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
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.
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.
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
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
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
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