalchusah and hezeq.

Copyright in the US is the recognition of ownership of Intellectual 
Property inasmuch as those who infringe upon said copyright by using the 
IP product outside of the realm of "fair use" are subject to the 
jurisdiction of civil court in the administration of fines or other 
procedures.

This "ownership" is subject to sale or transfer, not unlike any other 
item or entity.

Whether the law is truly just or whether fair use is too narrowly 
defined is outside the realm of the current status, that copyrights are 
an existing entity, its breach is dealt with in civil courts, like any 
other entity. Does/should Halakhah ignore that such an entity exists?

I'm not sure I understand how the rules of Hezeq apply, though, in an 
absence of Dina DeMalkhusa. Should there be no consensus that IP is an 
entity, that would force Halakhah to establish one first to apply the 
rules of Hezeq for anyone who diminishes the value of this (Halakhic) 
entity. Seeing how the Aharonim opted to enforce copyright bans via 
Hasagas Gevul it appears that creation of such an entity, by way of 
Halakhah is problematic. Hasagas Gevul is a better model, as it 
interferes with the rights of an individual who has established a model 
for his Parnassah.

However, being that the laws have created such an entity, being that 
this entity is not in direct conflict with stated Halakhic policies, it 
is difficult to argue that Dina DeMalkhusa should not apply universally.

Rashbam [Bava Basra 54b dh V'ha'amar Shmuel] says that Dina DeMalkhusa 
is self-obligated by citizens who choose to live in that country, and 
thus becomes full fledged Din. Copyright enforcement would certainly 
apply in his model.

Even Rabbeinu Yonah [BB 54b] who limits Dina DeMalkhusa to a scenario 
that is not unlike Hefqer Beis Din Hefqer would presumably apply the 
same logic to an entity that the government establishes.

--Jacob