Intellectual Property Law in Halacha - Part 13

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.

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Intellectual Property Law in Halacha - Part 12

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.

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Intellectual Property Law in Halacha - Burning or Copying CDs - Part 11

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, part 9, part 10. This is now part 11.

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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Intellectual Property Law in Halacha - Part 10

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, part 9. This is now part 10.

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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Intellectual Property Law in Halacha - Part 9

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.

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Intellectual Property Law in Halacha - Part 8

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. Now, this is part 8.

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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Intellectual Property Law in Halacha - Part 7

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. Now, this is part 7.

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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Intellectual Property Law in Halacha - Part 6

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.

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Intellectual Property Law in Halacha - Part 5

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.

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Intellectual Property Law in Halacha - Part 4

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. Now, this is part 4.

The Laws of Enjoyment

Another approach which has been used in order to integrate the rights of intellectual property in Jewish Law is based on a unique Talmudic concept of the laws of enjoyment. The Shulachan Aruch[1] rules according to the Talmud[2] which states that if a person who enjoys a unilateral benefit from someone’s property without causing him any loss (zeh neheneh v'zeh lo chaser), he is not liable for having used that property without permission. However, if a person enjoys such benefit by causing loss to the original owner (zeh neheneh v'zeh chaser), he is then liable for such a loss.

Rabbi Yechezkel Landau, in his famous book called “Nodah B’Yehuda”, integrated this concept into the discussion on intellectual property[3]. The case which was brought to Rabbi Landau was, this time, truly a case of intellectual property. A certain scholar had authored a commentary on the Talmud and paid a publisher to print it with a certain letter arrangement. After finishing the printing of the commentated Talmud, the publisher kept the letter arrangement and printed more copies, without the commentary, in order to sell them for his own personal profit. The scholar then claimed that he owned a share in the arrangement of the letters, a right in this intellectual property. The publisher argued that since the actual letters belonged to him, the arrangement could not be owned. A deeper look at their argument can reveal that they were really arguing on the existence of intangible rights of intellectual property within Jewish Law.



Rabbi Landau ruled that when an author pays a publisher for a certain letter arrangement, he retains the rights to this arrangement even after the job has been completed and has rights to any reprinting which uses this typesetting:

He [the printer] has caused a great loss [to the author], for if the printer had not published these [second] books, there would have been a great demand for Reuven's [the author's] work [which included the Talmudic text]... Now, that Shimon [the printer] has printed [his volumes], these volumes which are cheap and in great supply will reduce the demand for Reuven's [the author's] work. Since the printer has caused the author a financial loss, we obligate him to pay all that he benefited from the author's share in the typeset arrangement.[4]



If this approach is accurate for the simple arrangement of letters in the printing of an already existing work, then, a fortiori, it should be valid for the rights of an author to his creation[5]. It is important to note that while the question brought to Rabbi Landau was one of intellectual property, his answer was given in the realm of the laws of enjoyment. He did not take the step to assign the status of property to the intangible being discussed but rather simply compensated the author for the losses he would incur from the publisher’s actions, not for the use of his property.

Rabbi Malkiel Tannenbaum[6] discusses a similar case where an individual invented a certain type of medicine and worked hard to get a special license from the government to distribute it. Afterwards, someone copied his invention and even used his license to sell the copied version. Once again, this is a typical case of intellectual property with the second seller copying the first seller’s product. Rabbi Tannenbaum, in his responsa, tries to better define the principle of zeh neheneh v'zeh chaser. He first posits that in order to apply this principle, the offender needs to have used the first person’s actual property. According to such an understanding, Rabbi Tannenbaum explains that in the present case, the second seller could not be held liable since he never used the actual license of the first seller when making a copy. However, Rabbi Tannenbaum then rejects this understanding and explains that it is enough to have an indirect use of the person’s property, and in this case, the person indirectly used the license of the first seller by making a copy of it. This analysis of Rabbi Tannenbaum is important since it shows that Rabbi Tannenbaum does not associate any property rights to the intangible creation of the first seller. Rather, the only way to hold the second seller liable is through the indirect use of a tangible object. This is a clear distinction from the concept of intellectual property. It also has clear limitations because without the physical representation of this intangible, a person would not be able to get compensated for his losses.

Rabbi Tannenbaum continues to explain another important aspect of this approach. He explains that while one could be held liable for the indirect use of a person’s property, the liability is limited to a compensation for the person’s investment in the creation of the product. A court would not be able to hand down an injunction forbidding such indirect use. The distinction between this case and the case which was decided by Rabbi Landau is that in that case, the publisher had actually used the arrangement of letters and the use of property is not considered to be an indirect use of property but rather a direct use of property. In such a case, an injunction can be handed down[7]. However, in most intellectual property cases, the use of property is only indirect and the liability is therefore limited to mere compensation for his losses in the creation of the product. In other words, the second seller can continue selling his product even after the decision of the court as long as he compensates the first seller for his losses.

Rabbi Zalman Nechemia Goldberg[8] analyzed the responsa of Rabbi Landau. He first explained that his position is really subject to a disagreement between earlier decisionaries (Rabbi Yitzhak and Rabbenu Tam[9]). Still, he explained that according to Rav Landau’s position, the right of compensation was not limited to the use of a tangible object (whether directly or indirectly), but rather, by the fact that the plaintiff spent money in order to create his product. By spending money, the individual gains special rights towards his creation. In Rabbi Landau’s specific case, the author did not have any right of ownership to the actual letters. The tangible actually belonged to the publisher. Therefore, his rights stemmed from the fact that he spent money in order to have this specific positioning of letters. This considerably widens the scope of this approach towards the issue of intellectual property since it allows for compensation even where there has been no physical expression of the intangible towards which the person has rights of intellectual property.

The approach based on the law of enjoyment still has its shortcomings. This approach is not intrinsically based on the law of property. Rather, it is based on the loss which is incurred by the potential owner. Therefore, in a case where there has been no loss, there would be no compensation.
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NOTE: The footnotes are a bit off (especially the "Supras") because I am splitting this essay in many parts, but I will list a full bibliography at the end of the paper.

[1] Shulchan Aruch, Choshen Mishpat, at Siman 363.

[2] Babylonian Talmud, Bava Kama, 20a.

[3] Nodah B'Yehudah, Volume 2, Choshen Mishpat, at no. 24.

[4] Ibid.

[5] Supra Note 4.

[6] Rabbi Malkiel Tannenbaum, Divrei Malkiel, Volume 3 at 157.

[7] Supra note 12.

[8] Rabbi Zalman Nechemia Goldberg, “Copying Tapes Without Permission”, Tchumim Volume 6.

[9] Cited by Tosafot at Babylonian Talmud, Ketubot, 98b.

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Intellectual Property Law in Halacha - Part 3

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. Now, this is part 3.

Undue Competition

After having analyzed the frame of mind of the scholars which dealt with Intellectual Property in Halacha as well as the historical background under which these issues came up, we will now explore the different approaches through which the scholars tried to integrate the rights of intellectual property into Jewish Law.

The first concept used was the one of undue competition. As we have seen, the first person to introduce this concept into the discussion of intellectual property was the Rama, although his approach was not geared directly towards intellectual property. The Talmud in the Tractate of Baba Batra introduces the concept of “Yored LeOmanut Chavero”, which can be paraphrased as undue competition[1]. The Talmud writes that “fishing nets must be kept away from a fish [which has been targeted by another fisherman] the full length of the fish's swim.” Even though the fish should in theory be considered common property, since the fisherman has already targeted them, other fishermen cannot target them because of undue competition. Until the fish is caught by the fisherman, it stays common property and he has no right of property towards the fish. Still, his business is protected under the commercial law of undue competition.


The Rama learned from the discussion in the Talmud that it is forbidden for someone to enter the business of another if he will definitely cause him harm. Through this approach, the Rama concluded that a publisher could not publish the same work as his competitor since it would definitely cause him harm.

This approach has also been taken by the Chatam Sofer in protecting ones right to his own creation:

If the case is so [that limited protection is granted] for printers of other texts [already in the public domain], so much more so for one who created a new entity... for example, the consummate scholar, Rabbi Wolf Heidenheim, who spent countless hours in the editing and translating of the piyutim... and why should others profit from his creativity? It [our case] can be compared to the case of the fisherman who by means of his actions caused the gathering of the fish... [2]

On the issue of the prohibition against taking the fish from competitors, Rabbi Meir, father of Rabbenu Tam explains that the reason for such prohibition is because the original fisherman baited his nets with dead fish and this attracted a lot of fish in the area. Therefore, by taking this fish, the other fishermen would be unfairly taking advantage of the first fisherman’s work.[3] The Chatam Sofer therefore explains that the concept of undue competition in halacha is based on a “labour argument”: one who works for something should be able to enjoy the fruits of his labour and not have it taken away by someone who did not work as much. Therefore, according to this approach, this law can apply to the rights of an author to his creation.

However, this approach is not substantively linked to the concept of intellectual property. This approach falls within the realm of Commercial Law rather than Property Law, and thus falls short of providing the right of property to the author of a book.

This approach also raises a difficulty in today’s world since it only applies when the commercial interest of a person is hurt by someone who opens a similar business in his own town. In the case of the fisherman, the geographic reality was of obvious importance. Some scholars have tried to argue that the whole world can be considered like a single town when it comes to the publishing of books since the commercial interest of the publisher is not limited to a certain town[4]. However, this argument is not coherent with another aspect of the law of undue competition. In Jewish Law, undue competition can only apply when someone comes in from another town and opens the same business which will cause the financial harm. If the whole world can be considered like a single town, how then can someone come from another town and be guilty of undue competition?[5] If the whole world is considered like a single town, the very concept of undue competition becomes irrelevant.

Some have also argued that undue competition cannot apply to holy work since in those cases the emphasis should be to provide the best possible service. The printing of religious texts can be considered one of those holy works[6]. Also, if competition law is used to protect one’s right to publish a certain book, it is unclear whether such a protection can be inherited while property can definitely be inherited.[7]

All these difficulties stem mainly from the fact that the use of competition law is ineffective in giving property rights to an individual. While this law can protect one’s commercial interest, it would not assign him property rights to his creation and he will not have all the benefits provided by property law.

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NOTE: The footnotes are a bit off (especially the "Supras") because I am splitting this essay in many parts, but I will list a full bibliography at the end of the paper.

[1] Babylonian Talmud, Baba Batra, 21b.

[2] Supra note 5 at Choshen Mishpat, no. 79.

[3] Babylonian Talmud, Kiddushin, 59a, Tosfot Commentary.

[4] Rabbi Yaacov MiKarlin, Kehillat Yaacov Responsa, Choshen Mishpat at Siman 2.

[5] Rabbi Chaim Navon, “Copyright Law”, online: VBM .

[6] Tzemach Tzedek Responsa, Yoreh Deah at Siman 195.[7] Supra note 12.

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Intellectual Property Law in Halacha - Part 2

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.

History of Intellectual Property in Jewish Law

The first appearance of principles related to intellectual property came in the form of Rabbanic Approbations (Haskamot). These Haskamot served two purposes. First, they served as a “seal of approval” as to the validity of the person’s work. Second, they would serve as a ban against publishing another version of this work.[1] According to Rabbi Moshe Sofer (Chatam Sofer)[2], the first ban which served as a prototype to all future bans was written by Rabbi Moshe Isserlis (the Rama)[3]. The issue at stake was that after a certain edition of the Mishnei Torah, a work by Maimonides, came out from a first publisher, a second publisher brought out an edition which was priced much lower. The Rama argued that this went against the principles of undue competition, taking an approach to the protection of intellectual property rights which we will be analyzing in details further on. This was the haskama which started a wave of haskamot for the works of different authors.

The Chatam Sofer[4] argues that although the Rama mentioned the concept of undue competition as the reason for the ban, the real reason is that if publishing was not controlled, many publishers would retire from this business since it would not be profitable and this would hurt the publishing of religious texts. The bans were thus, in his opinion, used as a protection for the study of Torah. We can see clearly from the Chatam Sofer’s argument that, although these haskamot were later used as a source of rights for intellectual property in Halacha, the intent of the Rabbis at this time was not to grant rights to authors but rather to encourage the publishing of religious texts. This, however, helped paint the historical background through which the rabbis started discussing the integration of intellectual property into halacha.

NOTE: The footnotes are a bit off (especially the "Supras") because I am splitting this essay in many parts, but I will list a full bibliography at the end of the paper.
[1] Rabbi Israel Shneider, “Jewish Law and Copyright” (1991) JHCS No. XXI.

[2] Rabbi Moshe Sofer, Responsa Chatam Sofer, Choshen Mishpat no. 41.

[3] Rabbi Moshe Isserles, Responsa, no. 10.

[4] Supra note 5 at Vol.6, no.57.

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Intellectual Property Law in Halacha

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.

Technological advancements have constantly challenged the relevance of legal systems to the modern world. With each technological advancement come new legal problems which had not been addressed by previous generations of legislators and legal scholars. For this reason, legal systems are in constant evolution. However, it is not always simple to bring in previously foreign concepts into an already existing legal system without sacrificing its coherence.


With the invention of the printing press, people now had the possibility of copying works in big numbers. This new reality introduced the question of intellectual property in all major legal system. Each legal system had to grapple with the difficulty of introducing this new and previously non existing legal concept. This was especially hard in areas governed by the codified system of Civil Law in which judges can only play a minor role to assist the evolution of the law and new concepts are only introduced through new legislation. If this reality proved difficult for such systems, then, a fortiori, one could expect it to be even more difficult for the normative system of Talmudic Law where the law is considered divine. Can a new concept be introduced into a divine set of rules? Is it possible for human beings to legislate a completely foreign concept into normative Talmudic law?

This work will deal primarily with the various attempts at introducing the concept of intellectual property within the framework of Talmudic Law. We will analyze the legal positions of different authorities on the subjects and the different approaches each took to integrate this subject into Talmudic Law as well as the practical differences which arise from their choice of approach.

Conflicting Perspectives on Legal Innovations

In order to properly understand the reasoning of the various scholars, we must first define their frame of mind properly participate in their thought process. There are two ways one can interpret the silence of Halacha to the concept of intellectual property. On the one hand, one can argue that the reason for this omission is simply the produce of the time period in which these issues arise. Since intellectual property was mostly irrelevant until the appearance of tools which facilitate copying, one can argue that it was simply not necessary for Halacha to discuss such issues before that time. According to this approach, it is quite possible that Talmudic Law would have integrated the concept of intellectual property if it was relevant in the time of the Talmud. On the other hand, some might argue that the urge to integrate intellectual property into Halacha is simply through the influence of other legal systems, based on non-Jewish values, and does not have its place in the normative system of Jewish Law. By omitting intellectual property, Halacha was purposely giving the message that such principle is not important in the eyes of Jewish Law.

Both of these approaches were taken by the various sages which grappled with the issue of intellectual property. The first approach was, for example, adopted by Rabbi Shaoul Netanzon in his responsa “Shoel U’Meshiv” in which he writes:

It is obvious that when an author prints a new book and merits that his words are accepted by the world, he has rights to it forever. Regardless, if you print something new or develop a new technique, someone else is not permitted to use it without permission. And it is known that Rabbi Abraham Jacob of Harobshob, who performed arithmetic with a machine all his life received compensation from the Kierow (government) in Warsaw. And our complete Torah should not be like their meaningless conversations, and this is a matter that the intellect rejects, and it is a regular occurrence that the printer of a composition retains the rights.[1]

These comments of Rabbi Shaoul Netanzon are not legal in nature but rather philosophical. Yet, they have strong legal ramifications. To him, it is unthinkable that Halacha would not be able to give the rights of intellectual property since this would be an immoral position and such a position cannot be espoused by Jewish Law. Therefore, his approach will lead him towards finding a way to coherently integrate this concept into the system of Jewish Law.

While most of the Jewish scholars have taken Rabbi Netanzon’s approach[2], some have approached the issue of intellectual property as a foreign concept which should not be integrated into Jewish Law. Rabbi Shmuel David Munk argued that intellectual property was nothing more than an error committed by the nations which came from the “politeness of the gentile nations”[3]. He saw no value in integrating such concepts in Jewish Law and even saw it as an attempt to change Jewish Law to match the warped moral values of the non-Jewish world. This approach is based on a strict interpretation of Jewish Law and a disdain for legal activism and evolution. This very conservative approach would lead those who espouse this view to refuse to introduce any new concept into the Halachic framework, including intellectual property.

Therefore, there are two distinct conceptual approaches to the modern question of intellectual property which have direct legal consequences. Rabbi Munk’s approach would lead to a hasty conclusion against the integration of intellectual property in Jewish Law. Since most scholars have followed Rabbi Netanzon’s approach, our analysis will be based on his approach.



[1] Rabbi Shaoul Neanzon, Shoel U’Meshiv, Volume 1, at Siman 40.

[2] Rabbi Chaim Navon, “Copyright Law”, online: VBM

[3] Rabbi Shmuel David Munk, Peat Sade’ha Responsa, at Siman 158.

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Modifying Halacha

Recently, there was a very disturbing article written in the Canadian Jewish News in response to an event that took place this month in Montreal. The Supreme Court of Quebec had a hearing about a case where a husband refused to issue his wife a Get, and the Supreme Court of Quebec ruled in favour of the wife and placed a fine on th husband for causing his now ex-wife much emotional damage. The article in the CJN stated that this event should prove to the Orthodox community that we have failed as a religion in regards to this law, and in response to this event we should modify/change the Jewish Law to subscribe to this ethical dilemna of the husband having autonomy when it comes to Jewish divorce.

While I'm not disagreeing with the fact that this Halacha could potentially cause emotional damage to a woman, the approach that was taken, that the Jewish Law must be changed is a completely non Jewish concept. The reason that the Jewish people continue to persevere and survive is due largely to the fact that we, as a people value Oral, Rabbinical and Traditional practices to the extent that there are many laws we do just because G-d told us to and we might not understand them at all. This is not to say that there is no solution to this dilemna, but the solution is definitely not to change the law, and we have definitely failed as a religion. In ancient times the Beit Din had ways of "forcing" the husband into giving a Get to his wife but in modern times when Beit Din has no power the solution might not be as easy, but it could be as simple as making pre-nuptual agreements. Every couple can write on their Ketubah that in the event of disagreement they will follow the suggestion of Beit Din which legally binds the husband to giving his wife a Get. The point I'm trying to get across is that sometimes there is no quick and easy fix to our religious problems but when we do have a problem, we can't view it as a failure of the religion but we must view it as a failure of our own to fully understand the religion.

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This is a Test

If you see this, there are either no posts yet in this category or you have gotten to the last post in the category.

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