5756/1996

            Parshat Mishpatim is the foundation of Jewish civil law ( ).  Hence, it is most appropriate to discuss an issue of major concern, the Halachic view of copyright laws.  This question has many applications such as copying compact discs, cassettes, and computer programs in violation of copyright laws.

            Halacha accepts the concept of copyright laws.  These laws are binding upon us both from the perspective of Halacha and civil law.  A decision of the Jerusalem Beit Din (printed in Techumin 6:169-184) regarding copyright, illustrates this point.  A member of that  , Rav Ezra Basri, explains the decision by stating that virtually all Halachic authorities accept the concept of copyright laws either because it has a basis in classical Jewish law, or because   - the Halacha obligates us to follow the law of the land (concerning monetary laws).  In fact, the   ruled that the defendant (who violated copyright law) could not claim   like the Halachic authorities who believe the Halacha does not recognize the concept of copyright (  refers to the right of a defendant in a monetary dispute to claim his right to follow a minority opinion).  The reason for this is because the overwhelming consensus of  is that Halacha recognizes the concept of intellectual property and copyright law. The Beit Din ruled that the opinion that halacha does not recognize copyright law is not a viable opinion.

            Although it is clear that Halacha recognizes copyright law, there are differing opinions as to why this is so.  We will outline five approaches from some of the greatest Halachic authorities of the past two hundred and fifty years and today.

Rav Yosef Shaul Nathanson - Equity

            Rav Yosef Shaul Nathanson ("   ::) explicitly asserts that Halacha recognizes the concept of intellectual property and copyright law.  He does not offer a Halachic source for this assertion.  Rather, he writes that  , that it would be counterintuitive to say that halacha would fail to recognize the internationally accepted rules of copyright.  It would appear that Rav Nathanson is arguing that we must accept these laws based on considerations of equity.  Indeed, the ", commenting on the Torah's exhortion ( :)     ', emphasizes that the Torah commands us to interpret what is proper and ethical behavior, even for an issue not legislated in the Torah.  Respecting copyright laws is a prime example of following this broad command of the Torah to do what is "straight and good in the eyes of Hashem." 

Rav Yitzchak Shmelkes - Dina D'Malchuta Dina

            Rav Shmelkes (  " '  ') writes        - "I am not aware of any Torah source that prohibits copying a Torah work without the authority and permission of the author."  However, he does write that one must abide by the government enacted rules and regulations concerning copyright law because of the famous Talmudic rule -   .

            This point is strengthened by what Rav Yosef Eliyahu Henkin ( "   '  "-") wrote concerning why halacha should recognize American rent control laws.  He states:  "Since we are residents of the United States, whose laws are enacted by elected officials chosen by citizens in a just and fair manner, and we Jews do not maintain organized communities with heads of the communities ( ) - the government laws are Halachically binding because of   ."

            Rav Henkin writes that even those (such as the ") who limit the applicability of    would agree that when Jews do not have a recognized communal base to enact rules and regulations, government laws must be followed.  This is especially true in the area of copyright law.  Virtually all countries in the world maintain these laws, because a modern economy cannot function without them (witness the political pressure the United States government is placing on China to enforce copyright laws).  Hence, it would seem reasonable to assert that all would agree that we must abide by the government's laws concerning copyright.  Chazal teach that when government discipline is lacking, pandemonium results.  Similarly, if copyright laws were not enacted, economic pandemonium would result.

Nodah BeYehudah - Unjust Enrichment;    

            Rav Zalman Nechemia Goldberg (a  and Rosh Kollel in Jerusalem, who is considered by many to be the premier contemporary halachic authority) applies a responsum of the Noda BeYehudah as a Torah source for recognition of intellectual property rights (Techumin 6:195-197).

            Rabbi Landau (    :) adjudicated a dispute where a   who wrote a commentary to both the  of   and   and paid a publisher to print both the  and his .  After the work was printed the publisher discarded the characters used in printing the  but kept the typeset characters of the text of the , for use in his printing of an edition of .  The   sued the publisher for compensation.  The publisher defended his actions by claiming that it is a situation of     , that although he benefited from the printing of the scholar, he did not cause the scholar any loss, and therefore is not required to compensate the scholar (see   .).  Rav Landau rejected this claim stating that the publisher indeed did cause monetary damage to the scholar because the publication of  caused a reduction in demand for the scholar's work.  Therefore, it is a situation of    , and the publisher must compensate the scholar for the use of the typeset characters that the scholar paid for.  The publisher must compensate the scholar because using the typeset characters constitutes unjust enrichment.

            Rav Zalman Nechemia Goldberg discusses the possibility of applying this ruling to the situation of copyright law.  If someone copies, for example, a computer program, the copier benefits from the program and causes a loss to the producer of the program because of the loss of the sale of the computer program.  It is therefore a case of    , and the copier should compensate the producer of the program.

Chatam Sofer Hasagat Gevul (Illegal Encroachment)

            Chatam Sofer ("      ,,) provides another source for the concept of ownership of intangible property.  In discussing why one may not republish the prayer books set that was edited and arranged by a particular publisher, Chatam Sofer cites a case that appears in   : (improper competition), as a source for the prohibition.  The Gemara records:         - "Fishing nets must be kept away from a fish [which has been targeted by another fisherman] the full length of the fish's swim."

            The targeted fish are , as they have not yet been caught.  Nevertheless, " required the other fisherman to distance themselves from the targeted fish.   ( . " ) cite       who explains this rule by saying that this Halacha applies where the fisherman baited the particular area with dead fish, which leads fish to gather in that area.  Therefore, competitors may not capitalize on the investment made by the fisherman.

            The Chatam Sofer formulates a general principle based on this Gemara.  He asserts that this Gemara teaches that one who expanded effort in his attainment of a certain state (even if it is intangible) has an exclusive right to the resulting profits of that state.  Hence, the creator of intellectual property such as music cassettes and computer programs, retain the exclusive rights to the profits resulting from their creation.  A violation of this right constitutes  .

Rav Zalman Nechemia Goldberg - 

            Rav Zalman Nechemia Goldberg argues (in the aforementioned essay published in sixth volume of  pp.185-207) suggests that the concept of , that one who sells an object can retain certain rights to the object sold, could be applicable.  For example, the  in   . speaks of one who sells his sheep but retains the right to the sheep's future production of wool and offspring.  This means that the owner retains the ownership of the sheep as far as its wool and offspring are concerned. 

            Rav Zalman Nechemia asserts that one could similarly argue that one who sells a copyrighted computer program or music cassette does not sell to the purchaser the right to copy the tape.  One cannot claim that he owns the program or cassette and can make a copy if he wishes, because he does not own the product regarding copying the product. Copying the tape in that case is considered to be a theft.

Conclusion

            We have seen that there are at least five reasons why we must abide by copyright laws.  Indeed, Rav Moshe Feinstein (    ::) rules that one must abide by copyright laws.  Therefore, before making copies of cassettes or programs, one must ascertain that it is permissible to do so. If one wishes to further explore this topic, he can see Rabbi Israel Schneider's essay "Jewish Law and Copyright," Journal of Halacha and Contemporary Society, Spring 1991, pp.84-96, Rabbi Aaron Levine "Economic Public Policy and Jewish Law" chapter 8, and the aforementioned essays of Rav Zalman Nechemia Goldberg and Rav Ezra Basri