Intellectual & Digital Property
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Revision as of 06:10, 3 December 2020 by YitzchakSultan (Text replacement - " Biblical" to " biblical")
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For Commercial Use
For Personal Use
- Many poskim hold that it is stealing to copy someone else’s intellectual property or copyrighted material. Accordingly, it is forbidden even for personal use. 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. 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.
- There are some poskim who are more inclined to allow copying small selections for personal or educational purposes if the material is Torah.
- It is a pious practice never to violate the wishes of the copyright holder.
- Some poskim write that a person may not violate a copyright because of chilul Hashem, desecration of God's name. Otherwise disagree.
- 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. But others disagree since once one bought the book it is completely his.
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. Others disagree since it isn’t a genuine stipulation as the seller doesn’t have interest in giving back the money for the book if he violated stipulation.
- Some poskim solve the issue by explaining that if the author writes that he’s only selling the material with respect to being able to read it but not to copy it (selling it partially) it is binding according to all poskim. Again others disagree.
- Summary: The poskim discusses whether there is a real ownership of an intellectual property. Shoel Umeishiv 1:44, Rav Shimon Schkop Bava Kama siman 1, Netsiv in Meishiv Dvar 24 hold that there is a halachic ownership of intellectual property, while the Mishpatei Shmuel 35 and Bet Yitzchak YD 75 argue that there's no ownership of intellectual property. See Shurat Hadin v. 16 p. 290 n. 13 and Yabia Omer CM 7:9. Shurat Hadin n. 14 points out that even the Bet Yitzchak's approach wouldn't allow stealing intellectual property because the originator of the invention can restrict others from using it.
- Mishnat Yehoshua p. 152 writes that everyone agrees that violating a copyright for commercial use is forbidden because of (1) dina dmalchuta (2) minhag and (3) hasagat gevul. This is obvious from Shevet Halevi 4:202 and many others. Practical Laws of Money p. 117 cites a letter from Rav Karelitz, Rav Elyashiv, and Rav Wosner about how it was forbidden to buy from the person who hacked the bar ilan CD and sold pirated copies because it was helping a sinner.
- Practical Laws of Money p. 117 quotes Emek Hamishpat 4 (quoting Rav Nissim Karelitz) as holding that it is forbidden buy illegal software or computers with illegal software because of gezel and supporting those who steal.
- 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. Yabia Omer CM 7:9 implies that he accepts ownership of intellectual property.
- 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.
- 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.
- 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.
- 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.
- 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 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.
- 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.]
- 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.
- Mishnat Yehoshua p. 155 adds though that it is pious not to copy for personal use since the authors don't want that.
- 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.
- 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.
- 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.
- 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 benefiting 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.
- See Piskei Din (Shurat Hadin v. 16 p. 290 n. 12) who assume that a copyright could serve as a stipulation.
- Can every copyright serve as a stipulation? Mishnat Yehoshua p. 135 suggests that perhaps it can just like Tosfot Kiddushin 49b and Netivot 207:1 explain that a clear expression of a person’s intent is the equivalent of a stipulation.
- Mishnat Yehoshua p. 135 writes that authors don’t really intend to have a stipulation that if you violate the stipulation then the sale is invalid. No seller of books is interested in returning the money to the buyer and taking the book in return if the buyer violated the stipulation and copied it. See Shulchan Aruch CM 111:3.
- It is possible to sell something partially as we find in Shulchan Aruch CM 209:7 or 212:3. Mishnat Yehoshua p. 137 cites Rav Zalman Nechemya Goldberg, Rav Sheinberg, Rav Zafarani and others who hold that since the owner of a copyrighted material doesn't have intention to sell the book with respect to copying it the book is only partially sold with respect to reading it. Therefore, copying it would be stealing. Rav Nissn Karelitz (cited by Practical Laws of Money p. 118), Minchat Tzvi 1:146, and Piskei Din (Shurat Hadin v. 16 p. 290 n. 12) agree that this approach of selling the intellectual property with respect to reading it is effective.
- Mishnat Yehoshua p. 138-9 asks how a partial ownership of a book with respect to copying is a valid ownership if the right to copy something isn't tangible. Also, the right to copy it isn't a ownership it is merely stopping someone else from owning it. Lastly, since it is going to remain in the hands of the buyer permanently it is impossible to consider it as a partial ownership. Also, Mishnat Yehoshua p. 142 cites Rav Zalman Nechemya Goldberg that just writing all rights reserved isn't sufficient to create the partial ownership, it would have to be explicitly stated.