Anonymous

Intellectual & Digital Property: Difference between revisions

From Halachipedia
m (Text replacement - " Biblical" to " biblical")
 
Line 9: Line 9:
* Shraga Hameir 4:77 forbids copying even one page even for personal use without permission. Practical Laws of Money p. 122 quotes Rav Elyashiv, Rav Moshe, Rav Zalman Nechemya Goldberg, Mishpat Shlomo 3:10, Rabbi Yehoshua Neuwrith, and Rabbi Benayhu Dayan (Divrei Benayahu 4:35) as holding that it is forbidden to copy copyrighted material even for personal use.</ref> Many other poskim hold that it isn’t actual stealing since intellectual property isn’t something tangible. Rather it is forbidden to commercial violate a copyright but for personal use it would be permitted to copy a small portion of something copyrighted.<ref>  
* Shraga Hameir 4:77 forbids copying even one page even for personal use without permission. Practical Laws of Money p. 122 quotes Rav Elyashiv, Rav Moshe, Rav Zalman Nechemya Goldberg, Mishpat Shlomo 3:10, Rabbi Yehoshua Neuwrith, and Rabbi Benayhu Dayan (Divrei Benayahu 4:35) as holding that it is forbidden to copy copyrighted material even for personal use.</ref> Many other poskim hold that it isn’t actual stealing since intellectual property isn’t something tangible. Rather it is forbidden to commercial violate a copyright but for personal use it would be permitted to copy a small portion of something copyrighted.<ref>  
* Rama responsa 10, Chatom Sofer CM 79, Rabbi Akiva Eiger cited by Chatom Sofer CM 2:41 all restricted printing of the same versions of sefarim because of a cherem and not a general isur gezel. Shevet Halevi 10:276 believes that this isn't a proof and they only spoke about a non-copyrighted sefer such as gemara but not chidushim.
* Rama responsa 10, Chatom Sofer CM 79, Rabbi Akiva Eiger cited by Chatom Sofer CM 2:41 all restricted printing of the same versions of sefarim because of a cherem and not a general isur gezel. Shevet Halevi 10:276 believes that this isn't a proof and they only spoke about a non-copyrighted sefer such as gemara but not chidushim.
* Divrei Benayahu 4:289 quotes that Rav Tzvi Pesach Frank held that there was no problem to publish the Brisker Rav’s tapes without his permission because he doesn’t own the Torah he taught.
* Divrei Benayahu 4:289 quotes that Rav Tzvi Pesach Frank held that there was no problem to publish the Brisker Rav’s tapes without his permission because he doesn’t own the Torah he taught. However, Igrot Moshe 4:40:19 argues because he could have an opinion about how he is quoted and in what context.
* [http://www.hebrewbooks.org/pdfpager.aspx?req=619&pgnum=423 Bet Yitzchak YD 2:75] disagrees with the Shoel Umeishiv since there is no source that says that someone can own intellectual property. Similar approaches are adopted by Mishpatei Shmuel 35 and Shurat Hadin v. 16 p. 290 n. 12.
* [http://www.hebrewbooks.org/pdfpager.aspx?req=619&pgnum=423 Bet Yitzchak YD 2:75] disagrees with the Shoel Umeishiv since there is no source that says that someone can own intellectual property. Similar approaches are adopted by Mishpatei Shmuel 35 and Shurat Hadin v. 16 p. 290 n. 12.
* Shevet Halevi 4:202 allows copying some pages for students. He reasons that it isn’t considered ''yored lumanut chavero'' by copying a few pages for educational purposes where the students were not going to buy all the sefarim anyway. Tzitz Eliezer 18:80, Minchat Tzvi 1:164, Rav Sheinberg (4:287), Rav Ben Zion Bar Shalom (Practical Laws of Money p. 122), and Mishna Halachot agree. Mishnat Yehoshua p. 155 cites Rav Ben Tzion Abba Shaul (Chukat Mishpat) and Rav Shlomo Zalman Auerbach who also permit copying individual pages for personal use. Mishnat Yehoshua p. 156 agrees with Rav Shlomo Zalman. Rav Meir Mazuz (cited by Practical Laws of Money p. 122) allows copying pages of a book but not a CD.</ref> Within the approach that permits copying for personal use the poskim qualify that it is only permitted to copy small portion such that a person wouldn't have anyway bought the book for that portion. But if copying portions prevents a person from buying the book it is forbidden.<ref>
* Shevet Halevi 4:202 allows copying some pages for students. He reasons that it isn’t considered ''yored lumanut chavero'' by copying a few pages for educational purposes where the students were not going to buy all the sefarim anyway. Tzitz Eliezer 18:80, Minchat Tzvi 1:164, Rav Sheinberg (4:287), Rav Ben Zion Bar Shalom (Practical Laws of Money p. 122), and Mishna Halachot agree. Mishnat Yehoshua p. 155 cites Rav Ben Tzion Abba Shaul (Chukat Mishpat) and Rav Shlomo Zalman Auerbach who also permit copying individual pages for personal use. Mishnat Yehoshua p. 156 agrees with Rav Shlomo Zalman. Practical Laws of Money p. 100 discusses whether it is permitted to copy a sefer for personal use without permission. He quotes many who say that it is permitted and many others who forbid. This question centers on whether it is stealing to copy someone’s work. He cites a personal letter from Rav Ovadia Yosef permitting this. Rav Meir Mazuz (cited by Practical Laws of Money p. 122) allows copying pages of a book but not a CD.</ref> Within the approach that permits copying for personal use the poskim qualify that it is only permitted to copy small portion such that a person wouldn't have anyway bought the book for that portion. But if copying portions prevents a person from buying the book it is forbidden.<ref>
* [https://www.koltorah.org/halachah/halachah-and-copyright-laws-by-rabbi-chaim-jachter Rabbi Jachter] cites Rav Shlomo Zalman (Nishmat Avraham 4:204-206) held that copying small portions of a book is permitted if one wouldn't have bought the book anyway.
* [https://www.koltorah.org/halachah/halachah-and-copyright-laws-by-rabbi-chaim-jachter Rabbi Jachter] cites Rav Shlomo Zalman (Nishmat Avraham 4:204-206) held that copying small portions of a book is permitted if one wouldn't have bought the book anyway.
* Similarly, Rabbi Hershel Schachter in a [http://www.yutorah.org/lectures/lecture.cfm/788264/Rabbi_Hershel_Schachter/Copyright_Law shiur on yutorah.org, titled Copyright Law] explained that since intellectual property isn't tangible there's the inventor or author doesn't own it biblically. However, there is a rabbinic ownership on it since he did create it similar to someone who plants an ownerless tree is considered an owner rabbinically (see Rav Chaim Malveh 23:1). If the owner is selling the product then the rabbinic ownership of the intellectual property allows the author the rights to his product and taking them without paying is stealing. However, if the rabbinic ownership doesn't give him exclusive rights to the intellectual property. That is, if he has no intention to sell them then there is no right just to hold onto them. Therefore, if a person is a potential buyer it is forbidden to violate a copyright. However, if the author doesn't have any copies to sell or the person isn't a potential customer the author has no right to restrict him copying the intellectual property for personal use.
* Similarly, Rabbi Hershel Schachter in a [http://www.yutorah.org/lectures/lecture.cfm/788264/Rabbi_Hershel_Schachter/Copyright_Law shiur on yutorah.org, titled Copyright Law] explained that since intellectual property isn't tangible there's the inventor or author doesn't own it biblically. However, there is a rabbinic ownership on it since he did create it similar to someone who plants an ownerless tree is considered an owner rabbinically (see Rav Chaim Malveh 23:1). If the owner is selling the product then the rabbinic ownership of the intellectual property allows the author the rights to his product and taking them without paying is stealing. However, if the rabbinic ownership doesn't give him exclusive rights to the intellectual property. That is, if he has no intention to sell them then there is no right just to hold onto them. Therefore, if a person is a potential buyer it is forbidden to violate a copyright. However, if the author doesn't have any copies to sell or the person isn't a potential customer the author has no right to restrict him copying the intellectual property for personal use.
* Mishnat Yehoshua p. 157-8 argues that everyone can agree that copying a small portion of a book for a source sheet or the like is permitted since the authors don't care if you do that. Even though the copyrights explicitly state that no portion of the book can be copied that is merely an exxegration because they don't want someone to take advantage and copy a large portion. However, they wouldn't be makpid on a tiny portion. Even if someone is in fact makpid he has knowledge that it is going to happen anyway since it is the universal practice and they wouldn't want to cause others to be sinning. In truth this isn’t agreed upon as the Sharaga Hameir and Practical Laws of Money point out that some forbid copying even one page of a book.</ref>
* Mishnat Yehoshua p. 157-8 argues that everyone can agree that copying a small portion of a book for a source sheet or the like is permitted since the authors don't care if you do that. Even though the copyrights explicitly state that no portion of the book can be copied that is merely an exxegration because they don't want someone to take advantage and copy a large portion. However, they wouldn't be makpid on a tiny portion. Even if someone is in fact makpid he has knowledge that it is going to happen anyway since it is the universal practice and they wouldn't want to cause others to be sinning. In truth this isn’t agreed upon as the Sharaga Hameir and Practical Laws of Money point out that some forbid copying even one page of a book.</ref>
## There are some poskim who are more inclined to allow copying small selections for personal or educational purposes if the material is Torah.<ref>Mordechai (Bava Metsia n. 293) writes that one may not copy from a sefer torah that one is watching. However, a talmid chacham who doesn’t have another sefer can do so. He suggests two reasons for this: (1) The owner knew that the talmid chacham would copy it if he didn’t have another sefer and he gave it with that understanding. (2) Even if he does care, it is permitted since is for the purpose of learning Torah. This is based on Mishlei 6:35 and Tosefta Bava Kama 7:13. The Rama 292:20 codifies the Mordechai. The Sama 292:45 sides with the first reason but if the owner didn’t allow it it would be forbidden. This is also implied by the Rama 292:20. The Shach 292:35 and Gra 292:46 stand by both reasons of the Mordechai based on the pasuk in Mishlei 6:30 it is sometimes permitted to “steal” in order to learn. [See however, Rif in teshuva 133 writes that stealing a sefer to copy it is stealing and learning from it is a mitzvah haba baveirah.]
## There are some poskim who are more inclined to allow copying small selections for personal or educational purposes if the material is Torah.<ref>Mordechai (Bava Metsia n. 293) writes that one may not copy from a sefer torah that one is watching. However, a talmid chacham who doesn’t have another sefer can do so. He suggests two reasons for this: (1) The owner knew that the talmid chacham would copy it if he didn’t have another sefer and he gave it with that understanding. (2) Even if he does care, it is permitted since is for the purpose of learning Torah. This is based on Mishlei 6:35 and Tosefta Bava Kama 7:13. The Rama C.M. 292:20 codifies the Mordechai. The Sama 292:45 sides with the first reason but if the owner didn’t allow it it would be forbidden. This is also implied by the Rama 292:20. The Shach 292:35 and Gra 292:46 stand by both reasons of the Mordechai based on the pasuk in Mishlei 6:30 it is sometimes permitted to “steal” in order to learn. [See however, Rif in teshuva 133 writes that stealing a sefer to copy it is stealing and learning from it is a mitzvah haba baveirah.]
* Bet Yitzchak YD 2:75 suggests that the reason it is permitted to copy the sefer even against the will of the owner is because of ''kofin al midat sedom''. However, this seems to be contradicted by the poskim who hold that we do not do ''kofin al midat sedom'' to force someone else to allow them to use their property (Rama CM 363:6). See the Rif responsa 34 writes that it is forbidden to copy from a stolen sefer. Rashba responsa 6:286 quotes this. Mishnat Yehoshua p. 132 writes that this isn't a contradiction to the Mordechai since here one stole a tangible item.
* Bet Yitzchak YD 2:75 suggests that the reason it is permitted to copy the sefer even against the will of the owner is because of ''kofin al midat sedom''. However, this seems to be contradicted by the poskim who hold that we do not do ''kofin al midat sedom'' to force someone else to allow them to use their property (Rama CM 363:6). See the Rif responsa 34 writes that it is forbidden to copy from a stolen sefer. Rashba responsa 6:286 quotes this. Mishnat Yehoshua p. 132 writes that this isn't a contradiction to the Mordechai since here one stole a tangible item.
* Mishnat Yehoshua p. 132 and Tzitz Eliezer 18:80 apply this Mordechai to the discussion of copying intellectual property of Torah.</ref>
* Mishnat Yehoshua p. 132 and Tzitz Eliezer 18:80 apply this Mordechai to the discussion of copying intellectual property of Torah.</ref>
Anonymous user