[Avodah] Copyright redux

[Micha Berger]

The following is from the most recent issue of Shabbat BeShabbato,
sent out by Machon Zomet under the auspices of the NRP.

-mi

RESPONSA FOR OUR TIMES
Downloading Programs from the Internet
by Rabbi Re'eim Hacohen, Rosh Yeshiva and Chief Rabbi, Otniel

Question: Recently it has been published in the name of prominent rabbis
that from the strictly halachic point of view it is not prohibited to
download songs, movies, and programs from the internet, even if the author
demands payment for them. This was explained by comparing the internet
to the case of rescuing something from "the depths of the sea"? in which
case the object belongs to whoever takes it even if the owner wants it
back. Is this really permitted, even though the secular law forbids it?

Answer: The answer depends on three basic issues: (1) The general issue of
copyright ownership? is there such a thing as stealing material that has
no physical substance at all? (2) Might it be required to pay for using
the material because the one who uses it has derived a benefit from money
belonging to somebody else? Do the secular rules and laws have an effect
on the laws of halacha? (3) Can an internet program really be considered
the equivalent of something that came "from the depths of the sea"?

(1) In the past, great rabbis have discussed the issue of copyright.
The RIFforbid copying somebody else's material and viewed copying Torah
insights as a mitzva that was linked to a sin (Responsa of the Rashba
volume 6, 286). And in Responsa Sho'el U'Meishiv it is written that
an author has the rights to his creation. On the other hand, the Beit
Yirzchak disagreed (Yoreh Dei'ah 75). However, this dispute is directly
related only to studying Torah, while in the general case all the rabbis
agree that the author has the rights to his creations. In addition, Rabbi
Zalman Nachman Goldberg sees the sale of a disk as "a limited purchase"
which does not give the purchaser the right to make a copy. However,
this is specifically related to a disk, not to downloading songs from
the internet.

(2) According to the Talmud in Bava Kama, one who derives a benefit from
an object that belongs to a colleague must pay him for using it. The
Noda B'Yehuda expanded this ruling to include a case where the benefit
was not direct but indirect. Thus, anybody who benefits from a program
or from music that somebody else created is obligated to pay, because
he received a benefit.

Civil law prohibits copying a program or music, and it also prohibits
distributing these materials on the internet. It seems reasonable to
assume that "the law of the land" applies. And in fact Beit Yitzchak
forbids copying written material, based on this law, "Dina D'Malchuta."

Another point to be taken into account is the binding effect of accepted
community practice. We have been taught, "The inhabitants of a city can
make rules about passing through the gates, about weights and measures,
and about wages of workmen" [Tosefta Bava Metzia 11:23]. Such rules are
binding on the people. This was expanded starting from the time of the
Geonim (after the Talmud was completed). For example, see Shaarei Tzedek,
Volume 4, 304:16. As is well known, the Chatam Sofer prohibited printing
the Talmud based on these rules (Choshen Mishpat 41, 79), and his opinion
was accepted by Rabbi Herzog and Rabbi Nissim (published in the TUR,
"El Hamekorot" edition). Clearly, in our case, if society makes such
rules it is not reasonable at all that only those who fear G-d will make
exceptions for themselves.

(3) As far as I can see, copying something from the internet is not at
all comparable to rescuing something from the depths of the sea. This
halacha refers to something that has been lost by the owners and is not
freely available to anybody else, and thus even if the owners claim that
they have not given up hope, the object can be kept by somebody who finds
it. In the present case, there is no tangible object that was lost, and
no owner is helplessly standing by. Rather, every person can make his
own choice whether to disobey what has been accepted by society and to
steal or not. Thus, this can be compared to a lost item that is in the
possession of many different people. In the case of the internet, if the
rabbis declare that everybody should pay for the use of a program, the
owners will not despair of receiving their money from religious people,
and as far as they are concerned this is certainly not the "depths of
the sea." Certainly as far as music and computer programs are concerned
one cannot say that the owners have despaired, since their daily legal
struggle to protect their rights clearly shows the opposite.

In summary: Beyond the strict halachic approach discussed here, the laws
commonly accepted by society obligate those who obey the halacha. The
moral demands of the Torah should never be less than what is demanded
by local law, which requires one to pay the author for the use of his
creation.