Ask the Rabbi: May one share music or videos on the Internet?

Jewish values demand that one cites the source of an idea; Jewish mores encourage spreading wisdom widely.

By SHLOMO BRODY
Using Facebook on the Internet 370 (R) (photo credit: reuters)
Using Facebook on the Internet 370 (R)
(photo credit: reuters)
The problem of uploading and downloading music, movies and software on the Internet has received prominent public attention with the closing of sites like Napster, Grokster and other peer-to-peer file sharing networks. These cases raise legal questions regarding intellectual property rights and the more abstract question of how one can steal something that is not physically tangible.
Jewish values demand that one cites the source of an idea. The sages declare, “Whoever repeats an idea in the name of the one who said it brings redemption to the world.” Once credit has been given, however, many sources stress the importance of sharing wisdom, especially Torah knowledge. Some scholars even claim that one can disseminate a halachic novella against the will of its originator. While others demur, arguing that one may reserve the withheld publication in case they want to sharpen their ideas or correct errors, it remains clear that Jewish mores encourage spreading wisdom widely.
Yet the spreading of wisdom is an economic expenditure requiring time and resources. If someone reproduces this knowledge, they will cause economic damage to the original producer even as they have not technically caused any direct damage or stolen anything physical, since “intellectual property” is an abstract entity. Besides individual losses, such activity can threaten the entire industry and thereby ruin the possibility of disseminating knowledge.
Recognizing these facts, Rabbi Joseph Shaul Nathanson declared that it is readily obvious that Jewish law affords copyright protection. While the vast majority of scholars concur, they struggle to categorize these intellectual assets within Jewish law.
Many of the earliest responsa written on this topic addressed book publications. When Rabbi Meir Katzenellenbogen (Maharam) of Padua republished Maimonides’s Mishne Torah in 1550, Rabbi Moshe Isserles forbade people to purchase a vengeful competing publisher’s edition. He argued that the latter was purposely undercutting the first publisher’s business in violation of the rabbinic prohibition of hasagat gvul, unfair competitive infringements.
While scholars like Rabbi Moshe Sofer supported this claim, Rabbi Mordechai Benet and others demurred, arguing that the hasagat gvul restrictions may not apply to books of Jewish wisdom and are generally limited to distinct geographical areas and persons. Moreover, as Rabbi Ezra Basri has noted, the concept of illegitimate encroachment does not really create a broad category of intellectual property.
Some scholars assert that intellectual property infringements violate the talmudic principle “If one benefits from another while causing a loss, he must pay,” since the producer loses out on potential sales. Yet a few dispute whether this rule applies in cases when the original product is not physically damaged or is a mere idea. Moreover, this halachic principle might permit a person to copy or download an item if they would have otherwise not purchased the item, something which copyright laws certainly do not allow.
As Prof. Nahum Rakover has documented, many books published since 1518 included approbations that incorporated written bans against reproductions without permission.
Some disputed the legal weight of those declarations or their long-term impact. Yet Rabbi Zalman Goldberg has contended that contemporary copyright declarations operate under the halachic principle of shiyur, in which a merchant sells a product but retains certain rights. In this case, the seller is granting the buyer personal benefit from the software or music, but prohibits the unauthorized transmission of their product.
Indeed, Rabbi Moshe Feinstein asserted that the unauthorized copying of a commercial tape recording (even of a Torah lecture) is outright thievery. Others have suggested that copyright declarations might work as a legitimate condition placed on transactions, especially since Halacha generally recognizes widely accepted commercial standards (minhag sochrim). This would allow, however, so-called “fair use” exceptions that permit, for example, distribution of small selections for educational purposes.
A couple of scholars have argued that while these categories might prohibit one from initially uploading or reproducing intellectual property, they would no longer apply once others, by whatever means, have made a product widely available, say, on the Internet. Yet most scholars have rejected this argument, since irrespective of the standing of intellectual property within Halacha, Jewish law respects copyright laws as part of its broader acknowledgment of civil financial law (dina demalchuta dina).
A significant majority of countries around the world have banned unauthorized uploading and downloading. Copyright owners and governments have shown intent to uphold these laws through lawsuits against sharing networks, Internet providers and individual violators. Moreover, when Israelis or other groups of identifiable Jews violate these laws en masse – as was alleged by Microsoft several years ago – it creates a hillul Hashem, a desecration of God’s name.
It behooves us to resist the temptation of illegal downloads and strengthen our respect for other people’s property – physical or intellectual. The writer teaches at Yeshivat Hakotel and directs the Tikvah Israel Seminars. Facebook.com/ RabbiShlomoBrody