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, part 6, part 7, part 8. Now, this is part 9.
Nafka Mina – Practical Difference
In classical Talmudic study, after exposing the different approaches to a question, one of the most relevant questions asked is whether there is a Nafka Mina between the different approaches. The words Nafka Mina are literally translated from Aramaic to mean “coming out of”. The more common translation for these words is “practical difference”. After analyzing difference conceptual approaches, one must try to detect whether any practical differences come out of these approaches. In the rest of this paper, we will be analyzing different relevant Nafka Minas which arise from our analysis of the different approaches taken to integrate intellectual property into Talmudic Law and analyze how each practical case relates to the different approaches suggested.
Photocopies for a class
The first Nafka Mina we will analyze has already been dealt with by Rabbi Shmuel Wozner and Rabbi Yaakov Blau. The question at hand is to determine whether it is permissible, according to Jewish Law, to photocopy handouts from a book use in a class.
Rabbi Wozner[1] rules that this is permitted. On the other hand, Rabbi Yaakov Blau[2] argues that such an action would be forbidden under Jewish Law. Rabbi Israel Shneider[3] argues that their difference of opinion comes from their adherence to a different approach in integrating the concept of intellectual property into Halacha. Rabbi Wozner, he argues, relies on the principle of Dinei De’Malchuta Dina which implies the application of the current Civil Law. Since in the United States, the copyright act codified the doctrine of “fair use”, photocopying pages for a class would be allowed. However, if we were to take another approach, we might get to the same conclusion as Rabbi Blau.
According to the approaches based on the law of undue competition and the laws of enjoyment, such an action would be permissible since one could easily argue that the person receiving the photocopied handouts would not have bought the book anyways. Therefore, there has been no competition caused by the alleged infringement of intellectual property law and there has been no loss of enjoyment.
According to the approach based on property law, both Rabbi Goldberg’s and Rabbi Bar Ilan’s opinions would be difficult to apply in this general case since both of them seem to require a clear note forbidding photocopying the book. According to Rabbi Goldberg, such a note would ensure the retention of the right to photocopy during the sale. According to Rabbi Bar Ilan, such a note would ensure the sale was recognized as conditional to the agreement that no photocopies would be made from the book. In both cases, while a book without a note would not be protected, many books today are printed with notes warning against the copying of books for both Civil Law and Talmudic Law reasons. Such a note should be enough to make illegal the photocopying of books even for classroom purposes since the clause does not distinguish between different cases. The right of property of the owner of the book either does not include, or is conditional, to the fact he does not photocopy the book and therefore he has no right to make photocopies whatever the reason is.
According to the Custom of the Artists, the custom would not apply in this case since it deals with actions of an individual. Therefore, photocopying pages would be allowed.
According to Rabbinical Legislation, if Rabbi Moshe Sofer[4]’s opinion stands, there is a Takana prohibiting the copying of the books. The question, in this specific case, would be whether the scope of the Takana included photocopying for educational use. It is unlikely that such is the case.
Therefore, most of the approaches seem to suggest that the photocopying of a book for classroom purposes should be allowed. However, according to the approaches based on property law, if there is a note in the book indicating photocopying is not allowed, then it would not be allowed in any case. This is therefore one of the Nafka Minot between the different approaches we have seen.
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[1] Responsa Shevet Halevi, Volume 4, no. 202.
[2] Pitchei Choshen, "Laws of Theft and Fraud," p. 287, note 27.
[3] Supra at Note 4.
[4] Supra note 45.
