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. Now, this is part 12.
Downloading Music
Downloading music is also another very relevant instance of the problems raised by intellectual property law. This instance differs from anything we have seen since there is no tangible which is attached to the right we are protecting. There is no physical object which contains the representation of that protected right.
This makes a significant difference when looking at the problem from a property law perspective. In Talmudic law, property rights are traditionally attached to tangibles and therefore, if there is no tangible, there will not be a property right. Therefore, according to this approach, it would not be illegal, according to Talmudic law, to download music on the internet.
According to the approach based on the law of enjoyment, it would also seem to make a difference. Traditionally, the law of enjoyment applies to a situation in which one enjoys a benefit from someone’s property. Here, since there is no tangible property, this approach would not be relevant. However, as we have seen, Rabbi Zalman Nechemia Goldberg argues that this approach can be used even without a benefit from someone’s property. Rather, he argues the real deciding factor is whether the original owner spent money in the creation of the product. Since, in the case of musical productions, a lot of money is spent in creating the music, this approach, according to Rabbi Goldberg should apply.
According to the approach based on undue competition, the law could still apply and therefore this case would be similar to the other cases discussed before.
According to the approach based on Dinei Demalchuta Dina, the talmudic law would once again defer to the law of the land and depend on the law applicable in one’s jurisdiction.
The Custom of the Artists would not apply here since the person downloading music is an individual. Also, the Rabbinical Legislation would not apply (even if it existed) since this would be beyond the scope of its enactment which dealt with the copy of books.
This example goes to the core of the problem of intellectual property in Talmudic Law. Since it is not part of the original structure of Talmudic Law, the only real way to protect the right fully is by integrating it from another system of law. This poses some serious philosophical problems. It also poses practical problems since the law of Dinei Demalchuta Dina does not apply everywhere.
