[Avodah] Copyright

Micha Berger via Avodah avodah at lists.aishdas.org
Thu Aug 13 12:36:00 PDT 2015

Back in Jun 2001, Napster was in the news, and I heard a shiur from R
Zev Reichman, then of REITS' Kollel Elyon. So at the first on-list
mention of copyrights, I used it as an excuse to post a summary on-list at
<http://www.aishdas.org/avodah/vol07/v07n058.shtml#04> and
<http://www.aishdas.org/avodah/vol07/v07n058.shtml#13>. It's been 14
years, and I just learned of a beautiful einfahl by R' Asher Weiss
on the subject. So, I'm reviewing the list, and adding to it.

(v7n58 #13 is marked ">", #4 is marked ":".)

> 1- Dina dimalchusa issues:

> According to Tosafos on Gittin, dina dimalchusah dinah is only on
> taxation.

> The Beis Yitzchak does rule that ddd applies here. However, RZR opined
> that ddd still wouldn't apply apply to Sony Bono's law that was aimed
> specifically at Disney, allowing them to extend their copyright on some
> animated characters. It's not an evenly applied rule.

> 2- I already cited the most chamur, the Sho'el uMeishiv 1:44, who goes
> beyond ddd.

: The Sho'el uMeishiv's position that if secular society saw the moral
: obligation to protect an author's creation and publisher's investment, it
: is impossible that the Torah is less moral. He therefore assigns ownership
: of ideas to their creator. And since, in halachah, ownership is eternal
: (barring proactively making a kinyan), he paskened that copyrights
: are lehalachah also eternal.

: Note that he isn't claiming dina dimalchusah. There are grounds for
: that too, and even for turning that dina dimalchusah ownership into a
: halachic eternal ownership. But that's for a discussion of the halachos
: of copyright.

: I just want to note the SuM's assumption, and the importance he assigns
: moral rights identified by the surrounding culture.

> RZR wondered if the SuM would also recognize the French philosophy of
> copyright: that the artist could sell reproduction and profit rights, but
> eternally retains rights to controlling how the idea is changed. (So even
> if you sell a painting, the owner is allowed to copy it, but not modify
> it.) After all, this is also a secularly identified moral right. Would
> it be a halachah only in France?

> 3- Hasagas gevul:

> There is an old cheirem, invoked in many if not most haskamos for a few
> centuries, against copying sefarim. (The SuM mentions it.) The cheirem
> is at least as old as the publication of Tomer Devora (about a century
> after it was written) -- because it's mentioned in the haskamos. That
> if one copies the sefer beli reshus, or buys such a copy he is subject
> to the cheirem and will lose all the berachos showered on people who
> learn TOmer Devorah listed in the begining of the haskamah.

> The Chasam Sofer traces the cheirem back to the Maharam Padua's edition of
> the Rambam. After he invested all the time and money preparing the plates,
> a non-Jewish publisher, Justinian, took those plates and printed his
> own copy of the Yad, charging one gold coin less than the original. The
> Rama said that anyone who bought a Justinian edition was under cheirem,
> as they prevented him from recouping his loss.

> Given this lashon, the CS concludes that the problem is hasagas gezul.

> However, as RZR noted, hasagas gevul only applies to unfair competition,
> not to give copies away as a tzadakah or a fundraiser.

> This is also the conclusion of R' Moshe. R' Bleich, back when he was
> a talmid at Torah Vadaas found a rare publication of a notebook of R'
> Chaim and had it published as a TvD fundraiser. The original publisher
> found out about it and cried "hasagas gevul". They went to R' Moshe who
> ruled in favor of R' Bleich.

> 4- Issur geneivah:

> R' Bleich himself, when writing on the subject, quotes "ein berei'ach
> mishum me'ilah", and that there is no geneivah without a cheftzah.

> 5- Hezek

> Now we're in "Micha's 2 cents" territory. Li nir'eh that even for a
> tzedakah to do it, even if not hasagas gevul, you are causing hezek to
> someone who would otherwise earn money.

> Even if not quantifiably assur, I would want to invoke bal tishaktzu on
> this one.

> 6- Chilul Hashem

> In a case like Napster, where the case will have a kol and a trial in
> the press, I would think that the risk of chillul Hashem, and therefore
> *dinei nefashos*, is enough to assur it -- even in cases where the
> copying would be found to be technically legal.

7- Chamas

So I heard from R' J Ziring (YUTorah.org) that R' Asher Weiss in a 2013
shiur compared the theft of intellectual property to the dor hamabul
(after revisiting some of the above). I found a blog post of RJZ's that
describes it <http://j.mp/1JWfAVq> or

    Chazal explain that the sin of the dor hamabul was that they would
    each steal less than a shaveh perutah. Thus, in the aggregate
    they would destroy people's livelihood, but none of them could be
    prosecuted in court. From here he argued that there is an issur to do
    something, which while not formally theft, lends to a society that
    destroys other people's financial well being. If no one respects
    intellectual property, then inventors, writers, and the like will
    have no way of supporting himself. Thus, even if no one can properly
    be called a gazlan, they have all participated in chamas.

Tir'u baTov!

> PS: While on the subject, I should point out that we obtain reshus to
> include any emails that are reposted on Avodah. When asking, I make it
> clear that a copy will appear in the web archive as well.

Micha Berger             The same boiling water
micha at aishdas.org        that softens the potato, hardens the egg.
http://www.aishdas.org   It's not about the circumstance,
Fax: (270) 514-1507      but rather what you are made of.

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