[Avodah] Copyright redux

[Jacob Farkas]

> RMB:
> <<There is a long history of protecting the rights of published sefarim,
> not allowing others to republish the material on their own.>>

Rabbi Folger wrote:
> As you did mention, that was based on cherem and on the classicla notion
> of hassagat gevul. In fact, the time alotted to recoup expenses and make
> profit was much shorter than current copyrights, and it was clearly in
> order to promote a societal ood: having more seforim printed. Thus, the
> protection afforded in days of yore supports the notion that copyright is
> a crated right and that it cannot be arbitrarily legislated. Exactly my
> speculation.
> 

In previous posts, I mentioned similarly, that application of Hasagas 
Gevul to today's copyright laws are questionable, and therefore 
suggested that the possible Halakhic transgression would be tied to DDD, 
as understood by some Rishonim.

In the absence of DDD or other similar Taqanos if created by today's 
Rabbanim, the Haramim of yore may not apply because they were not 
directed at individual users, and were focused on the livelihood of the 
content creator, and was used to protect his source of income. Allowing 
a rival publisher to profit from yenem's work was damaging to yenem, and 
thus prohibited.

I think we are all in agreement on this point. (RMB may have issue with 
copyright infringement as Hezeq). Without touching the gray area of 
Yosher, of course.

> <<Also, the SuM's reasoning raises the notion of obeying the society's
> moral code well beyond any limitations of DDD or even any loopholes in
> any laws based on the moral stance.>>
> 

Rabbi Folger wrote:
> But the flip side is to consider such artificial rights problematic,
> because the transfer of rights may be unwarranted.

The definition of artificial rights is where I am somewhat confused. As 
copyrights do create a tangible ownership, albeit via secular courts, 
should this entity be dismissed by Halakhah? I ask this as a staunch 
opponent of current copyright laws. Nevertheless, it is tough to ignore 
that a tangible ownership is held by the content creator, the definition 
and parameters of this ownership is government granted, is this 
categorically non-existent? In general, how does Halakhah address 
concepts that are 'created' by modern markets, i.e. if today's market 
allows for sale of next year's crop, a standard case of Davar Shelo Ba 
leOlam, is this transaction ignored because this entity is not valid in 
Halakhah?

> 
> <<This also gets to the issue of ve'asisa hatov vehayashar, where the din
> is simply to be moral rather than the din defining specific behavior.
> However, that's a topic for another post.>>
> 

Rabbi Folger wrote:
> Same as above. It is hard to make patents and copyrights such a simple and
> straigthforward moral issue. Personally, I feel that we need to work
> within the system, but may be we should both lobby against excessive
> intellectual property laws by pointing out how dubiously moral they can
> become, and to maximize the available consumer rights, including legally
> available loopholes, insofar as these correspond to halakhcally
> permissible actions. That last caveat is of course enormous and requires
> that much more be written on the subject. Wholesale acceptance of a party
> line does not equal analysis.

The 'system' knows no precedent for digital works, or of individuals 
copying material for non-commercial usage. [Of course, every Mehabeir 
Sefarim, or Motzi LeOhr has pasqened that photocopies of their Sefarim 
(or any part thereof) is against the 'Reshus' of the author and 
publisher, as well as against the law, at times citing DDD...] These are 
entities that did not exist in earlier generations. I agree that 
'morally' this is a gray area, which is why if filesharing is Assur, I 
don't see a reason beyond DDD.

Can we ignore DDD for a widely recognized entity, is there precedent for 
ignoring newly created entities when they don't exist in Halakhah?

--Jacob Farkas