Copyright in Halacha - Rabbi Yakir Peled shlita

00:02 Speaker 1 You’re listening to “Lemaan Yishme’u,” a podcast from Machon Halacha Chabad.

00:09 Speaker 2 Today we’re going to talk about copyright in halacha. That means the whole area of copying digital content, burning discs, music—anything to do with ownership of what the law calls intellectual property, something with no physical form. We’ll see how halacha treats it. I want to stress that we’re not discussing the legal perspective here. Nothing we say is a legal recommendation, and certainly not a recommendation to break the law, G-d forbid. We’re going to examine the halacha, discuss the law, and look at the law from a halachic perspective. There is no recommendation here to break the law. First of all, copyright is an issue that was less common in the past. It mainly arose with copying and reproducing books. Today, with advances in technology, copyright comes up very, very often, especially with software and music. Technology has brought many questions in this area, and sometimes, with the click of a button, a person could, G-d forbid, violate prohibitions, as we’ll discuss at length in this class, with Hashem’s help. First, we need to know that, from a halachic standpoint, one cannot acquire ownership of something virtual. Under halacha, one can acquire ownership of something physical. Something intangible, virtual, with no physical substance, cannot be owned and, consequently, cannot be sold. Let’s read the Rambam’s wording. The Rambam writes in Hilchos Mechirah, chapter 22: “A person cannot transfer ownership of the scent of this apple, or the taste of this honey, or the appearance of this crystal, and likewise anything similar. Therefore, one who transfers to another the right to eat the fruit of this palm tree or to live in this house has not effected an acquisition until he transfers to him

02:41 Speaker 2 the house itself, to live in it, or the tree itself, to eat its fruit.” In other words, a person cannot transfer or sell a taste or a smell to someone. That’s what the Rambam says. A person cannot transfer ownership of the airspace of a house. That has no halachic effect. If he wants to transfer the airspace of the house, it has to come together with the house. So, seemingly, just as one cannot transfer ownership of a taste or a smell, or of the airspace of a house, one also cannot sell, buy, or effect an acquisition of virtual content such as music, software, films, and so on. That’s the starting point. Now we’re going to examine the grounds for being stringent and the grounds for being lenient. There are many details and possibilities, but I think we can divide the main points into four grounds for stringency and three grounds for leniency. To lay out a general framework, the four grounds for stringency are: one, the law of retaining a right. We’ll discuss it in detail shortly; for now, I’m just giving the headings. One, retaining a right. Two, dina demalchusa—the law of the land—and local custom. Three, encroaching on another person’s livelihood. And four, where one person benefits and the other suffers a loss. Those are the grounds for stringency that we’ll look at shortly. Each has its limitations, which affect the conclusion about what may and may not be done. As for the grounds for leniency, again, there are many details, but the basic grounds are: one, something lost at sea. Two, a lost object in a public place where most people are non-Jews, as we’ll see. Three, knowingly abandoning one’s property. So those, broadly speaking, are the grounds on each side. Now let’s get into the details and look at each one, its source, and what follows from it. First, retaining a right. The first reason to be stringent—not to recognize ownership of virtual property, but to prohibit copying or reproducing it—comes from a law called retaining a right.

05:31 Speaker 2 There is a ruling in Choshen Mishpat, siman 212. To continue what we said earlier, we read in the Rambam that a person cannot sell the airspace of his house; he has to sell the house itself. But the law of retaining a right works like this: I cannot sell the airspace of a house; I have to sell the physical house itself. If, however, I own a physical house and sell it to someone else, I can retain the right to its airspace. That is, I cannot sell the airspace on its own, because it is intangible, but I can sell the physical house and retain for myself the right to live in it, the use of its airspace. I can retain that. Why? The reasoning is that when I own a physical house and sell it, if I retain the right to its airspace, I also retain some physical stake in the house itself. It is as though I retain some small physical part of the house, and along with that I can retain the right to its airspace. It follows that one cannot sell, say, a song or a piece of software, which are virtual, just as one cannot sell the airspace of a house. But if a person sells a physical object, such as an actual disc, he can retain for himself the right to copy the disc. In other words, someone might sell a disc of songs and tell the buyer—as a condition, or as is commonly written on the disc—“Listen, you can use the disc,

07:35 Speaker 2 you can listen to the songs and do anything you like with the disc, except for one thing: I’m not selling you the right to copy it. I’m keeping that right.” It’s like a person selling a house—all of the house except its airspace, which he retains. He can do that, as we said, because we consider him to have retained a physical part as well. So when a person sells a disc, we can likewise say that he retains some physical part of the disc, and can thereby retain the right to copy it. Therefore, under the law of retaining a right, there are grounds to say that someone who buys a disc may not duplicate it, because the seller retained the right to copy the disc. The same applies to printed books. If a person sells a book and writes that photocopying from it is forbidden, he is, so to speak, selling the whole book but retaining the right to copy it. He did not sell that right, and since he is selling a physical object, he can do so. This is the first basis for copyright—for prohibiting copying and reproduction. But there is a very significant limitation here: copying would be prohibited only for someone who buys a physical object, such as a disc or a book. Someone who downloads it from the internet or copies it from a disc without acquiring the physical object is not subject to the law of retaining a right. On this basis, there is seemingly no prohibition against copying. That’s the first basis. The second—we said there are four grounds for stringency—is dina demalchusa and custom. Now, with regard to dina demalchusa, it’s well known that there are many disagreements. First, does dina demalchusa apply in Eretz Yisroel?

09:29 Speaker 2 The Chazon Ish and others were stringent about this. The Tzitz Eliezer was lenient, Rabbi Ovadia was lenient, and many others were lenient. I said it backward: the Chazon Ish says that dina d’malchusa does not apply in Eretz Yisroel, while many others say it does. There is also a dispute about whether dina d’malchusa applies in matters between one person and another. We won’t get too far into that discussion right now, but it is a disputed issue. And because it is disputed, it is hard to tell someone that copying or duplicating is forbidden solely on the basis of dina d’malchusa. But there is an interesting ruling by the Chasam Sofer, and several other later authorities, who want to say that copyright is not merely a law of the government. There is a law, a copyright law, a law protecting creators. It is not just a law; it is an enactment made for the benefit of the public, an enactment intended to protect creators and publishers, to protect their livelihood. It is a positive enactment that also has force by virtue of accepted practice in the country. So even according to those who say that dina d’malchusa does not apply in Eretz Yisroel, these later authorities we cited want to argue that copyright should still be treated stringently because of accepted practice. For example, we saw similar sources. There is a responsum concerning a city where, at the time, the government had set a limit on the number of Jews who could live there, a certain quota of Jews. When someone wanted to leave the city and someone else wanted to move in, a person living there would sell him the right to live in the city. In effect, he would trade places with him in exchange for payment. And he writes—I think it was Rabbi Mendel—that even though, seemingly, this sale has no tangible substance, it is a virtual sale. He is not selling an object, only the right to live in the city. In any

11:40 Speaker 2 case, it is valid by virtue of accepted practice. Another case he cites concerns a place where it was customary for the governor to sell a particular person in the city the right to slaughter animals there. Any shochet who wanted to do so had to pay a certain amount to that person appointed by the governor, and only then was he permitted to slaughter. So, in effect, he was buying the right to slaughter from that appointee. And seemingly, what was he buying? Something intangible, right? There was no physical object being purchased. Nevertheless—I think this was the Noda BiYehuda—he ruled that it had force by virtue of accepted practice. So here too, seemingly, the buying and selling of virtual material can have force. It can be given force on the basis of accepted practice. However, some argue that we sometimes see the opposite practice. In some places people do copy things; there are situations where people commonly copy them, and the practice is very widespread. Perhaps that could even be used to support those who do copy content and materials. On the other hand, that is a bad practice. It harms the livelihood of the publishers. In any case, what seems to emerge from this issue of dina d’malchusa and accepted practice is that there is room to be stringent on that basis only where there really is a clear practice not to copy. That breaks down into several points, which we will also see later. That is the second basis for being stringent. We said: one, retention of ownership; two, dina d’malchusa. Three—the third basis for being stringent is the law against encroaching on another person’s livelihood. There is a law, an enactment of the Sages. The Ramban writes

13:49 Speaker 2 about the verse, “There He gave him a statute and an ordinance,” that the Sages have the power to institute enactments for the proper functioning of society. And the Sages enacted that a person may not harm another Jew’s livelihood. For example, in the case of a poor person pursuing a loaf of bread, someone who comes and takes it is called wicked. So the Sages instituted an enactment against harming another Jew’s livelihood. For example, we see that the Rema—it is related that, on this basis, under the law against encroaching on another person’s livelihood—protected the rights of the Maharam of Padua, who took part in printing the Rambam’s Mishneh Torah. In other words, we see that the law against encroaching on another person’s livelihood seemingly gives us grounds to say that copying digital content is forbidden. When someone copies songs, software, or films, he is harming the publisher’s livelihood. But there is a certain limitation here too. If we prohibit it under the law against encroaching on another person’s livelihood, that applies only when the copying is done for commercial purposes. When someone copies something for commercial purposes, distributes it, makes a living from it, and effectively deprives the publisher of revenue, he harms the publisher’s livelihood. But if someone simply copies it for himself, especially if he would not have bought it had he not copied it, then in such cases there is no prohibition on the basis of encroaching on another person’s livelihood. That is the limitation. We said that each of these grounds has its limitations. The limitation here is that it is prohibited only when done for commercial purposes, or at least if he would have bought it had he not copied it. The fourth basis for being stringent is the law of “one person benefits and the other suffers a loss.” There is a halachah in section 363. The Shulchan

16:00 Speaker 2 Aruch writes that if someone lives in another person’s courtyard without permission—that is, enters his property and lives there without asking—it depends on whether the courtyard is available for rent. If it is available for rent, he must pay the owner, under the law of “one person benefits and the other suffers a loss.” He benefited from the courtyard, while the owner was unable to rent it out during that time and suffered a loss. So he has to pay. On the other hand, if the courtyard is not available for rent, he is exempt from paying, because one person benefits and the other does not suffer a loss. Since it was not available for rent, he does not have to pay. Some wanted to say that the same applies when someone copies or downloads digital content. For example, if he downloaded a song from the internet, he got the song without buying it from the publisher. So he benefited, and the publisher suffered a loss. That too gives us grounds to be stringent. But again, there is a limitation: if we base this on “one person benefits and the other suffers a loss,” it applies only in cases where the other person suffers a loss. In other words, only where he would have bought it had he not copied or downloaded it. But if he would not have bought it anyway—if he tells himself, “I don’t want to spend money on this. If it’s free, I’ll take it”—then seemingly one person benefits and the other does not suffer a loss, because he would not have paid for it anyway. And indeed, there are halachic rulings citing the Noda BiYehuda, who was stringent in a case there: he required a printer to pay because he used another person’s printing plates without permission, plates belonging to someone who had printed with him. He required him to pay

17:59 Speaker 2 under this law of “one person benefits and the other suffers a loss.” But again, there is a limitation here: it applies only if I would have bought that material had I not downloaded it. So those are the four sources we mentioned for being stringent. Let’s briefly review them. We spoke about retention of ownership, which is limited to cases involving physical material, such as a disc. We spoke about dina d’malchusa and accepted practice, but that is disputed, and there has to be a clear practice. We spoke about the law against encroaching on another person’s livelihood. Here too, we said it applies only if he is doing it to make a living, for commercial purposes—if he is selling it and so on—because then he really is harming the publisher’s livelihood. And the last is the law of “one person benefits and the other suffers a loss,” which likewise applies only if he would have paid for the material had he not downloaded it. Those are the reasons to be stringent. Now there are also grounds for being lenient. We will go through them now, each with its limitation. The first and most basic one—they are all based on roughly the same principle—is called zuto shel yam, something swept away by the sea. There is a law; let’s read it in the Rambam. The Rambam writes in Hilchos Gezeilah Va’aveidah, chapter 11, halachah 10: “One who finds a lost object in the surge of the sea or in the floodwaters of a river that never cease—even if it has an identifying mark, it belongs to the finder. As it says, ‘which is lost from him and you find it’: this refers to something lost to him but accessible to anyone else. This excludes something lost to him and to everyone else, for he has certainly despaired of recovering it.” In other words, there is a law that if someone finds a lost object among things washed up by the sea or a river,

20:02 Speaker 2 Then he does not have to return it. Why? Because a person gives up hope. When something falls into the sea, its owner gives up hope of getting it back. So the law is that even if it has an identifying mark, it does not have to be returned. Some have wanted to argue that all the digital material available online today—or, more generally, material that has seemingly left its owner’s control—is like something swept away by the sea. The owner gives up hope; he no longer has control over it. So, under the law of giving up hope, it would be permissible to copy everything. Many have wanted to use this argument to be lenient, but it is not so simple. First, if we look at the wording, the Rambam and the Shulchan Aruch say: “That which is lost to him but can be found by anyone” must be returned; this excludes something “lost to him and to everyone else.” In other words, something swept away by the sea is, it would seem, an object that neither its owner nor anyone else can find. It is lost at sea. Here, for example, Rabbi Zalman Nechemia Goldberg writes that digital content is not considered lost to everyone. On the contrary, it is available to everyone. Some have put the distinction more clearly: unlike an object swept away by the sea, digital content can be compared to a different situation. Imagine someone who has lost many, many objects in various places. Some of those places have honest people, and some do not. He gives up hope of recovering the objects that are among dishonest people, but he does not give up hope of recovering those found by honest people, who will return them. In other words, it is not as though something has now fallen into the sea. A person releases a song or—

22:11 Speaker 2 or a piece of software, and he says to himself: True, there will be dishonest people who copy it without paying. I have given up on them, but I have not given up on the honest people who will pay for the content. So it is not really comparable to something swept away by the sea. We can also look closely at this law and at the Alter Rebbe’s wording, quoting the Rema: the permission applies only if the person who lost the object cannot recover it even with great effort. That is, if someone loses something and cannot get it back no matter how hard he tries, only then does this permission apply. So one could say that even for those who want to permit copying digital content on these grounds, it would apply only when the content is so widely accessible without restriction that its owner cannot recover control of it, however hard he tries. In other words, he cannot enforce his rights and has already given up hope. But when someone has simply released something and recovering control of it would take effort, that does not mean he cannot recover it even with great effort. It has to be completely unrestricted. That is the issue of something swept away by the sea. There is another basis for permitting it, also resting on the same principle of giving up hope. Incidentally, the law of something swept away by the sea is not necessarily based on giving up hope. That is the Rambam’s approach; I see there is another approach, but this is the accepted one. So the second point concerns a lost object in a public place where most people are non-Jews. There is a law that if someone loses an object in a place where most people are non-Jews, he gives up hope of getting it back. He no longer expects to recover

24:13 Speaker 2 the lost object, and therefore whoever finds it does not have to return it. But there is a certain limitation to applying this permission here. First of all, what is the comparison to our case? Some want to say that when something is released onto the open internet today, most people in the world are non-Jews. It is therefore like an object lost in a public place, whose owner gives up hope of recovering it, and it would be permissible to download and copy anything on the open internet. But this argument would apply only to content released to the wider world, not specifically to a Jewish audience. And here, as an aside, I should say that everything we are discussing concerns subjects not necessarily connected to Torah and mitzvos, because those raise other issues that we are not dealing with today. But regarding the law we are discussing now, of a lost object in a public place, some have wanted to be lenient. Again, though, because this rests on the question of giving up hope, some argue—just as we said about something swept away by the sea—that the cases are not comparable. With an object lost in a public place, a person gives up hope. Our case, by contrast, is like someone who has lost many objects, as we explained: he gives up hope only of recovering them from dishonest people, not from people who will pay him for the material he published. So again, this argument is not straightforward. The third basis for permitting it is called aveidah midaas—deliberately putting one’s property at risk of loss. There is a law that if someone intentionally leaves his property unguarded, through negligence, he is putting it at risk of loss. For example, someone leaves his animal in an open place and does not lock the

26:12 Speaker 2 gate. That is, in a sense, a kind of abandonment: he does not care about his property. There is a dispute about the law in such a case, between the Rambam and the Rosh. According to the Rambam, as the Mechaber also rules, following Sephardic practice, one does not have to return the object. An aveidah midaas need not be returned, but it is forbidden to take it. According to the Rosh, however, as the Rema rules, following Ashkenazic practice, it is also permissible to take the lost object. So under Ashkenazic practice in particular, there may be more room for leniency in our case. Some have argued that digital content made freely accessible online is like an aveidah midaas. When someone releases the song he composed or the software he wrote onto the internet, he is effectively putting his property at risk of loss. Under Ashkenazic practice, at least, this law would permit copying it. But here, too, we need a qualification, because the whole concept of deliberately putting one’s property at risk of loss applies only when a person has been negligent, not when he has made a mistake. Some argue that the cases are not comparable: with an aveidah midaas, someone simply leaves his cow somewhere without locking the gate. He was negligent in guarding it; he effectively abandoned it. Here it is the opposite. The publisher does want to earn money. His aim is to be paid for his song, so he is not being negligent; this is how he makes a living. Therefore the cases are not comparable. But someone who is lenient on these grounds would apply that leniency to something that really does have a seemingly negligent character: content that is freely accessible without restriction and that the owner no longer cares about—a kind of abandonment. In that case, there is room to permit it under the law of deliberately putting one’s property at risk of loss,

28:05 Speaker 2 but this basis for permission is mainly relevant to Ashkenazic practice. So those are the bases for permitting it. We mentioned something swept away by the sea, which applies only if the content is completely unrestricted—and even then, it is not so straightforward. That was the first. The second was an object lost in a public place where most people are non-Jews. We noted the limitation there too: it rests on the same idea of giving up hope. The third basis was deliberately putting one’s property at risk of loss, which likewise applies only if there was negligence. That is the overview we have presented today. We brought four bases for ruling stringently: a reservation of rights, dina demalchusa, the prevailing practice of the country, encroaching on another person’s livelihood, and the principle of “one benefits while the other loses.” Those are the reasons we gave for being stringent. On the other hand, we also brought reasons for being lenient, as we discussed earlier. So there are arguments on both sides, and each has its limitations. What does this mean in practice? I do not want to make a categorical ruling here, because this is a sensitive subject with further details that we have not all covered. But what is the general picture? In conclusion, if there is a physical item, such as a disc or a USB drive, then one certainly needs to be stringent because of the reservation of rights. It is harder to be lenient there. If the case involves copying digital content without a physical item, it depends: if someone is doing it commercially, to make money from it, then there is also the problem of encroaching on another person’s livelihood and of “one benefits while the other loses,” as we said. Here too, one needs to be stringent. If it is content without a physical item and he is not doing it commercially, and even more so

30:15 Speaker 2 Even if he would not have bought it had he not downloaded it, so that there is no issue of one person benefiting while another suffers a loss, there is more room for leniency. An interesting point concerns content that belongs to non-Jews. Everything we said about the enactments of the Sages concerning encroaching on another person’s trade, one person benefiting while another suffers a loss, and so on—these enactments, particularly the one concerning encroaching on another’s trade, were instituted for Jews, not non-Jews. So if someone wants software or something else produced elsewhere in the world, not by Jews, he needs to be careful, because sometimes Jews are partners in the company or own shares in it. But let’s say he knows the material does not belong to Jews. If it is physical content, like a disc, then even with a non-Jew one should be stringent, because this rests on the law of retained ownership and is essentially connected to theft, and stealing from a non-Jew is forbidden. So even if someone takes a software disc belonging to a non-Jewish company, there is reason to be stringent because of retained ownership, which applies to a non-Jew as well. By contrast, if he downloads the content—again, I’m speaking not legally but halachically—or copies it from a disc that someone else copied, and so on, then if it does not belong to Jews, there is room for leniency, even if it was made for commercial purposes, because the issue of encroaching on another’s trade does not apply here. Of course, one also has to take into account how widespread the copying is. The more widespread it is, the more room there is to permit it under the law of something lost at sea, as we mentioned earlier.