This is a long essay I wrote that might be of interest to you. It analyzes the place of Intellectual Property (and Copyright Law) in Halacha and ends with a discussion of relevant questions such as Downloading Music and Burning CDs. I will be posting it part by part. It's quite long but will be rewarding to those who follow it. This was Part 1 and Part 2 and Part 3, part 4, part 5. Now this is part 6.
Dinei DeMalchuta – The Law of the Land
All the previous approaches have tried to find concepts within Talmudic Law which can be used to protect the rights of intellectual property. While all these approaches have successfully protected part of those rights, they all had shortcomings. The following approaches differ from the previous ones. Unlike the previous ones, they will use Talmudic concepts which allow the integration of foreign concepts within Talmudic law. These approaches recognize that original Talmudic Law, substantively, does not protect the rights of intellectual property but still believe these rights are to be protected within Jewish Law through concepts which allow for the expansion of Talmudic Law.
The first of those approaches relies on the concept of Dinei Demalchuta Dina – The Law of the Kingdom is the Law. This principle was stated by Shmuel in many different places in the Talmud[1]. According to this principle, the laws enacted by governments are binding on the Jews living on their territory even when they differ from the laws of Torah. This law does not apply to all areas of law. If this was the case, there would be no more relevance to Jewish Law other than mere rituals[2]. For example, the Talmud states[3] that the law of the land does not apply in cases of Issur Veheter (that which is permitted and that which if forbidden- laws pertaining to daily living). Rather, it applies to monetary cases. Rabbi Baruch Ben Yitzchak[4] states in the name of the French Tosafists that this concept only applies to the right of a government to collect taxes. However, the Ramban[5] disagrees and explains that this principle can be applied to all fair legislation from the government. The Shach[6], a commentary on the Shulchan Aruch, rules according to the Ramban. In another place, he explained that the concept of Dinei Demalchuta Dina only applies in cases which are not already covered by Talmudic Law[7].
According to this conclusion, it seems the concept of Dinei Demalchuta Dina could be applied to questions of intellectual property. In fact, Rabbi Yitzchok Schmelkes[8] ruled explicitly that this concept can be applied in the case of intellectual property. Based on this principle, in the end of the 19th century, Rabbi Schmelkes prohibited the copying of original works. Rabbi Ezra Batzri[9] came to the same conclusion. According to this principle, the law of the land would also apply today and every Halachic question on intellectual property could be referred to the law of the land.
This reliance on the law of the land can be used to properly integrate the concept of intellectual property into Jewish Law. However, it is not satisfying to those who believe in the normative nature of Jewish Law and who see in intellectual property something which should be protected in traditional Jewish Law. The use of foreign concepts seems to indicate that incompleteness of Jewish Law[10]. Also, while this is not the subject of this paper, there are some unsolved problems with the use of Dine Demalchuta Dina. For example, it is unclear whether or not such a concept can apply in the State of Israel in which Jews now have sovereignty. While the scope of the protection for intellectual property rights is greater through this approach than any other approach previously seen, its use can be dissatisfying, and in some cases questionable.
[1] Babylonian Talmud, Baba Kama, 113a. and Baba Batra, 54b.and Nedarim, 28a. and Gittin, 20b.
[2] Hershel Shechter, “Dina De’Malchusa Dina” JHCS, Number 1.
[3] Babylonian Talmud, Gittin, 10b.
[4] Sefer HaTerumot. 46:8.
[5] Ibid.
[6] Yoreh Deah at Siman 165:8.
[7] Ibid at 73:39.
[8] Responsa, Yoreh Deah, Volume 2, no. 75.
[9] Supra at Note 22.
[10] Supra at Note 2.
