[Avodah] Copyright and Dina deMalkhuta

[Arie Folger]

Shalom y'all,

Numerous posters have recently discussed the applicability of DDD (Dina 
deMalkhuta) to copyright legislation, specifically as it applies to 
downloading copyrighted multimedia material. Others suggested that perhaps 
downloading is allowed based on a number of arguments.

DDD means different things to different people. Halakhically, what people mean 
nowadays under DDD is the conflation of two concepts:
* the power of taxation by the sovereign, a.k.a. the classical notion of DDD. 
This minimally applies to real estate transactinos and poll taxes. Maximally 
it can apply to a lot more.
* the power of a governing body to institute new rules and decrees necessary 
for society to function.

Actually, there is a third category: laws that derive their power from minhag 
hasokharim. If the government enforces model contracts, we can generally 
assume these to be minhag hasokharim and automatically binding.

The power of taxation by the sovereign power derives from the notion that the 
sovereign (or, perhaps, in modern democracies, the citizens as a whole) lets 
the inhabitants live in the country by his grace. Hence we owe him a debt.  
This justification for DDD requires us to fulfil laws that are to benefit the 
sovereign. Taxes, and possibly law and order fall under this.

The power of the governing body to set rules necessary or beneficial to 
society most likely DOES NOT derive from DDD, but from the power of the 
shiv'ah tovei ha'ir (7THI). Now there are lots of arguments as to who the 
7THI are, how they are appointed/elected, etc.

Some assume that the 7THI must be reuyin ladun, which is ipso facto impossible 
with a non Jewish body. Others allow lesser mortals to be among the 7THI, 
especially if they are elected, but don't allow them to enact laws that make 
property pass from one entity to another, only from individuals to the 
generality of the city. There are more views in the matter, and they are 
nicely explained in Encyclopedia Talmudit under 7THI (7= zayin).

The net result of the above is that, most likely, the Ran's position on 
whether DDD applies in EY is irrelevant to copyright. However, copyright 
legislation most likely involves the creation of a new, artificial right, as 
copying an intellectual work doesn't involve depriving someone of his 
property (the legal literature, especially on the US constitution, talks a 
lot about this aspect of intellectual property legislation). Copyright 
legislation says that what would be permitted under a doctrine of natural 
rights or whatever, now requires the consumer to pay the rights holder. In my 
opinion, this is resembles "taking from one to give the other" quite a lot, 
although the matter may not be clear cut.

Thus, the question of in what measure copyright legislation is halakhically 
binding is a good one, not easily resolved, and dependent perhaps on the 
power of the 7THI. If so, it might also involve a kind of goodness test, to 
determine whether the law really does bring the optimal benefit to the public 
or not.

IOW, life is complex and halakhah doesn't blindly accept whatever a government 
wants it to swallow. BH. This way halakhah remains a moral compass.

PS: RMB posted my source sheet on gender identity at 
<http://www.aishdas.org/avodah/faxes/gender_identity.pdf>.


Kol tuv,
-- 
Arie Folger
http://www.ariefolger.googlepages.com