[Avodah] Copyright redux

[Jacob Farkas]

R' Micha Berger wrote:


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

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

<snip>

> (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.

It can be argued that this Halakhah is limited to objects in the 
physical realm. In a scenario where the benefit is derived from a copied 
object, without having Dina DeMalkhusa assigning an ownership of 
copyright to said object, what is the basis to obligate payment, and to 
whom?

> 
> 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."

So long as Dina DeMalkhusa holds, with regard to Copyrights and the 
limitations of fair use. Should Dina DeMalkhusa change course, and 
define fair use to allow for file sharing (completely hypothetical), it 
would be fair to posit that Halakhah would not present an obstacle to 
file-sharing, as the ba'alus over the object does not extend to digital 
copies.

> 
> 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.

I always understood this to be one of the reasons of Dina Demalkhusa.

> 
> (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.

No one is under the illusion that their product won't be copied and 
distributed. It is expected, and there is even a call to abolish Digital 
Rights Management (DRM) altogether (DRM is a digital mechanism designed 
to prevent files from being copied). Apple's CEO, Steve Jobs, recently 
recommended that DRM has been ineffective and is urging the four major 
record labels to remove DRM from their digital content, arguing that the 
cost/effort is not worth the minimal benefit.

I could see the argument of Zuto shel Yam WRT file-sharing via the 
Internet. The product is out of the owner's realm altogether, and he has 
no ability to stop anyone from downloading it. Even if he is satisfied 
by the possibility that law enforcement may interject on his behalf, the 
reality is that no one is Someikh that his "losses" will be recovered in 
Civil Court. The handful of cases that are brought up against 
individuals for file sharing, is a drop in the sea compared to the 
amount of material that is actually pirated.

I don't think that Zuto Shel Yam trumps Dina deMalkhusa though, which 
clearly takes issue with filesharing.

--Jacob Farkas

> 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.