Back in 2001, when Napster was in the news, I attended a “lunch and learn” program at the OU office given by R’ Zev Reichman, then of REITS’ Kollel Elyon. I just learned of a beautiful insight on the topic by R’ Asher Weiss, that Rabbi Jonathan Ziring heard in 2013. So, here’s a survey of the topic…
Not #1- Theft:
R’ Bleich, when writing on the subject, quotes “ein berei’ach mishum me’ilah” (one cannot misuse sacred scents), and that there is no theft without a stolen object.
1- Dina deMalchusa issues:
According to Tosafos on Gittin, dina dimalchusah dinah is only on taxation.
The Beis Yitzchak does rule that DDD applies here. However, RZR opined that DDD still wouldn’t apply apply to Sony Bono’s law that was aimed specifically at Disney, allowing them to extend their copyright on some animated characters. It’s not an evenly applied rule.
2- Our Torah Must be Moral
The Sho’el uMeishiv (1:44) says that if secular society saw the moral obligation to protect an author’s creation and publisher’s investment, and this is in accord with our natural morality, it is impossible that the Torah would less moral. He therefore assigns ownership of ideas to their creator.
This goes beyond dina demalkhusa dina; it is not an obligation to obey secular law, but to obey the moral goals that drove its creation. Since, in halakhah, ownership is eternal (barring proactively making a qinyan), he pasqened that copyrights are lehalakhah also eternal.
I just want to note the SuM’s assumption, and the importance he assigns moral rights identified by the surrounding culture.
RZR wondered if the SuM would also recognize the French philosophy of copyright: that the artist could sell reproduction and profit rights, but eternally retains rights to controlling how the idea is changed. (So even if you sell a painting, the owner is allowed to copy it, but not modify it.) After all, this is also a secularly identified moral right. Would it be a halakhah only in France?
I personally have a more complicated problem… How do we know when our instinctive moral compass is verifying some need identified by civil legislators, and when it is being influenced by external culture and thus a consequence of that law. It could be that halakhah must accept a true moral value, but it could also be that halakhah must help us correct a moral error.
How do we know which is which?
3- Hasagas Gevul
There is an old cheirem, invoked in many if not most haskamos for a few centuries, against copying sefarim. (The SuM mentions it.) The cheirem is at least as old as the publication of Tomer Devora (about a century after it was written) — because it’s mentioned in the haskamos. That if one copies the seifer without permission, or buys such a copy he is subject to the cheirem and will lose all the berakhos showered on people who learn Tomer Devorah listed in the beginning of the haskamah.
The Chasam Sofer traces the cheirem back to the Maharam Padua’s edition of the Rambam. After he invested all the time and money preparing the plates, a non-Jewish publisher, Justinian, took those plates and printed his own copy of the Yad, charging one gold coin less than the original. The Rama said that anyone who bought a Justinian edition was under cheirem, as they prevented him from recouping his loss.
Given this language, the CS concludes that the problem is hasagas gevul (inappropriate competition). However, as RZR noted, hasagas gevul would only apply to business unfair competition, not to copies given away as a tzadaqah or a fundraiser.
This is also the conclusion of R’ Moshe. R’ Bleich, back when he was a talmid at Torah Vadaas found a rare publication of a notebook of R’ Chaim and had it published as a TvD fundraiser. The original publisher found out about it and cried “hasagas gevul“. They went to R’ Moshe who ruled in favor of R’ Bleich.
6- Chilul Hasheim
My 2¢: In a case like Napster, where the case will have a kol and a trial in the press, I would think that the risk of chillul hasheim, and therefore a possible capital offense, is enough to prohibit it — even in cases where the copying would be found to be technically legal.
I also wanted to argue hezeq, damages, but here is a far more elegant version.
R’ Asher Weiss mentioned some of the above opinions, and then offered this. Quoting R Jonathan Ziring’s blog post on Shaashuim:
Chazal explain that the sin of the dor hamabul [generation of Noah’s flood] was that they would each steal less than a shaveh perutah [the value of the smallest coin]. Thus, in the aggregate they would destroy people’s livelihood, but none of them could be prosecuted in court. From here he argued that there is an issur [prohibition] to do something, which while not formally theft, lends to a society that destroys other people’s financial well being. If no one respects intellectual property, then inventors, writers, and the like will have no way of supporting himself. Thus, even if no one can properly be called a gazlan, they have all participated in chamas.