The IP Factor

I was privileged to attend a seminar on practical and theoretical Jewish Law (Hallachah) regarding software and music / film downloads. The seminar was hosted by the Advanced Rabbinic Program at Psagot, which aims to train judges of Jewish Civil Law (Dayanim).

There were three presentations by leading Rabbinical scholars, and this article attempts to put across their positions for the layman. Of necessity, I am simplifying their positions. I also admit that I am out of practice in following presentations of this sort, and possibly, some of the subtleties went over my head.

I will attempt to obtain a Hebrew transcript for any interested parties.

All three authorities accepted that since Halacha considers Civil Law on monetary matters as binding anyway, Copyright and Contract Law were sufficient to obligate parties not to make illegal downloads or installations. The following discussion is, therefore, theoretical, in the sense that Talmudic or halakhic sources are not strictly speaking required. 

Rabbi Zalman Nechemia Goldberg spoke first. His biography may be found here:

http://en.wikipedia.org/wiki/Zalman_Nechemia_Goldberg

Rav Goldberg took it as assumed that a creative work was the property of the originator and argued that there was Talmudic precedence for a seller or donator to sell with restrictions, thereby finding a basis for licensing agreements. The basis brought was that Rabbi Meir claimed that one could give charity specifying that the money donated was for the purpose of buying shoes. Evidence that this was codified as Law came from the fact that the Medieval Authority Rav Alfazi accepted that when hiring out an animal to someone, it was legitimate to condition the transaction on preventing the  renter from lending or renting to a third-party. By analogy, software and copyright licenses were considered as upheld by Jewish Law.

Of interest, he pointed out that when the Vilna Talmud was printed in the 19th Century by the Widow Romm and Sons, it challenged an hegemony by the Slavuta press. Although there were Hassidic vs. Mitnagdic / Haskalic overtones, at least part of an attempt at creating a 20 year ban against the Vilna press producing copies of the Talmud, was the investment of the Slavuta press. I note that this is rather like the first Copyright Ordinance, the Statute of Anne, also intended to protect the publishers and not the authors.

Rav Goldberg went on the rule that all illegal copies and downloads were separate sins, and that it did not matter whether the copied material was copied from a Kosher version or from an illegal copy. He referred the audience to Tchumim Vol 6 where he had published extensively on copyright topics.

Rabbi Shlomo Dzialowski

Rav Dzialowski purposely kept his presentation superficial. He won over the audience by talking about his computer skills as compared to that of his grandchildren, and claimed to lack the computer skills to make illegal downloads from the Internet.

Rav Dzilowski quoted Rav Vozner (Emek Mishpat), that copyright infringement was ‘Gezel’ – best translated as robbery, particularly highway robbery, and thus equivalent to piracy.

Quoting the leading rabbinic authority of recent years, Rav Auerbach, Rav Dzialowski ruled that one had ownership of one’s creations.

Finally, he quoted Rav Shkop (1860 - 1939), that the reason why someone was liable for damage caused by an obstruction in a public thoroughfare of his creation was just as every inventor of something new was entitled to it, he . (Novela on Baba Kama, first section).

Rav Dzialowski went on to explain that in the same way that the eggs of one’s chicken, or the calf of one’s cow were one’s property despite no Biblical source to that effect, an invention or creation was similarly the property of the inventor or creator.

As to intangibles, to explain why, despite the lack of a tangible loss to the creator by copying software or music, he drew an analogy to Maimonides’ ruling that one had to pay a Doctor for his consultation; the payment covering skill, training, etc., regardless of the fact that the doctor was not poorer for providing his service.

In other words, Rav Dzialowski’s argued that despite the Torah discussing stealing of tangible objects such as cows and sheep, there is, nevertheless, a long tradition and understanding that intangibles have value. 

In summing up, Rav Dzialowski ruled that one can sell one’s knowledge, skills and creations and can create conditions for their resale, in other words, licensing.

Rav Yitzhak HaLevi Clab rejected the arguments of robbery. In his opinion, robbery required the victim to have a tangible loss, and arguing that a robbery construction would be problematic as a basis to prevent one from copying a copy. Rav Clab’s position was that under the general principle of Loving thy Nabour as One’s Self, that, according to Rabbi Akiva is the basic principle of Judaism,  whenever one benefitted from someone else’s creativity or toil, one had to pay the market price. Generally the creator can fix his own prices.

Based on this reasoning, it is immaterial where a software program is purchased or a song is obtained, the person downloaded is morally obliged to compensate the rights holder, usually the creator, for benefit from the creation.

The program was well constructed and informative. I congratulate the organizers.