CCAR RESPONSA
5761.1
Copyright and the Internet
She’elah
According to Jewish law, is it right to download files (music, games, etc.) from the Internet without the creator’s consent or monetary compensation? (Rabbi Eric Gurvis and the ninth grade religious school class, Temple Shalom, Newton, Massachusetts)
Teshuvah
The easiest way to answer this question is to refer it to the civil authorities. Jewish law contains the principle of dina demalkhuta dina,[1] which recognizes the validity of the law of the state or the general government. This law is valid and binding upon us because the citizens of the commonwealth have agreed in advance to abide by the laws that pertain to the government’s accepted legislative power.[2] Our question is one of property rights, specifically the issue of ownership of what we call “intellectual property,” and this clearly falls into the category of those matters that the state may properly regulate through its legal system. Jewish law would recognize as valid the decision reached on this question by the legal system under which we live, whatever that decision might be.
Yet this “easy”answer does not really address the question we have been asked. Our sho’el wants to know how Jewish law would resolve the issue, were it not a matter to be adjudicated by the civil courts. That is, according to the tradition of legal and religious thought known as the halakhah, what is our ethical duty with respect to materials we download from the Internet? Are we permitted to access these materials freely? Or do we violate the rights of their creators and owners if we download them without their permission or do not pay them compensation? If we were dealing with a question of tangible property (real estate or chattel), our response would be obvious. Taking or borrowing the property of another person without that person’s consent is tantamount to theft. But we are dealing instead with the ownership of intellectual property, a set of rights called “copyright.” Does Jewish law recognize copyright? And if so, does copyright protection extend to material available over the Internet?
“Copyright”[3] as a legal principle does not enter the halakhic literature, or the law in general, until the invention of printing. Prior to that time, there were no mechanical means to make multiple copies of written texts. The advent of the printing press led to the creation of a new industry in which many workers were employed and in which considerable money was spent in the production of books and other printed materials. Since it was now relatively easy to make copies of these texts and to distribute them on a mass scale, authors and publishers sought to protect their investments from encroachment by competitors.[4]
The first case we encounter in Jewish law concerns the printing of an edition of the Mishneh Torah, the law code of Maimonides, by R. Meir of Padua and a Gentile printer in Venice in 1550. A competitor thereupon published the same work, pricing it somewhat lower than the first edition. R. Moshe Isserles, one of the authors of the Shulchan Arukh, issued a ban against the competitor’s edition, on the grounds that its publication wrongfully injured the livelihood of R. Meir and the first printer.[5] This ruling was controversial, since the relevant Talmudic passage seems to allow free economic competition.[6] Isserles apparently reads the passage to say that, while competition is permitted, the competitor may not destroy the livelihood of the established business.[7] The printer has a copyright upon the book, therefore, because free competition in this case would drive him from the market and deprive him of any chance to recoup his investment. Some later authorities were reluctant to accept this view. The Torah, they argued, belongs to all of us, and the study of the Torah is a central religious duty. How can anyone claim property rights over sacred texts, literature produced in fulfillment of a mitzvah?[8] This objection, however, was countered by the very practical concern that, without some sort of protection allowing him to realize a profit, no printer would undertake the financial risks necessary to publish works of Torah learning. Our devotion to the mitzvah of Torah study therefore requires that we recognize the property rights of the publishers of sacred literature.[9] In addition, those who expressed doubts about copyright did so with respect to printers who published works written by others. These authorities were much more willing to recognize that the author of a work of Torah scholarship had a right to profit from his own book.[10]
Jewish law, in other words, accepts that the author of a text enjoys a copyright over his or her work, as a matter either of principle (the creator of a text is its rightful owner)[11] or of pragmatism (without copyright protection, few would venture to publish such works). If this is true of sacred literature, where one could object that there should be no such thing as a copyright over words of Torah, it is certainly true of other written works, where that objection does not apply. And if the authors of written texts deserve copyright protection, there is no reason why we should not extend that protection to other forms of intellectual property, which like written texts are created by authors who invest time and resources into their creation in the hope of earning a livelihood and of achieving a return on their investment. These works should not be copied or reproduced without the consent of their authors, the authors’ legal representatives, or of those to whom the authors have transferred legal title.[12]
Does the new technology change these conclusions in any substantial way? The development of the Internet and the World Wide Web has dramatically transformed the publishing marketplace during the past decade, making it possible to reproduce literary and artistic materials and to distribute them instantaneously to an audience that circles the globe. Some contend that this new technology has radically altered the notion of copyright as well. Since it is so easy to download files and to share texts, the argument runs, the authors of these materials cannot reasonably expect to control their sale and distribution. Some go further, claiming that in this new “information age,” where the rapid sharing of data has become the norm, it is wrong as well as impractical to try to impede the free distribution of knowledge and information.[13]
It seems to us, however, that while information technology has become more sophisticated, the ethical issues that led to the creation of copyright laws remain the same. If it is wrong to print a book or to copy a painting without obtaining the permission of its creator, it is just as wrong to download literary and artistic creations as files without the consent of those who authored them or who own the rights to them. It is true that the “Internet age” confronts us with fundamentally new realities. It may also be true that existing copyright laws are insufficient to respond to these new realities. But it is certainly true that we continue to shoulder a duty, under Jewish tradition as well as under the law of the state, to honor, protect and safeguard the rights of authors and publishers to the works they create.
It is therefore wrong, from the standpoint of Jewish law, to download files from the Internet unless one has obtained permission from the authors of those files to do so.
NOTES
- This principle, enunciated by the amora Shmuel, is found four times in the Babylonian Talmud (BT Nedarim 28a; Gitin 10b; Bava Kama 113a-b; Bava Batra 54b-55a). A similar concept is found as well in tanaitic literature, although it is given no explicit legal formulation there; see M. Gitin 1:5.
- The agreement is called a stipulation (tena’i), in effect a contract or compact into which the members of the community have entered. Note the language “accepted legislative power”: the principle of dina demalkhuta dina does not entail that all the acts of the general government are accepted by Jewish law as valid and binding. On the theory and the limits of dina demalkhuta dina, see our responsum no. 5757.1.
- We follow the definition of “copyright” as set forth in Corpus Juris Secundum (St. Paul: West Publishing Co., 1990) 18:2 (94): the right of literary property as recognized and sanctioned by positive law; the exclusive right of printing or otherwise multiplying copies of an intellectual production and of publishing and vending the same; and the right of preventing all others from doing so.
- For the historical background see J.A.L. Sterling, World Copyright Law (London: Sweet and Maxwell, 1998), 7 ff. The granting of publication monopolies was a well-established practice in the printing center of Venice for nearly one hundred years prior to the case involving the Mishneh Torah.
- Responsa Rema (R. Moshe Isserles)
, no. 10.
- See BT Bava Batra 21b: may a competitor from the immediate community or from outside the community open a similar business there, or can the existing artisan or merchant prevent him from doing so? Most early authorities rule that the competitor must be allowed to do business, inasmuch as a similar business already exists within the community (Yad, Shekhenim 6:8; Alfasi to Bava Batra 21b; Hilkhot Harosh, Bava Batra 2:12). On the other hand, R. Mordekhai b. Hillel (Sefer Hamordekhai, Bava Batra, ch. 516) writes that the competitor may be prevented from setting up his business in a spot where all the potential customers will pass by his establishment without seeing that of the existing merchant or artisan, thereby depriving the latter of business.
- Isserles uses the term bari hezeka (“the damage is clear and palpable”; see also his Darkhei Moshe to Tur, Choshen Mishpat 155, no. 4). R. Moshe Sofer (18th-19th cent. Hungary) explains Isserles’ point as follows: the existing business has no right to prevent the entry of a competitor when the competition will result in a lessening of the existing business’s income. But if the competition would destroy the existing business, the latter has the right to prevent the entry of the competitor (Resp. Chatam Sofer, Choshen Mishpat, no. 79).
- As one posek put it: if Moses himself taught Torah without receiving payment, how can we demand the right to profit from publishing sacred texts (see BT Nedarim 30a, on Deut. 4:5)? R. Yitzchak Schmelkes (19th-cent. Galicia), Resp. Beit Yitzchak, Yoreh De`ah 2:75.
- Resp. Chatam Sofer
, Choshen Mishpat, no. 57.
- Resp. Beit Yitzchak
(see note 6); Resp. Sho’el Umeshiv (R. Shaul Natanson, 19th-cent. Galicia), 1:44; and Resp. Meshiv Davar (R. Naftali Zvi Yehudah Berlin, 19th-cent. Lithuania), 1:24.
- This argument is put forth by R. Berlin in Resp. Meshiv Davar, loc. cit. See also R. Shimeon Shkop, Chidushey R. Shimeon Yehudah Hakohen, Bava Kama, no. 1: “it is an accepted principle in Torah law that one who creates a thing is the owner of all rights to and over it.”
- This statement is a simplification of a complex legal and ethical situation. The law of the state generally allows an individual to make limited “fair use” of copyrighted material for certain specific purposes. There is no requirement to obtain the author’s consent to use the materials for these purposes. The problem emerges when one reproduces literary and artistic materials for purposes other than “fair use.”
- For a look at some of these arguments, see Ron Coleman, “Copycats on the Superhighway,” American Bar Association Journal 81 (July, 1995), 68-70.
If needed, please consult Abbreviations used in CCAR Responsa.