Would a "Beit-Din" Close "Napster" Down?
Jewish Views on Intellectual Property

Rabbi Zev Reichman
Chaver • Kollel Elyon

The Shabbat Zemer called "Yom Shabbat Kodesh Hu," "The Day of Shabbat is Holy," sung by Jews around the world at the Shabbat table, written by Yehonatan Chazak, ends with this stanza,

"Let no one move my boundary,
For in the path of song my lot has fallen;
Be wary and do not abuse 
The crown of song
With which He favored me."

This is an early example of an attempt by the author of a poem, at building a copyright into the work itself.

The Orthodox Union and the Bella and Harry Wexner "Kollel Elyon" of Yeshiva University have combined to offer a monthly program of Torah Study Sessions, "Shiurim," for men and women. The shiurim are delivered by members of the Kollel. The most recent shiur was delivered on Thursday, June 7, by Rabbi Zev Reichman, one of the Chaverim of the Kollel, with the title "Would a Beit Din Close Down 'Napster'?" and the sub-title, "Jewish Views on Intellectual Property." 

I will attempt to capture the main ideas of the shiurim and present them on the OU Website, with preliminary review and approval by the "magidei shiur," the deliverers of the lectures. Any deviations from the originals, by omission or commission, are obviously the responsibility of this writer.

Where is G-d?

Rabbi Reichman began with an anecdote concerning two particularly rambunctious children who seemed always to be getting on the nerves of their teachers in their local Yeshiva, and especially, since he had been dealing with them for several years, on the nerves of their principal. 

One day, after an unusually outrageous bit of misbehavior, that had driven their rebbe to distraction, and their principal to his limit of toleration, the boys fled the principal's office. When they reached their usual hiding place in the sub-basement of the building, the instigator of the mischief said to the other, "Boy, are we in trouble now! They think we stole G-d! I heard the principal yelling, 'Where is G-d? Where is G-d?' "

Of course the idea of stealing G-d is absurd, as one might imagine would be equally, maybe not equally, but at least similarly, absurd regarding the theft of any intangible entity. Generally, Jewish Law views the act of theft as involving the acquisition by the thief of "kinyanim," property rights in the object of theft. Clearly it would seem impossible to acquire property rights in an intangible "object."

Property Rights, Copyrights and "Napster"

Lord Atkinson, early in the nineteenth century developed the theory that underlies copyrights and patents in secular law. But he said that these laws followed from the eighth of the Ten Commandments, "Thou Shalt Not Steal." Thus, if an individual had written a poem, or a book, or made an invention, and someone else would present the same material to the public under the guise that he had created it, that would be a form of stealing, although what was stolen, in this instance, would be "intellectual property."

With modern technology, copying of intellectual property has become quite easy. Entire books may be "scanned" into a computer, and that book, possibly the fruit of thousands of hours of labor by its author and its publisher, now becomes available, free, to the public. Similarly, in the area of music, a producer of a CD may pay a popular band or entertainer tens, maybe hundreds of thousands of dollars, arrange for ideal studio conditions, and produce a high-quality musical product. Another individual may buy the product, "register" it as being resident on his computer, and a modern piece of computer software, "Napster," in this instance, can incorporate it into its musical data base, thus making it available, for free, to anyone in the public who wishes to "download" it onto his or her computer.

In the past, in the days of simple copyright law, there was in play a "doctrine of fair use," that said that the purchaser of music had purchased a few basic rights over and above the right to listen to the music. They included the right to make a limited number of copies; say, one for the home and one for the car and the right to make "mixes," whereby the purchaser could mix elements of music from one source with elements from another source, copying the music, in order to obtain a selection more compatible with his or her taste. But, with "Napster," the genie is completely out of the bottle; there is simply no limit to how many copies of the music that can be generated from one purchased copy! 

What has happened here? Should "Napster's" incorporation of the music into its data base and making it available to the public, be looked upon as theft of "intellectual property?" Or is it involved in some new kind of sharing that meets all legal criteria, for the music is not being copied at all by the purchaser, but only registered with a third party; namely, "Napster" itself, and by the (black?) magic of computer software, becomes available to the public? That question is being debated in secular courts of law, and in batei midrash in this land and in others. 

What does Jewish Law, that encompasses all of life, and has what to say to every generation, have to say on this subject? 

Interestingly enough, transferring the focus of the discussion from the music world to the publishing world, the "Brisker Family" finds itself at the center of the controversy. Which is somewhat ironic, because that great Torah family always looked askance, to some extent, at the world of publication of Torah scholarship. Indeed, the family attitude might be summed up in the following series of pithy sentences, attributed to one of the founding family members:

"Not everything that you think, should you say;
And not everything that you say, should you write;
And not everything that you write, should you publish."

Due to this attitude, there is relatively little of the great Torah thoughts, or Machashavah; roughly speaking, philosophical ideas, of Rav Yoseph Dov Soloveitchik, ZT"L, in print. It was to fill this gap that many have rushed.

In one case, someone in Eretz Yisrael published the unedited notes of Rav Herschel Schachter, currently one of the leading Torah scholars, and in the past one of the talmidim closest to the Rav, on shiurim of Rav Soloveitchik, on the subject of STA"M (Sefer Torah, Tefilin and Mezuzah). In this case, depending on one's point of view on the possibility of "theft" of intellectual property, Rav Soloveitchik and Rav Schachter may have been victimized.

In another case, someone else attached his own ideas to Rav Schachter's notes, again unedited, and included as well citations from Rav Soloveitchik himself, but identifying him only as HaMasbir, the one who explains and clarifies. Again, these efforts were not totally appreciated by the Soloveitchik family nor by Rav Schachter.

What does Jewish Law say about these cases, where an individual bolsters the quality of his work by attaching it to Rav Schachter's notes, unedited and without permission, and onto the ideas, again without permission of the family of "the Rav," the way Rav Soloveitchik is referred to by much of the Torah world?

Naturally, in the relatively unexplored and complicated area of Halachah such as this, especially regarding its interface with modern technology, the world of Jewish Torah scholarship has put forth several approaches, which we will now touch upon. 

Rabbi J. D. Bleich is one noted expert on Halachah who has written on the subject. His point of view emphasizes the intangibility of intellectual property, that takes it, in his view, out of the realm of "objects" that can be stolen. 

He refers to the halachot of hekdesh, property belonging to the Temple. For example, if Person A designates a certain ox to be a sacrifice, that ox becomes hekdesh; it belongs to the Temple. When Person B then uses that ox for a private barbecue, we would say that Person B has committed meilah, theft from the property of the Temple. However, we also have the Halachah that "Ayn meilah ba-re'ach," there is no meilah, no theft has occurred, in the case of a person who smells the pleasing aroma of the ketoret, the incense used in the Temple, purely for his own enjoyment. 

What is the difference between the enjoyment of a steak and the enjoyment of an aroma? It must be, according to Rabbi Bleich, the very intangibility, the impossibility of putting one's hands on it and lifting it up, of the aroma, that takes it out of the category of things that can be stolen. And he compares intellectual property, music most readily; books - the written word - perhaps with a little more difficulty, to an aroma. Thus, according to Rabbi Bleich, there is no such thing as a "Jewish copyright;" that is, the right of an author or publisher not to have his work copied without permission, does not exist in Jewish Law.

He is opposed in this regard by the Shoel U'Mashiv, Rav Natanson, of the nineteenth century, Rabbi of Lemberg, who differentiates between the aroma of items owned by hekdesh and items such as books or music that are the fruits of labor of the human mind and soul. These creative abilities that HaShem has granted to the human being, confer upon the human "creator" rights of ownership "similar to" the ultimate right of ownership of all of Creation that belongs to HaShem, the koneh shamayim va-raetz, the Creator and therefore "Owner" of heaven and earth.

Rav Natanson makes reference to a certain individual who was a Torah scholar, but also a clever inventor of devices that had great practical benefit. Thus, he made his living entirely from royalties from the sale of his inventions. And this right was protected by the non-Jewish world, showing the respect that they had for "ideas." Rav Natanson argues that if even the non-Jewish world has progressed to the level that they have respect for ideas, certainly the Jewish People, the People who represent the power of the mind and the spirit, should regard a creation of the human intellect as no less real than a garment or some other physical object.

One method of enforcing the prohibition against publishing someone else's work without his permission was by using the haskamah, where a great scholar was asked to write an approval, or recommendation, of the work. For example, the SHELAH Ha-Kadosh wrote about the Tomer Devorah of Rav Moshe Cordovero, that it was such a great work that one who became well versed in its contents was assured of entry into the World-to-Come. Having praised it so highly, he feared that others would undertake to publish it as well, diminishing the profits of the original publisher. So he invoked a fourteen-year cherem, or ritually enforced prohibition whereby violators would be placed outside of the "camp of Israel," so to speak, by being denied the right to be "called up" to the Torah, or even that all other Jews were forbidden to speak to them. 

The Chatam Sofer emphasizes the elemental justice in maintaining that the publisher of a Sefer, who had invested so many hours in the production of the work, should not be left unprotected. If it were possible, once a given work were published, for someone else to come along and produce the work for a lower price, thus making his version of the work more attractive to buyers than the original, the original publisher would legitimately feel cheated, and be reluctant to remain in the field of publishing. Thus, if only l'takanat ha-madpisim, for the benefit of the publishers, copyright law must exist within Halachah, the code that defines the life of the "People of the Book." 

In this way, the copying of intellectual property is related to, and similar to, the general idea of hasagat gevul, literally, moving one's neighbor's boundary fence to one's advantage, but applied more generally to the prohibition of opening a pizza shop right next to another one, or any kind of business that would definitely be taking from the identical customer base as the previous business. The connection to our topic is that here as well we're talking about opening an identical business (publishing the very same book, or the very same song), which would take from the same reader or music-lover base. 

The Chatam Sofer mentions a historical example of the invocation of a Jewish "copyright." The MAHARAM Padua, Rabbi Meir Katzenelenbogen, famous in Jewish History for his great scholarship as well as for being the progenitor of a good deal of Ashkenazic Jewry, once went to the great expense of publishing the RAMBAM's Mishneh Torah. A non-Jewish publisher, then published the same work but was offering it to the public for one gold coin less, enough of a difference to cause massive defection from the first version. The MAHARAM Padua, facing bankruptcy, requested that the RAMA, the most authoritative Ashkenazic decisor, intervene. The RAMA responded with a teshuvah, a response that no one is allowed to buy the second set, even though it costs less.

The Beit Yitzchak, a contemporary of the Shoel U'Mashiv, felt that there is no such independent concept within Jewish Law as "intellectual property." The only connection to such a concept is via the route of "Dina D'Malchuta Dina;" namely, that the Jewish population in a given land is required by Jewish Law to observe the "law of the land." And if the "law of the land" contains such a concept as the right to protection of "intellectual property," then Jewish Law must embrace the concept as well, but if there is no such concept in the "Law of the Land," there is no basis for it in Halachah.

Rabbi Reichman pointed out, however, that the concept of "Dina D'Malchuta Dina" is not so pashut; that is, not so simple and automatic to say that if their law includes it, then our law should include it. Because there are various limitations of the concept. In Gittin, according to one opinion in the Gemara, non-Jewish courts cannot create shtarot, valid court documents. Also, according to a view in Tosafot, "Dina D'Malchuta Dina" only means that the government has the right to levy taxes, but no more. There is also an opinion that we do not apply "Dina D'Malchuta Dina" in Eretz Yisrael; that is, it is only used to define the relationship of the Jewish community to the governing authority if they are different, whereas in the Holy Land, they are, or should be, one and the same.

There are other limitations as well. We don't have to observe the "law of the land" in the privacy of our home. And we don't have to observe it if it is patently unfair, as is the law engineered by Sonny Bono, when he was a politician, for the exclusive protection of Walt Disney characters, who were about to lose their copyrights. Imagine Mickey Mouse, well over fifty now, facing some competition!

Non-Jewish Influences

In England, in 1709, Queen Anne became the first ruler to recognize the right of an author or publisher to copyright their work.

The French expressed their theory concerning the subject of intellectual property as follows: 

An author or publisher has the right to protection of his access to profits from the creation of the work, and also the moral right that nobody has the right to change the work, in such a manner that it would decrease the appeal of the original work to the public. The latter right is an eternal one; nobody has the right to distort the work of the original artist.

For example, one might argue that the publication of "The Wind Done Gone," a parody of "Gone with the Wind," mocks the original such that it takes away from the appeal of the original work.

"Mishpat Ivri," Hebrew Law

Suffice it to say that as "Mishpat Ivri," the legal system that is adopted in the Land of Israel, extracts itself more and more from the morass of legal codes now in use in the Holy Land, and comes more and more to resemble Torah Law, it will have to incorporate, of course, the pure wisdom of the Torah, plus some of the enlightened suggestions of the other nations of the world, as we find that Yitro's suggestions were accepted and to some extent incorporated into the Torah. 

What of "Napster?"

So let's review the Jewish Views on Intellectual Property by applying them to the original question; namely, would a Jewish Bet Din close "Napster" down?

Rabbi Bleich would presumably say that "Napster" is not stealing anything, because a song is not anything that can be said to belong to a person (and neither is a book, though that has nothing to do with "Napster"). It's just a mechanism for sharing songs, and therefore entirely legitimate. Certainly there is no question that one is permitted to make "mixes."

The "Shoel U'Mashiv" would say, almost for sure, that "Napster" is essentially involved in a vast network of stealing, and therefore would certainly be shut down by a Bet Din. You might or might not be allowed to make "mixes," from music that you originally bought for yourself.

The Chatam Sofer would probably agree that it should be shut down, because it is almost certainly involved in a vast network of "hasagat gevul" of the original artists. "Mixes" would probably be OK.

The "Beit Yitzchak" would say that it depends on what the "law of the land" is. If it views copying of intellectual property as "theft," then "Napster" would be shut down. If not, then "Napster" could continue to operate, although it would undoubtedly cause a major revolution in the music industry. Presumably "mixes" would be OK in any case, under the "Doctrine of Fairness."

Rabbi Willig, a Rosh Yeshiva at YU and the Rosh Kollel Elyon, a noted Halachic expert, and a Rav in Riverdale, N.Y., is of the opinion that "Napster" is involved in "hasagat gevul," and therefore probably would be shut down by a bet din. However, he would agree with Rabbi Bleich that "mixes" are permissible, using tapes or CD's that one bought for one's own use.

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