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 2.
Conclusion
We have looked at many attempts to integrate the law of intellectual property within Talmudic Law. However, none of those approaches have protected all the rights protected by intellectual property law. Still, together, all those approaches can cover most of the rights protected by intellectual property law.
Some people will look at this fact and conclude that there is no true place for intellectual property in Talmudic Law. Others will look at this fact and argue that it shows that intellectual property is in fact in the spirit of Jewish Law.
Talmudic Law has never been a static set of rules but rather a dynamic legal system always changing and evolving. The study of intellectual property in Talmudic Law has given us an interesting look at the dynamic nature of this normative, religious, legal system.
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.
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Burning CDs
One of the most relevant instances of intellectual property in today’s world is with respect to technology which allows the copying of music CDs. Most legal systems all around the world have adapted themselves to ensure the rights of the rights of the artists would be protected. However, how would Talmudic Law relate to such an instance?
According to the approach based on Dinei Demalchuta Dina, Talmudic Law will be the same as the law of the jurisdiction in which the copying has taken place, which is different in many countries today.
According to the approaches based on both undue competition and the laws of enjoyment, burning CDs would seem to be illegal. However, in a case in which a person burned a CD that he knows he would have never bought, there would be no loss of enjoyment or undue competition. Therefore, in such a case, one might argue that these approaches would not make the copy of CDs illegal. On the other hand, since such a standard is extremely subjective, one might argue that in order to ensure one would not lie to himself and rationalize his actions
According to the approach based on property law, the same rules should be applicable whether the object in question is a CD or a book. Therefore, if a note has been placed on the CD forbidding it’s copying, it would become forbidden to copy it either because the remainder rights of the artist or because of the concept of a conditional sale.
The Custom of the Artists here could apply, according to Rabbi Batzri , to commercial sales of burned CDs. However, it would not apply to the actions of individuals.
The Rabbinical Legislation would not apply since it has never dealt with the copying of music as it was definitely not an issue at the time the Rabbinical Legislation was enacted (according to Rabbi Sofer ).
It is therefore unclear, depending on the approach one takes, burning CDs is against Talmudic Law.
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Tzipiyah.com will be moving to (a) a new host and (b) a new bloggin platform.
This means a lot of changes will be coming up, with a new design and a completely new user experience.
While some changes will seem negative, overall, this change is best for the continued growth of Tzipiyah.com and for in a long term perspective.
This change means that at some time in the next few days, when we will initiate the change, Tzipiyah.com will become unavailable for a bit of time. Then, even once it is available, as we start configuring it for the best possible user experience, there will be some down times. In a maximum of 2 weeks, everything should be running smoothly with an upgraded Tzipiyah.com available for your enjoyment.
Once again, I believe this change will allow a tremendous growth for Tzipiyah.com and hope our current readers will be patient and we slowly move towards the new and improved Tzipiyah.com
A lot of people, especially in religious circles, are quick to dismiss the Olympic games as something very superficial and negative which encourages the worship of the physical body rather than the spiritual essence of a person. I disagree.
Yes, those people are right. In their earliest origins, Olympic games were first and foremost part of Greek culture of the worship of the physical body. That being said, I think that the current format of the Olympic games is about something much deeper. In the Olympic games nowadays, we don't have different individuals combating to show they have the greatest physical abilities in the world. Rather, we have individuals representing their countries in a competition - representing their nations in order to bring some pride to their countries.
These individuals care less about personal success and much more about national pride. Except for the few spectacular phenomenons such as Michael Phelps, people do not even remember the names of the winners. What we remember is the drama of the battle in the medal counts. In Israel's case, when we are proud of an Olympic winner, it is not so much because we admire his physical strength, but because we are proud of Israel's achievement in producing such an incredible athlete.
I won't deny the fact that that the focus on athletics in the Olympic games is a focus on something which is not the essential thing in life. Of course, the spiritual is much more essential than the physical. However, I do think the Olympic games bring out a great feeling of national pride, which is one of the most important feelings for an individual to have. I encourage everyone to keep cheering for the Israeli Olympic team. Even if all we currently have is one bronze medal, the simple fact of cheering for our Olympic team can be a great way to motivate our national pride.
May our spiritual strength only surpass our physical accomplishments but may our physical accomplishments be great so that they may also inspire a deep pride in our incredible nation.
What is your opinion on the Olympics?
Photocopies of old books
A similar question arises with respect to books which are not on sale anymore. Since it is impossible to purchase these books, would it be permissible to photocopy a full copy of the book for personal use?
According to the approach based on Dinei DeMalchuta Dina, we need to defer the question to the law of the country in which the question applies. Such an action would also fall within the realm of the doctrine of fair use. Therefore, since it is legal under the law of the land, it would also be allowed under Talmudic Law.
According to the approach based on undue competition, an important question arises. On the one hand, the book is not for sale at this moment and therefore, such an action would not immediately create competition for the original publisher. However, if the publisher ever decides to start printing copies of the book again, a serious problem arises. In such a case, it is unclear whether or not it would be permissible to continue using those photocopied books.
A similar problem arises according to the approach based on the law of enjoyment. Once again, at the time at which the book is out of print, there is no problem since this falls within the realm of someone who enjoys something without causing any loss to the other. However, once the original publisher decides to print more copies of the book, it is once again unclear whether the copied version of the book can be used.
According to the approach based on property law, the reasoning would be similar to the one applied for the purpose of classroom use. Therefore, if there was a note written in the book forbidding its copying, it would suffice to make is illegal to copy.
The Custom of the Artists would not apply in this case since it deals with the actions of an individual. Also, the Rabbinical Legislation would, even according to Rabbi Moshe Sofer , not apply since it is unlikely that the scope of the original Rabbinical Ban applied to such a case.
Once again, we see that the conclusion reached on this issue varies according to the approach which is taken.
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This past Saturday Night, Americans had a chance to see the presidential candidates discuss issues of faith in a Church. As I looked at this pretty unusual but powerful program, I started thinking about Judaism's stance on the very controversial topic of faith and religion. The big question that everyone often asks is: "Should Rabbis speak about politics?" and "Should Religion and State be separated?". Most people connect both these questions together but I think they are two very distinct questions with different answers.
But first, what exactly is politics?
According to Rav Kook, in his famous Mahalach HaIdeot, politics is the tool which is used to organize societies. Political science, therefore, is the study of different ways to organize society. On the other hand, "religion" (and, even if they will hate this, I am including atheism and agnosticism as religions) is about what people believe. It's about their purpose in life and how to make their lives meaningful.
Politics is therefore very practical while religion is meaningful.
Should religion and State be separated?
Yes, to a certain extent. These two things have different goals which sometimes contradict each other. Sometimes, what is best for Klal Israel is not what is best for the religion. A very caracatural example of this would be: Giving money to yeshivot instead of giving it to the defense department and the army would be detrimental to Klal Israel. The torah (which is not simply a religious text but includes a great deal of political science) does not want this!
Therefore, in Torah, we have different branches in the organization of the Jewish Nation. The king is not the Kohen Gadol, he's not even a Kohen! Still, we pray and hope that the king is a religious king. Yet, it is not his religiousness which makes him king. He is king regardless. We just hope and pray that he be religious.
Some commentators explain that the reason why the Torah requires the King to write two sifrei torahs for himself is because, unlike other Jews which only write one, the King has two different ways to read the torah. On an individual level, he needs to read the torah like every other Jew in order to fully live his own religious life. On a national level though, as King, he needs to read to Torah in order to get insights from it from a political standpoint. It takes a completely different perspective to read it properly as a political leader.
In short, the Torah does require a certain separation between Religion and State since a proper political leadership cannot solely have religious goals.
Now, Should rabbis speak about politics?
Someone said this weekend on CNN: "If anyone claims that their religion does not affect their political positions, they are either lying or stupid". This is obvious! A person's beliefs are going to influence his priorities, they are going to influence how he views the society he wants to create.
Rav Tzvi Yehudah was once asked: "I love religious zionism but it is too political. Why do you speak about politics so much?". Rav Tzvi Yehudah answered: "If I don't speak about "politics", what do you want me to speak about? Torah is full of politics!".
Our torah's goal is to build a nation of priests and a holy nation on the land of Israel. That is our goal. So rabbis are not only allowed to speak about what our goal as a nation is, but are obligated to do so. Today, people call this politics, even though it does not fall in our previous definition of politics. Here, we are not talking about specific decision on how to best organize the nation for practical terms. We are talking about faith and values which should guide the nation. Of course rabbis should speak about these things!
Should rabbis decide which units to use when going to war? No, this is practical politics. Should he decide what the minimum wage is? No, once again, this is practical politics. However, rabbis have the obligation to discuss how important the security of the state of Israel is. They have the obligation to discuss how important social justice is. They must also be available for advice from people who want to know if the practical politics which they wish to implement is representative of the faith and goals which Klal Israel should have. However, they should not be the ones making the detailed practical decisions.
Of course, many rabbis have been in the Knesset since the creation of the state of Israel. However, in the Knesset, their jobs were not those of Rabbis but first and foremost of politicians. When they were speaking and teaching about the goals of Klal Israel, then, they were acting as rabbis. I think that it is possible for one person to do both if he knows that the two jobs have two very different demands. After all, David Hamelekh was one of the greatest sages and spiritual guide who still guides us through his Tehillim. He was also probably our greatest political leader ever.
In conclusion, there is, in Judaism, a distinction between religion and politics. However, this does not mean that our faith does not have a significant role in our political ideology. Torah recognizes that our political ideology, the goals of our nation, are shaped first and foremost by our religion. Still, Torah recognizes that when applying these goals practically, it is politicians which need to make the detailed decisions in the interest of the State and all of Klal Israel, and not Spiritual leaders in the interest of the religious world.
This topic I just discussed is quite controversial, and I don't claim my approach is the only valid one. I encourage everyone to share their thoughts and approach on this subject.
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There is an incredibly difficult paradox in Judaism: On the one hand, Judaism promotes personal growth and attachment to God. Hundreds of books have been written on personal perfection in order to attain the highest levels of individual service to God. On the other hand, Judaism is first and foremost a national message. How are we to reconcile both these forces which often push in opposite sides? Where should our emphasis be?
In the fifth chapter of Pirkei Avot, the second mishna states:
"There were ten generations from Adam to Noah, to show how great was His patience, for every one of those generations provoked Him continually until he brought upon them the waters of the Flood."
God waited 10 long generations before bringing the flood to the world. During these 10 generations, the world always deserved to get the flood but God showed great patience and waited until the 10th generation to bring destruction.
The Next Mishna says something similar:
There were ten generations from Noah to Abraham, to show how great was His patience, for every one of those generations provoked Him continually until Abraham, our father, came and received the reward of them all.
Now, there is a fundamental question which needs to be asked to understand the deep message of this mishna. From a first superficial reading, we might think that everyone in the world during these 10 generations was evil, until Avraham finally came. But wait a minute... Who was living in these 10 generations? Who was living during each of these 10 generations, starting from the very first all the way to Avraham Avinu?
There were two huge talmidei chachamim who lived then: Shem Ve-Ever. Now these were not small time talmidei chachamim, these were the people who later became the teachers of Yaakov Avinu when he went to learn in “yeshiva”. So how is it possible that they did not have enough merit to save the world? What did Avraham have that they did not?
The answer is simple, yet very powerful.
Avraham Avinu was one who taught torah to the world. He went out and enhances the collective connection to God. Shem and Ever are heads of a yeshiva where they would teach the people who came, but would not go to do any outreach. Their main focus was on studying and deepening their connection to God and teaching those who came to learn from them. They did not worry of the collective.
Avraham Avinu understood that the whole point of torah is Tikkun Olam, the fixing of the world by bringing Gods presence in this world. Jewish Tradition tells us that God's presence in this world is achieved through the building of Am Israel as a holy nation on its land.
So, let us return to our dilemma: Are we to focus our energy on personal growth or collective growth?
The answer is simple: The purpose of our personal growth is to eventually contribute to the collective. In Judaism, one does not become pious by separating himself from the world and working on his own spiritual agenda. One does not become pious by avoiding the realities which could hurt him spiritually and let others deal with them. One becomes pious by confronting those realities head on, and connecting themselves to all types of Jews so that, collectively, we will be able to move forward towards a collective growth.
Of course, in order to properly affect the collective, one needs to work on his own personal self. However, one should not mistake his own personal perfection as the ideal goal of Judaism. A pious person who lives in a morally degraded world needs to ask himself why he did not contribute more to the betterment of that world.
In short, Judaism is not about separating yourself and putting yourself in an ideal world for your personal spiritual growth. Judaism is about turning the world around you into a world which will be ideal for all of our collective spiritual growth.
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.
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Another Tisha Beav has passed and we are once again looking for consolation. The temple is still not rebuilt. We still have a lot of reasons to mourn.
At the end of the afternoon prayer service of Tisha Beav, some sfardi Jews include verses which speak of the future redemption in order to start the process of consolation of the Jewish Nation as we realize the temple is still not rebuilt. I think the idea behind this tradition is very deep and important:
At this point, at the end of our mourning period, we remember what the "Tachlit" is, what our ultimate destination will be. We remember how incredible the description of this time by the prophets truly is. We regain hope by remembering that the end will be incredibly joyous.
But what about now? Ok, the future will be joyous, but what about now?
I think we can get an incredible amount of consolation by understanding that all the sufferings we are going through right now are the things which will ultimately lead to this Goal. Our time is the time of the tahalich, the process. This process is necessary in order to get to the goal. Once we realize this, then we can better assimilate all the hardships which come up during this process.
In our generation, in which the Jewish Nation has returned to its land to rebuild it, this connection becomes so much more obvious. All our hardships are simple part of the troubles which lead to the completion of our redemption which started in 1948. All those hardships are just like birthpangs which ultimately lead to the birth of a child - our hardships will lead to the birth of the most incredible period of time.
As we end this time of mourning, we must remember what we are striving towards, and we must remember that the current process, the current path we are taking, is one which leads towards this incredible goal.
This realization will not only help us emotionaly cope with the hardships of the current process, but, also, hopefully enable us to better utlise our strength towards the unfolding of our ultimate redemption.
May it come very soon.
How doth the city sit solitary, that was full of people! How is she become as a widow! She that was great among the nations, and princess among the provinces, how is she become tributary! (Meguilat Eicha)
Rabbinical Legislation
According to Talmudic Law, Rabbis have the power to legislate what is known as Takanot. As we have seen, there have been many bans against copying published by rabbis at the preface of books, in the Haskamot. Some have suggested that these bans can be seen as a new legislation enacted by the rabbis to protect rights of intellectual property. However, it is important to note that the formulation of those bans were not in the language of legislations but rather as a warning towards those who would decide to copy these books. For this reason, as we have seen, most people interpret these bans as expressing a warning against already existing prohibitions linked to copying. Also, even if these bans were to be rabbinic legislations, there is no reason to believe they have any legal effect other than to the book in which they are written.
Rabbi Moshe Sofer[1] writes that there is a prohibition which predates the bans, but needed to be reaffirmed in each new book since each publication has different properties. By reaffirming the prohibition in the Haskamot, the rabbis were ensuring that this legislation would apply to these specific books.
However, even through the wider approach of Rabbi Sofer, such a rabbinic legislation would not apply in cases which differed from the original intent of the prohibition. Therefore, it is unclear if it would be valid in cases not dealing with the publication of books. The limitation of this approach is due to the fact that the rabbinical authorities have not yet created a full system of protection of intellectual property rights. Rather, this approach uses a single ban in order to try and recreate a full and complex area of law.
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[1] Supra at Note 5.
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There are two main schools of thoughts in what we call Jewish Philosophy. One, lead by the likes of the Rambam and Rav Saadiah Gaon, is known as the rationalist. The other is known as the to many as a more nationalist approach lead by the likes of the Maharal and the Kuzari. Now, we all know that the Rambam was also a nationalist: Like every other Jew, he thanked God, every morning, for choosing the Jewish Nation. We also know that the works of the Maharal and the Kuzari were both also very rational. What is, therefore, the difference between these two schools of thought?
I believe that by simply looking at the structure of their writings, we will be able to find the deeper, truer, difference between these two schools of thought. Then, when we properly differentiate between them, we will be able to find the appropriate way for us to approach Jewish thought.
The Rambam and Rav Saadiah Gaon both wrote their big work on Jewish thought, the Moreh Nevuchim and Emunot Ve-Deot respectively, in a systematic way. They went topic by topic and explored it systematically. The Maharal and the Kuzari had a different approach.
The Kuzari is written in a literary way. It is set in a story of a king who has a dream, and in this dream he receives a prophecy which tells him to explore his religious practice because, while his intentions were good, his actions were not good. The whole book of the Kuzari is an attempt at understanding this prophetic message that this imaginary (although historically half-accurate) King had.
The Maharal, in his books, whenever he explores a topic, starts by looking at a story from our sages in the Talmud. He never explores a topic directly but rather first checks what our sages, who lived right after the cessation of prophecy and therefore had a Jewish thought still very influenced by prophecy, had to say about it.
Both the Kuzari and the Maharal have very rational thoughts, however, the source of their belief system is not a purely rationalist method of thinking. They start with a premise and that premise is the accuracy of prophecy, the accuracy of the Torah. From this premise, they rationally expound everything that they believe.
I believe that the reason for that is very simple – the Maharal explains in Netivot Olam that there is no way a human being can get to the truth. He will always have some doubt. Philosophy can, at best, lead you to a state of probability but it can never extinguish the doubt. Therefore, by trying to find God through philosophy without any previous premise, all we can get to is to a statement in which “God is most probably real and he most probably wants us to do this and this”. The probability is sometimes extremely convincing, but it is never certainty.
However, when we meet God, as I explained in this post, we can get ourselves to a premise in which we know for sure that God exists and that his Torah is true. We don’t do this blindly, we do this by meeting him, as explained in this post.
Once we have this premise, all the rational expounding that we do is one of certainty. Sure, there is still some doubts, and that is what leads to maklokets – the more we move away from the time of prophecy the more expounding there is to do and therefore the more doubt and different opinions emerge. But we have the certainty of going from the right source, and expounding from it through ways which the source deemed accurate.
I cannot emphasize enough that even those rabbis were extremely rational. Their words did not go against the reason. However, the source of their truths was not from reason but from an objective source of truth. And sometimes, in that source of truth, there were things which were beyond reason – not irrational, but similar to the fact that a second grade student cannot do a difficult division. His reason is simply not at that level yet. However, that division will not contradict his reason.
Why then did the Rambam not use this method? I have no doubt about the fact that the Rambam premised his own personal thoughts with the validity of Torah. However, his book of Jewish Thought was written specifically as a response to the Jews who were leaving the faith to go to Aristotelian philosophy. Therefore, his approach was one of probability – he wanted to show that even through the eyes of Aristotelian philosophy, without meeting God, Judaism has great probabilities of being true.
Rav Saadiah Gaon, according to some scholars, was also responding to a group of people. He was responding to the Karaites.
Therefore, when responding to others, our sages teach us how to speak their language. When today, Judaism is attacked from many different angles, we have rabbis writing books speaking their language showing them it is not great attacks. One such books has a great title: Permission to Believe. I’m not saying I’ll prove anything 100%, but I’ll show you that you have the permission to believe, it is not irrational.
When attempting to live a truly complete and enhanced Jewish Life, while the systematic method of the Rambam is important for study purposes in order to clarify some of the most essential concepts, the method of expounding from the source and starting with a true meeting with the Almighty is a much more meaningful approach.
Custom of the Artists
One of the sources of legal obligations, in Talmudic law, is called “the Custom of the Artists”. The Talmud[1] explains that an agreement between the members of a certain profession can become binding on these members. For example, the artists of a city may agree to divide their days of work between each other. Afterwards, if one was to break this agreement, he could be charged with a fine. The Talmud also explains that if there is an important person living in the city, his approval would be necessary to ratify this agreement.
The Divrei Chaim[2] used this principle in order to attribute the rights of intellectual property. He explained that there was a custom amongst publishers not to copy the work of others. He also explains that this was the original reason for the Haskamot which noted a prohibition on copying works. Since a custom requires the approval of an important person, the Haskamot served as proof of this approval.
The Parashat Mordechai[3] writes that even if this was true, it would not apply in our times. He explained that, in his time, the publishers were against the limitations imposed by intellectual property. Since such a custom must be sourced in the consent of the artists, it cannot exist where the artists are opposed to it.
The Tzemach Tzedek[4] agreed with the Parashat Mordechai and added that for a custom to be established, tacit acceptance is not enough. The artists need to expressly agree to the new custom through an announcement of some sort.
The applicability of this concept in our times is still unclear. Rabbi Ezra Batzri[5] writes that since all the publishers follow this custom, it is forbidden to copy the work of another publisher. However, Rabbi Chaim Navon[6] writes that such an approach is flawed for two reasons. He first notes that the objection of the Tzemach Tzedek still stands. It is unclear whether tacit acceptance is enough. Also, in our times, the true problem which needs to be legislated is with respect to the actions of publishers but rather individuals. While publishers mostly follow the principles of intellectual property, individuals don’t. It is unclear whether the “custom of the artists” can apply to individuals. Also, even if it could, its basis is in the consent of the parties involved. In this case, the individuals are definitely not expressing consent since they continue to infringe the principles of intellectual property by copying books, CDs and many other forms of intellectual property.
[1] Babylonian Talmud, Baba Batra, 8b.
[2] Divrei Chaim Responsa, Choshen Mishpat at Siman 56.
[3] Parashat Mordechai, Hoshen Mishpat, Siman 8.
[4] Tzemach Tzedek Responsa, Yoreh Deah, Siman 195.
[5] Supra at Note 22.
[6] Supra at Note 2.
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This time of mourning in the Jewish calendar is quite difficult for me. Most people know me as a natural optimist. I constantly grapple to find the right way to mourn the loss of our temple. One thing is especially hard for me to grapple with, and I hope some of you can provide me with some insights in the comments section.
During the 3 weeks of Ben Hametzarim, we mourn the destruction of our temple. Yet, during those three week, we are also hopeful that it will once be rebuilt.
The Gemara in Makkot 24b relates a famous story:
Again it happened that Rabban Gamliel, Rabbi Elazar ben Azaria, Rabbi Joshua and Rabbi Akiva went up to Jerusalem. When they reached Mt. Scopus, they tore their garments. When they reached the Temple Mount, they saw a fox emerging from the place of the Holy of Holies. The others started weeping; Rabbi Akiva laughed.
Said they to him: "Why are you laughing?"
Said he to them: "Why are you weeping?"
Said they to him: "A place [so holy] that it is said of it, 'the stranger that approaches it shall die,' and now foxes traverse it, and we shouldn't weep?"
Said he to them: "That is why I laugh. For it is written, 'I shall have bear witness for Me faithful witnesses--Uriah the Priest and Zechariah the son of Jeberechiah.' Now what is the connection between Uriah and Zechariah? Uriah was [in the time of] the First Temple, and Zechariah was [in the time of] the Second Temple! But the Torah makes Zachariah's prophecy dependent upon Uriah's prophecy. With Uriah, it is written: 'Therefore, because of you, Zion shall be plowed as a field; [Jerusalem shall become heaps, and the Temple Mount like the high places of a forest.]' With Zachariah it is written, 'Old men and women shall yet sit in the streets of Jerusalem.'
"As long as Uriah's prophecy had not been fulfilled, I feared that Zechariah's prophecy may not be fulfilled either. But now that Uriah's prophecy has been fulfilled, it is certain that Zechariah's prophecy will be fulfilled."
With these words they replied to him: "Akiva, you have consoled us! Akiva, you have consoled us!"
Are we not, during the three weeks, taking the approach of the other sages? (An approach which has been proven to be inappropriate)
Your thoughts would be appreciated.
We now turn to the last of our forefathers as we continue our journey through the history of the land of Israel.
Yaacov went out of Israel, but it was not out of his choice, rather because he had to flee from his brother Esav.
On his way out of the land, he got his famous dream in which he saw “a ladder set up on the ground and its top reached to heaven; and behold, angels of God were ascending and descending upon it.” (Bereishit 28:12). Rashi explains ascending and descending - Ascending first and afterwards descending. The angels who escorted him in the [Holy] Land do not go outside the Land, and they ascended to heaven, and the angels of outside the Holy Land descended to escort him.[From Gen. Rabbah 68:12]. From his dream we saw, once again, the special holiness of the land of Israel
Once he had 11 sons, he was ordered by God: “Now, arise, go forth from this land and return to the land of your birth.” (31:13)
In the Zohar, it says that when Yaacov returned to Israel, he had an even greater level than when he left. I heard from a Rav that the reason for that was that he came back with his 11 sons, as a Tsibur, a collective, not alone, as a yahid. This is a much greater level of aliyah!
Yakov then went to Schem and he bought a peice of land. With this kinyan, there is a proof for generations that we a have double claims to these places: Schem, Maarat Hamachpela as we saw with Avraham, and the Beit Hamikdash which David will eventually buy.
There was, afterwards, another famine, and Yakov had to go to Egypt there, finding Yossef there. Through this descent the promise of brit ben habeitarim given to Avraham – that we will be foreigners in a land which is not ours, was becoming a reality. In the torah, God tells Yacov not to worry since he will be buried in Israel. From this, we see that Yacov was worried not to be buried in Israel. God promised him his sons will return to Israel.
Right before his death, one of his last wishes was to be buried in Israel. He also had an influence on Yossef who also ended up being buried in Israel.
From these things we see the importance of being buried in Israel. The Gemara in Ktuvot says that those who are buried in Israel are as if they are buried under the sanctuary. It is also said that those who are buried in Israel are alive during their deaths – an obviously positive reference (even if difficult to understand precisely). There has been a minhag for generations to burry people with some land from Israel, once again showing the importance and holiness of this land even to this death.
Here, I want to add a little note: I heard a few people say that since it is so important to be buried in Israel, they will want to be buried there when they died. This is praiseworthy. However, as Jews living in a special generation of rebirth, our goal should not simply be to be buried in Israel, to die in Israel, but rather to live in Israel. Eretz Israel is called the land of the life, and it is by living in Israel that we can truly integrate the holiness of the land into our being, not simply by being buried there.
The Dark Knight, the new Batman movie, is breaking records in the box office. The movie is not only action packed but also full of mind troubling philosophical and moral questions. There are loads of specific questions addressed in the movie. In this post, I want to focus on one thread which I think goes throughout the movie and look at it through our very own Jewish eyes. This overarching theme, in this movie but interpreted through the eyes of Jewish thought, will help us better understand some basic principles of Jewish thought as well as guide us through an authentically Jewish interpretation of the most important events of our history.
Batman vs. The Joker: Hope vs. Destruction
The rivalry between the Joker and Batman is much more than the regular rivalry between a hero and a criminal. This is emphasized throughout the movie with Batman constantly trying to understand the reasons for the Joker's actions and even, at some point, other criminals trying to help the authorities stop the Joker. The Joker is not just a simple criminal. He represents an ideology. While his eccentric behavior makes his ideology seems crazy and irrational, one quickly realizes that his ideology is, at first sight, frighteningly coherent. What is this ideology and how is it to be contrasted with Batman's?
The Joker is all about chaos. He says it himself on numerous times in the movie. He believes that the only reason people act good is when it is for their own good. Therefore, there is nothing intrinsically good in this world. In such a world, the final destination is always chaos, armageddon or apocalypse. This world is bad.
On the other hand, Batman has hope in this world. He believes this world can be good. He believes that Gotham is constantly, yet slowly, evolving towards a better self. They're becoming better, they're becoming good people. A city which was full of criminals a few years ago is now much more quiet. There are even idealists, copycats, who try to be superheros themselves (even though putting themselves in danger is quite idiotic and puts Batman in a horrible position).
Joker believes the world is going towards chaos. Batman believes this world is going towards something extremely positive -there is an order to this world. Joker does not believe there is value in this world. Batman believes this world can and should be fixed.
Joker's philosophy is echoed in many of the world's religion. All of those religions which overemphasize the world to come, which see in this world only a host of challenges which are simply dangers towards our entry in the world to come, have a little bit of Joker in them. All of those religions which believe that there is no way for man to get to the World to Come because he is fundamentally bad, and only through the acceptance of a certain principle (such as JC) will he be saved from eternal damnation has a little bit of Joker. Those religions believe that the world is bad and going towards chaos and armageddon, and only some supernatural forces can pluck them out of the chaotic reality of this world and bring them towards a true fullfilment.
Judaism says the complete opposite: "Kol Israel Yesh Lahem Helek LeOlam Haba" - Every Jew has a share in the world to come. Yes, even if you are completely irreligious, you have a share in the world to come. And although the mishna goes on to list exceptions to this rule, the mishna had to start with this basic premise: Everyone will get a share in the world to come. In Judaism, we start with an A, and then, we could possibly loose it. In some other religions, you start with a failing grade, an F, and only through certain actions can you attain the A. This clearly establishes the optimistic nature of Judaism.
In Judaism, the world is not going towards Chaos. The world is slowly slowly, yet constantly, moving towards redemption. This very world will be the source of our redemption, and we are the ones who will bring it. The world is not fundamentally bad, it is fundamentally good, yet it's potential needs to be brought out. Our world will always move forward towards redemption. Batman seems to be believing in this incredible principle of Judaim!
These ideas came to test in what will probably become a famous scene of this movie: the scene of the two boats. On one boat, you had a bunch of criminals. On the other boat, you had normal civilians. On each boat, there were enough bombs to explode the whole boat, yet, there was a trick. The Joker left a detonator in each boat. Yet, the detonator in each boat was for the bombs in the other boat. The rules of the Joker's game were simple: If you detonate the bomb of the other boat before the other boat blows you up, you get to live. If not, the other boat will kill you. If no one detonates the bomb, both boats will be blown up by the Joker. The Joker was convinced that one boat would blow the other up. Batman wanted to believe the opposite.
In the end, none of the boats blew the other up. While individually, the passengers of the civilian boats voted to kill the prisoners, no one could make this collective action happen. While some in the prisoner boat wanted to kill the normal civilians, no one actually did it and the detonator was thrown off the boat. Both boats prefered sacrificing their lives than killing others. While the halachic discussion on this specific scene is very difficult (since one boat could maybe be considered rodeph), the message the movie was giving was clear: morality won! The Joker was wrong. People acted fundamentally good without having anything to gain!
According to Jewish Thought, there are two different forces acting in this world. One is called the derech habechiri, the way of choice, which is influenced by the freedom of choice of individuals. If individuals want to do good, they can. If they want to do bad, they can. The other is influenced by the fact that history is always moving forward towards the unification of God's name - Derech hayichud - the way of the unification. Even when individuals choose to do bad, as a collective, we are always moving towards the revelation of God's name of this world. This is true of the whole world, but even more true of Klal Israel which is God's ambassador on this earth. Therefore, our sages taught that Klal Israel had no freedom of choice. Sure, as individuals, we do. However, as a collective, whether we like it or not, we will always be revealing God's name. We will always be moving forward towards our final redemption. This seems paradoxical and it is why many sages have taught that freedom of choice cannot be truly undersood since the balance between these two forces can only be fully understood by God himseld.
This is the message of hope of Judaism. Even if individuals choose bad, the collective will always be moving forward towards God's unification on this earth, towards the ultimate good. Look at how the world has changed in the past thousands of years! Sure, there are some highs and lows (the Holocaust being the lowest of the lows), but who can deny that civilization today is much more moral than it was in Roman times? Even in the middle ages? Who can deny this constant progress towards a better world? Even moreso, look at how God played around with history in order to ensure that the Jewish people would constantly be walking towards their home, the land of Israel, and rebuilding their homeland over there. As a collective, we are constantly going towards the revelation of God's name in this world, even when individuals choose to do bad.
Rav Kook writes that the redemption from Egypt will forever stay the hope of the entire world. The whole entire world can get hope from the fact that Jewish slaves were saved from persecution in Egypt. This redemption showed the world that injustice does not last in this world. This is a world which grows towards justice. It will ultimately be good.
Judaism sides with Batman. The Joker is a symbol of everything Judaism disagrees with. This world is not fundamentally bad. It is not being lead towards chaos. We have the power to fix this world and bring it towards redemption, and, every day, we are getting closer to the day of this redemption.
The Wild Card -
One of the other characters in the Dark Knight is Two Face. Two Face was an extremely promising District Attorney fighting for good - a hero. However, after his girlfriend was killed by the Joker, he because completely crazy and started becoming an evil person. He was the symbol of the progress of Gotham and yet he became evil. Sometimes, good people become evil. Sometimes, in our process towards redemption, we have some lows which seem to indicate a step back. How can Judaism grapple with this question? How can we explain the steps back?
In the Yerushalmi, Chazal teach us that our redemption will come through a slow process. As they were going on a morning hike in the Arbel, watching the beautiful sunrise of Northern Israel, Rabbi Hiyah HaGadol told Rabbi Shimon Ben Halfata:
מתקדמת היא מתקדמת מהר יותר”
will come Kima Kima (slowly, slowly) and then, things will go quicker and
quicker”
Many people, when they read about this slow process of our redemption, understand that the redemption comes slowly in a nice straight line moving forward and higher, forward and higher, every day better than the previous.
However, our Rabbis teach us that really, the redemption comes through a different process. The process always moves forward, but it has both highs and lows, highs and lows. It’s like someone taking a hike in an area full of mountains: 
When you are on the top of a mountain the air is fresh, the sun is shining (A2). Then you get in a valley, in between two mountains (A3). Then, you start going back up again, reaching another mountain top (Gueoula). You are always moving forward towards your destination, but there are highs and lows, highs and lows. Actually, when you are on the top of a mountain, it looks as if the mountain top you want to reach is two seconds away. The gueoula is two seconds away! You feel as if it’s coming NOW, you want it NOW! (Mashiach NOW, Peace NOW, Everything NOW). Then, you start going back down and in the valley, the distance seems impossible to get through. Your vision only shows you a few meters going up. You start losing faith in your ability to complete the distance. It’s too hard. You can’t do it! However, once you realize that this low, this horrible low(A3), is still so much more ahead than the high you just passed(A2), so much closer to your destination (Gueoula), then you start appreciating the process of your redemption, even with it is has some lows.
כך היא גאולתם של ישראל
Two Face reminds us of the importance of our individual choice. We are all two faced with good and evil within us. If we choose good, we can do amazing things and ensure our process to gueoula will be as smooth as possible. If we choose bad, it can make things much more difficult not just for us, but for Klal Israel. In the end, however, no individual can stop the process of the unification of God's name in this world, of our redemption, from moving forward. It is constantly happening, slowly slowly.
Conclusion:
Our world is not fundamentally bad. Our world is one which hold some individuals which want bad, yet, everything in this world can be fixed. Our world is one which is constantly moving towards the unification of God's name in this world. Our world is one in which the ultimate goal is always coming closer and closer, our redemption is constantly unfolding.
Less than 200 years ago, Klal Israel's exile seemed to have become perpetual. There was no end in sight. Some people stopped believing it would end. Yet, through God's ultimate wisdom, a movement for our return to our land emerged out of the most unpredictable places. Shortly after, through even less predictable means, the State of Israel was established. After 2000 years of exile, the begining of our redemption has started. If one looks at the history of those 2000 years, we can quickly see that every event lead us to where we are today. We can't always understand why God chose certain paths, but we know that he constantly lead us towards our redemption. As we move forward from the start of our redemption towards our complete redemption, we must try and choose the right individual path so that, unlike Two Face, we can help Klal Israel go towards an easier path towards the ultimate redemption. However, we also need to put our faith in God, that even during the hardest of hardships, he is still leading us towards the greatest of times. We don't always understand why through these means or how it is done, but we know that he is constantly transforming our Atchlata Digueoula (Start of the Redemption) into a Gueoula Shelema (Complete Redemption) - may it come speedily. The message of Judaism is one of hope and optimism.
We will now continue the history of Eretz Israel with a look at Itzhak's connection to the land.
Itzhak became linked to Jerusalem through Akeidat Itzhak. There, God promised him he would received this land, the land already promised to Avraham.
Since Itzhak had a special connection to Israel, Avraham told his servant to go look for a wife for his son in Chutz Laaretz within his family, but under no circumstance could he take Itzhak out of the country. “Rak et Beni Lo Tashev Shama” – Just do not bring my son there (Bereishit 24:8). Avraham found Itzhak’s connection to the land more important than the connection to the special family of his. Also, he had faith that through his connection to the land, God would help him succeed find a wife: “The LORD, the God of heaven, who took me from my father's house, and from the land of my nativity, and who spoke unto me, and who swore unto me, saying: Unto thy seed will I give this land; He will send His angel before thee, and thou shalt take a wife for my son from thence.”
When there was a famine in Israel, Itzhak went down on his way to Egypt to get food but God stopped him on his way, telling him: “'Go not down unto Egypt; dwell in the land which I shall tell thee of. 3 Sojourn in this land, and I will be with thee, and will bless thee; for unto thee, and unto thy seed, I will give all these lands, and I will establish the oath which I swore unto Abraham thy father;” (Bereishit 26:2-3). Rabbi Hoshaya said in Midrash Rabbah that Itzhak was like an Olah Tmima, a kind of sacrifice, who, went it goes out of the beit hamikdash, cannot be put on the alter. So too, Itzhak could not go out of Israel.
Itzhak has an even greater connection to the land than Avraham. He was asked not only to walk the land, but also to work the land, to plant and to build.
(Inspired by a shiur I heard by David Hai Hakohen)
Yes, another one of our talented bloggers did it! After inspiring hundreds of people with his powerful words, Zemer is now also inspiring Klal Israel with his inspirational actions. It is with great pride that I want to announce his Aliyah this past week!
Zemer, everyone here at Tzipiyah.com is inpired by your actions. Last week was a tough week for Klal Israel and to know that you brought such incredible light to this world in such a tough time is incredibly inspiring.
We have all followed your writings religiously! The story is told of many rabbanim who, after arriving to the holy land, burned all of their previous writings since they were not at the level of their current understanding, now that they got to the land of Israel. We all know that Avira De-Eretz Israel Mahkima- The air of the land of Israel makes one wiser.
With the incredible quality of all of your writing up until now, we, your readers, can only wait impatiently for your upgraded, even better, version. However, we won't let you remove all of your previous posts even if you ask ;-), they were just too good!
As we weeped last week the words "Veshavu Banim Ligvulam - The sons will return home" in the most tragic circumstances, we are glad, proud and inspired to now sing joyously "Veshavu Banim Ligvulam" in the meaning for which it was originally meant, a meaning which espressed the longing and yearning - the tzipiyah- of two thousand years of Jews trying to get back to the land of Israel, a yearning which is finally being realized by people just like you.
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.
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