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. Now, this is part 5.
Property Law
While all the other approaches deal with the rights of intellectual property through other areas of law, Rabbi Zalman Nechemia Goldberg[1] advanced a theory of intellectual property from within the law of property. Through an analysis of the nature of property law in the eyes of Talmudic scholars, Rabbi Goldberg tried to define a way to protect the interests of intellectual property towards an intangible. He bases his theory on the legal concept of “Shiur” (retention). According to Talmudic Law, it is possible for someone to sell an object while retaining some of the rights over the sold objects. The example in the Talmud[2] deals with the sale of an animal in which the seller wishes to retain the shearing and offspring of the animals he sold. While the actual animal becomes the sole property of the new owner, the new owner is limited in his ownership by the fact that the previous owner retained the rights to the shearing and offspring. Rabbi Goldberg posits that the same can be true with the sale of cassette tapes. The seller can decide to retain the right to copy the cassette. Therefore, according to this perspective, the buyer will get all the rights a normal buyer gets but will not have the right to copy the cassette. If he does copy the cassette, he is committing an act of theft since he is contravening with the right of property of the seller.
Rabbi Goldberg himself recognizes two major shortcomings to his approach. Firstly, for this approach to be valid, the retention clause must be clearly stated on the cassette. It must not be ambiguous. Rabbi Goldberg states that the clause must clearly state that the actual sale is being limited and not merely prohibit copying the cassette. Secondly, Rabbi Goldberg concedes that his approach will not work on an already copied version of a cassette. Therefore, after one person broke the law, others can copy from his version since there will be no retention clause on his copy of the cassette. He, however, argues that these problems can be solved through a combination with the other approaches analyzed in this paper.
Rabbi Naftali Bar Ilan[3] disagrees with Rabbi Goldberg and writes that it is not possible to retain an intangible[4]. The law of retention only applies to tangibles. Rather, Rabbi Bar Ilan tries to create a protection of the author’s rights under the concept of a conditional sale (Tnai)[5]. A sale can be made conditional to the agreement of the buyer not to copy the object he is buying.
Even according to Rabbi Bar Ilan, the two limitations to Rabbi Goldberg’s approach still apply. The rights of intellectual property will not be properly preserved. While these two approaches deal with the law of property and the law of sale, they do not address the issue of intellectual property substantively but rather try to protect the interest of the seller through other aspects of property law. This creates the possibility of many cases under which the rights of intellectual property would not be protected.
[1] Supra Note 22.
[2] Babylonian Talmud, Bava Metiziah, 34a.
[3] Rabbi Naftali Bar Ilan, Techumin, Volume 7, (5746), pp. 360-380
[4] Shulchan Aruch, Choshen Mishpat, Siman 212 and the Commentary of the SMA
[5] Babylonian Talmud, Kiddushin, 49a.
