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Intellectual & Digital Property: Difference between revisions

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# Many poskim hold that it is stealing to copy someone else’s intellectual property or copyrighted material.<ref>Mishnat Yehoshua cites Igrot Moshe 4:40:19, Rav Elyashiv (Mishnat Zchiyot Hayotzer ch. 18, Emek Hamishpat), Teshuvot Vhanhagot 1:829, Netsiv in Meishiv Dvar 24, Minchat Yitzchak 9:153, and Shevet Halevi 10:276 forbid copying copyrighted materials because it is stealing intellectual property. Even though the law isn't enforced and many people copy the copyrighted materials that doesn't permit it since according to these poskim copying intellectual property is stealing which is forbidden even if many others do it. Mishnat Yehoshua p. 154 quotes Rav Asher Weiss as holding that it is stealing to violate a copyright. This is also implied from Rav Shimon Schkop b"k siman 1. This is also the conclusion of Piksei Din of Yerushalayim Mamonot Ubirurei Yuchsin v. 13 p. 293.
# Many poskim hold that it is stealing to copy someone else’s intellectual property or copyrighted material.<ref>Mishnat Yehoshua cites Igrot Moshe 4:40:19, Rav Elyashiv (Mishnat Zchiyot Hayotzer ch. 18, Emek Hamishpat), Teshuvot Vhanhagot 1:829, Netsiv in Meishiv Dvar 24, Minchat Yitzchak 9:153, and Shevet Halevi 10:276 forbid copying copyrighted materials because it is stealing intellectual property. Even though the law isn't enforced and many people copy the copyrighted materials that doesn't permit it since according to these poskim copying intellectual property is stealing which is forbidden even if many others do it. Mishnat Yehoshua p. 154 quotes Rav Asher Weiss as holding that it is stealing to violate a copyright. This is also implied from Rav Shimon Schkop b"k siman 1. This is also the conclusion of Piksei Din of Yerushalayim Mamonot Ubirurei Yuchsin v. 13 p. 293.
* How is it possible for it to be stealing if intellectual property isn’t tangible? Mishnat Yehoshua p. 130-1 suggests two answers. First, the Maharshal responsa 36 writes that one can’t buy something not tangible if it will later become tangible but something that always is non-tangible one can buy. Second, intellectual property is a product of a person’s mind which is tangible and so it is considered something tangible. Rav Asher Weiss (cited by Mishnat Yehoshua p. 154) holds it is possible to own intellectual property since it is a product of a person and it is no different than how a person owns the products of his field. </ref> Accordingly, it is forbidden even for personal use.<ref>Based on this approach Mishnat Yehoshua p. 153-4 writes that it would be forbidden to violate the copyright of a non-Jew since it is stealing. Additionally, it would be forbidden even for personal use. Lastly, it would be forbidden to copy even if it is a derivative source and not the original ones sold.
* How is it possible for it to be stealing if intellectual property isn’t tangible? Mishnat Yehoshua p. 130-1 suggests two answers. First, the Maharshal responsa 36 writes that one can’t buy something not tangible if it will later become tangible but something that always is non-tangible one can buy. Second, intellectual property is a product of a person’s mind which is tangible and so it is considered something tangible. Rav Asher Weiss (cited by Mishnat Yehoshua p. 154) holds it is possible to own intellectual property since it is a product of a person and it is no different than how a person owns the products of his field. </ref> Accordingly, it is forbidden even for personal use.<ref>Based on this approach Mishnat Yehoshua p. 153-4 writes that it would be forbidden to violate the copyright of a non-Jew since it is stealing. Additionally, it would be forbidden even for personal use. Lastly, it would be forbidden to copy even if it is a derivative source and not the original ones sold.
* 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 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.
* [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.</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.</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>
## Some say that if the author is selling his lectures, music, or computer program or the like, then there's a Halachic copyright. As such, it is a form of stealing to use the product without paying for it. If he is not selling it, however, or he doesn’t have any copies to sell, or you are not a potential costumer, the issue of a Halachic copyright does not apply. <ref>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. 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.</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.
* 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. 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.</ref>
# Some poskim write that a person may not violate a copyright because of [[chilul Hashem]], desecration of God's name.<ref> Shoel Umeishiv 1:44 writes that it is obvious that one may not violate a copyright. Heaven forbid, our Torah shouldn’t be seen as inferior to another field of knowledge. Mishnat Yehoshua p. 129 suggests that the Shoel Umeishiv forbids violating a copyright because doing so would be a chilul Hashem. If non-Jews agree that is wrong to steal intellectual property, how could the Torah, a book of divine morals, permit it?! See Hitorerut Teshuva 232 for similar approach.</ref> Otherwise disagree.<ref>Mishna Yehoshua p. 130 isn’t ready to accept the argument of the Shoel Umeishiv since it has no source. Bet Yitzchak 2:75 disagrees with the Shoel Umeishiv.</ref>  
# Some poskim write that a person may not violate a copyright because of [[chilul Hashem]], desecration of God's name.<ref> Shoel Umeishiv 1:44 writes that it is obvious that one may not violate a copyright. Heaven forbid, our Torah shouldn’t be seen as inferior to another field of knowledge. Mishnat Yehoshua p. 129 suggests that the Shoel Umeishiv forbids violating a copyright because doing so would be a chilul Hashem. If non-Jews agree that is wrong to steal intellectual property, how could the Torah, a book of divine morals, permit it?! See Hitorerut Teshuva 232 for similar approach.</ref> Otherwise disagree.<ref>Mishna Yehoshua p. 130 isn’t ready to accept the argument of the Shoel Umeishiv since it has no source. Bet Yitzchak 2:75 disagrees with the Shoel Umeishiv.</ref>  
# Some poskim write that a person must pay for the right to copy copyrighted material otherwise it is considered benefiting from someone else’s property.<Ref>Mishnat Yehoshua p. 145 cites Rav Zalman Nechemya Goldberg as holding that one is obligated to pay for the right to copy a book otherwise it is considered benefiting from someone else’s property for which one would have to pay for (Bava Kama 20b). Divrei Malkiel 3:157 and Amudei Esh 12 agree that benefiting from intellectual property of someone else is benefiting from their property. </ref> But others disagree since once one bought the book it is completely his.<ref>Mishnat Yehoshua p. 149 argues that you only pay for benefiting from someone else's property if it is still theirs but once one buys it there's no issue of benefiting from it. Even though the Nodeh Beyehuda CM 24 implies that there's an obligation to pay for benefitting from a layout of someone else even though the actual material belongs to him that is only because the layout is still his friends and therefore the whole thing is still connected to being someone else's property. However, in our case one already bought the item completely. Also some disagree with the Nodeh Beyehuda including Yehoshua Malko CM 22.</ref>
# Some poskim write that a person must pay for the right to copy copyrighted material otherwise it is considered benefiting from someone else’s property.<Ref>Mishnat Yehoshua p. 145 cites Rav Zalman Nechemya Goldberg as holding that one is obligated to pay for the right to copy a book otherwise it is considered benefiting from someone else’s property for which one would have to pay for (Bava Kama 20b). Divrei Malkiel 3:157 and Amudei Esh 12 agree that benefiting from intellectual property of someone else is benefiting from their property. </ref> But others disagree since once one bought the book it is completely his.<ref>Mishnat Yehoshua p. 149 argues that you only pay for benefiting from someone else's property if it is still theirs but once one buys it there's no issue of benefiting from it. Even though the Nodeh Beyehuda CM 24 implies that there's an obligation to pay for benefitting from a layout of someone else even though the actual material belongs to him that is only because the layout is still his friends and therefore the whole thing is still connected to being someone else's property. However, in our case one already bought the item completely. Also some disagree with the Nodeh Beyehuda including Yehoshua Malko CM 22.</ref>
==Solutions to Solidify a Halachic Copyright==
==Solutions to Solidify a Halachic Copyright==
# Some poskim solve the issue by explaining that if the author made a stipulation that the material is only sold to be read and not to be copied it is binding according to all poskim.<ref>See Piskei Din (Shurat Hadin v. 16 p. 290 n. 12) who assume that a copyright could serve as a stipulation.
# Some poskim solve the issue by explaining that if the author made a stipulation that the material is only sold to be read and not to be copied it is binding according to all poskim.<ref>See Piskei Din (Shurat Hadin v. 16 p. 290 n. 12) who assume that a copyright could serve as a stipulation.