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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The Religious View of the Secular State of Israel - Part 5

This article has been written by Rav Ari Shvat (Chwat), Rosh Midreshet Tal Orot in Michlelet Orot, Elkana. He has graciously offered to share his wisdom with the readers of Tzipiyah.com, and given me a few, very powerful and all very relevant, articles to share with you. This is the fifth part of the second article. Enjoy!

6. Sovereignty in the Land of Israel is a Mitzva

Up to this point, we have seen that the State of Israel, even if secular, is important as a means to guarantee both our physical and spiritual existence. On a completely different plane, we learn that there is an obligation from the Torah that the Land of Israel be under Jewish rule. In other words, the State of Israel is an ideal in of itself, not just a necessary median to alleviate the difficulties of anti-Semitism and assimilation. As the Ramban says:

“We are commanded to inherit the Land that Hashem gave to our forefathers, to Avraham, Yitzchak and Ya’acov, and not to abandon it in the hands of the other nations or to desolation. And He said to them: ‘and you should inherit the Land and settle in it, because I have given you the Land to inherit.'[1]… This is what our rabbis call milchemet… chova (an obligatory war) as the war of Yehoshua to conquer (Israel)… understand, that this mitzvah is to conquer ...this is a positive mitzva for every generation”.[2]

There are two components to this mitzva:

1. “and you should inherit”- “and not to abandon it in the hands of the other nations”, "conquer".

2. “and settle in it” - “(not to abandon it…) to desolation”.

In other words, just settling the Land of Israel is not enough, it also needs to be under Jewish rule. Similarly, Rav Yisrael Yehoshua Trunk of Kutna wrote a century ago:

“The main part of the mitzva is the inheriting and settling, as one does in his own property, to conquer the land of Israel so that it will be under our sovereignty, not the pointless arrival of today (written in 1891/ תרנ"א, when the land was under Turkish rule, A.C.)”.[3]

“All of the poskim, rishonim and achronim” (in the words of the Pitchei Teshuva)[4] maintain this mitzva of living in Israel like the Ramban. Even Rashi, who explains in his commentary on the Torah that “and settle in it” is only a promise, holds that the conquering is a mitzva,[5] as is also explicit in his commentary to the g'mara, where he defines mitzvat "yishuv Eretz Yisrael, to chase out the gentiles and settle Jews there".[6]

Even Rav Yitzchak DeLeon, who is famous for his lone (and rejected)[7] opinion that during the exile there is no mitzvah to live in Israel, would admit that in our time, with the advent of the State of Israel, it is obligatory, once again. In his opinion the Rambam does not count this as one of the 613 mitzvot because it does not apply to all the generations, and will only apply “when we will not be enslaved/subject to the other nations”.[8] If so, today, when there is once again Jewish sovereignty, the mitzva applies as it did in the period of the Tanach, even according to R. Yitzchak DeLeon.[9]
7. Independence as a Kiddush Hashem

In addition to the "technical" problems of assimilation and anti-Semitism, being subservient to the gentiles poses a theological problem, as well. We find written regarding the period of exile, "And there you will serve gods made by hand (man)", is translated by Onkelus, "And there you will serve those who serve idols".[10] The idea is clearly that if we serve those who serve other gods, we indirectly are serving those idols, strengthening the belief in those religions to be thought superior to the G-d of Israel, chalila. As the representatives of the G-d of Israel in the world,[11] the international status of Israel is a reflection upon Him, for better or worse. Not only do our individual or national actions make a Kiddush Hashem (sanctification of G-d's Name) or Chilul (desecration) Hashem in the world, but our status as seen in the eyes of the gentiles reflects and influences how they view Judaism and the "Jewish" G-d.

We find throughout the Tanach, that when Israel loses a war, the refrain of the gentiles was: "Hey Jew! Where is your G-d?![12] When the Babylonians defeated us and send us to exile, it is referred to as a Chilul Hashem, for the gentiles taunt us. "ויחללו את שם קדשי באמור להם עם ה' אלה ומארצו יצאו!", "and they defiled My Name when they are told: 'This is G-d's nation? And they were exiled from their Land!'"[13] The commentaries[14] explain: "They (Israel) humiliated My Honor. How? When their enemies said about us: their G-d wasn't capable of saving neither His Nation nor His Land!" In other words, "Our god is stronger than the Jewish G-d, for we won the war!"

The same is true regarding more modern religions, as well. Before the founding of the State of Israel, Christians often "proved" their religion based upon the doctrine of the "wandering Jew", never to return to the Holy Land, as punishment, in their opinion, for our rejection of their god/messiah. Islam, as well, likes to see their successful military campaigns as proof that "god is Muslim". Contrarily, the formidable and independent State of Israel and Israeli army's trouncing our Islamic enemies, serve as theologically problematic, to say the least, for our "monotheistic competitors".

In a similar vein, the g'mara explains the reason we don't say hallel on Purim.[15] Despite the fact that Megilat Esther concludes with the Jews enjoying even superior status in Persia,[16] nevertheless, as long as we are under foreign rule, and “we are servants of Achashverosh”, we are unable praise Hashem as if we are “servants of Hashem” (the opening phrase of hallel). Only one who has no other master, no division of loyalty between his nation and his G-d (note the case of Jonathan Pollard), can serve Hashem wholeheartedly. “Whoever lives in Eretz Yisrael is as if he has a G-d, and whoever lives in chutz laAretz, is as if he has no G-d, as it is written '…to give you the Land of Israel, to be your G-d".[17]

In Israel, our loyalty to the nation of Israel, not only doesn't contradict our faithfulness to Hashem, but on the contrary, expresses it. For example, one who gives his life for the nation is considered as if he was killed על קידוש ה', in the sanctification of G-d's Name, for they are one and the same. "ישראל ואורייתא וקודשא בריך הוא, חדש הוא", "Israel, the Torah and G-d are one and the same".[18] This parallel is even found in the Tanach, "And you shall serve Hashem your G-d and Israel His nation…"[19] Although this may sound at first blasphemous, upon understanding that Jewish nationalism and Jewish religion are intertwined, it is logical.

As we have seen, even if not faced with the dilemma of dual loyalty, the ideal of serving G-d wholeheartedly, plus the ideal of Kiddush Hashem, the positive reflection upon the G-d of Israel, are other advantages of having a strong and internationally respected independent Jewish State, albeit a non-ideal one.

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[1] Bamidbar 33, 53-54.

[2] Ramban, Additions to Sefer HaMitzvot, Aseh 4.

[3] Resp. Yeshuat Malko, Y. D. 66.

[4] Pitchei T'shuva, E. H. 75, 6. This is also the summary of the Sdei Chemed , vol. 9, pp. 182-183, in the 1967/5727 edition.

[5] Rashi on Bamidbar 33, 53.

[6] Rashi on Gittin 8b, see also on Y'vamot 64a. From his commentary on these g'marot, which are a more reliable halachic source than his commentary on the Torah, it is explicit that Rashi holds there to be an obligation to live in the Land, and a sin to live in chutz LaAretz.

[7] See footnote 50.

[8] Megilat Esther, commentary on Sefer HaMitzvot of the Rambam, additions of the Ramban, Mitzvat Aseh 4.

[9] The Megilat Esther mentions three phrases describing the period when the mitzvah will apply again as follows: "this mitzvah does not apply until the arrival of mashiach"; "when we won't be enslaved to the other nations"; "particularly in the time when the temple exists". It is not clear whether the Megilat Esther means that we explicitly need all three stages – independence, mashiach and the building of the temple –or, more likely (as is more common), he simply uses all of these expressions interchangeably in describing ימות המשיח, "the messianic period", which is already here (see the article "Atchalta DeGe'ula- Not Just Another False Messiah"). It is also more logical that R. DeLeon does not continue to prohibit mass aliya before the fulfillment of all three phrases, because the building of the temple, according to the Rambam (whose opinion R. DeLeon is explaining), is an obligation upon man to build. Accordingly, if we have independence, this is already considered "the end of days" (as we cited in the Rambam's opinion above, see footnote 35) and consequently, the mitzva of living in and conquering Israel is once again obligatory. Even though the opinion of the Megilat Esther, who disagrees with the Ramban, is explicitly rejected by the poskim (Shulchan Aruch, E.H. 75, 3; O. Ch. 248, 4; see footnote 50, and Kol HaTor, p. 534, who was angered greatly by anyone who thought to exempt himself from aliya because of this lone and rejected opinion, even calling them "m'raglim"!), we brought his opinion because of the irony, that even he, who is usually cited as the source of the anti-Zionists, today would apparently obligate aliya en masse to Israel.

[10] Targum Onkelus, Dvarim 4, 28.

[11] For example: T'hillim 148, 13, "and He raised the horn for His Nation, for Bnei Yisrael, His intimate Nation"; Dvarim 14, 1, "You are sons to Hashem your G-d"; ibid, 7, 6, and 14, 2, "G-d chose you , from among all the nations, to be His treasured Nation", Y'shayahu 43, 21, "This Nation I created for Myself, they will tell of My praise".

[12] For example, T'hilim 42, 4, "My tears were (constant) like bread day and night, when they taunt me all day, "Where is your G-d?"; ibid 137, 3, "On the shores of Babylon… our captors asked us mockingly to sing, "Sing us some of your songs from Zion; ibid, 42, 11, "… my oppressors taunted me, "where is your G-d?!"

[13] Y'chezkel 36, 20.

[14] Ibid, Rashi, Radak, Metzudot, Malbim. See the article on "The Exile-Mentality and National Pride", where we expounded upon this cardinal point.



[15] Megila 14a.

[16] Esther 8, 17, "… and many of the people converted to Judaism, for the fear of the Jews fell upon them".

[17] K'tuvot 110b based upon Vayikra 25, 38.

[18] Zohar, cited below in footnote 81. T'hilim 79; Baba Batra 10b. Even one who was passive while murdered by gentiles is considered slain על קידוש ה', Resp. Chatam Sofer, Y.D. 333; R. A. Rakeffet-Rothkoff, The 'Kedoshim' Status of the Holocaust Victims", Gesher 9 (5745), pp. 99-108.

[19] Divrei HaYamim II, 35, 3.

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Parshas Re'eh: Giving to Man, Giving to God

This week's parshah basically consists of an array of commandments. The parshah starts off with negative commandments; divine commands concerning actions we must stay away from. The bulk of these commandments relate primarily to idolatry, and to staying away from forbidden foods. The next half of the parshah then deals with positive commandments; divine commands concerning actions we must cling to in order to serve God. These include tithes, the sabbatical year etc.

In this second half of the parshah lies an important question whose answer contains an important value in Jewish practice.

These commandments (of this second half) begin with our obligation to bring certain gifts towards a sacred purpose. The first commandment is that of the second tithe: Basically, we are commanded to separate 10 percent of all our crops and eat them by the Holy Temple in Jerusalem (See 14:22-29).

The Torah then goes on to detail commandments directed towards what appears to be “less” of a sacred purpose. Instead of commandments that are directed "Before God" (14:23 and 26) like the tithe, these next commandments are directed towards our fellow man. For instance, the first commandment is that every 3 years, instead of using 10% of your earnings to be eaten in Jerusalem, they are given to the poor and needy. The next law is that of the Sabbatical year, which speaks of the obligation to erase any debts between a borrower and a lender. The subsequent law concerns the freeing of a Jewish slave. At the end of the slave's term, we are not allowed to just let him free "empty handed"; we have to provide him with a means of support, and give him money or part of your flock. So in essence, the Torah starts off by depicting commandments between man and God, and then evolves into a discussion concerning commandments between man and man.

But then a very strange thing occurs! The next law reverts back to a donation directed towards God! It's a commandment that requires us to donate every firstborn animal of our flock to the Temple. But this seems completely out of order because we have already discussed the gifts that are donated towards a sacred purpose (the tithe eaten in Jerusalem) and have moved onto the gifts directed towards man! Why go back? What is the meaning of this order?

The truth is, it's not really out of order. Rather, these set of laws consist of man-to-man commandments in the middle, flanked between two man-to-God commandments at the beginning and end. The reason for this is to express that the commandments directed toward our fellow man are actually at the same sacred level as the commandments directed towards God! On a simple level, this is true because since God Himself issued these man-to-man commandments, then by fulfilling them we are fulfilling God's will. But this idea goes deeper.

Our Rabbis tell us that God created "A world of kindness". The meaning behind this is as follows: If God is complete in every which way and lacks nothing, what was the reason for creating the world? If He has everything, what benefit can the world bring to Him!? Our sages explain that since God is the infinite and ultimate good, he created a world in which he can share this good with others. Therefore when we give from ourselves to our fellow man and are involved in loving and caring relationships with everyone, we are in fact emulating God, the ultimate giver! Therefore, when we give to man, we "give to God" by emulating His ways.

The world therefore can only reach its perfection when there is boundless love among mankind because it is in this state that we are closest to emulating God. It is this very state that we hope to find ourselves in the era of Mashiach (Messiah). In our daily prayers, at the end of the first blessing of the Amidah (the silent prayer), we say "U'Meivi Goel Livnei Bneihem Lmaan Shmo B'Ahava". This sentence can be translated in two ways, in which I think are in fact in tandem with one another.
The first way this sentence is described is that "(God) brings a redeemer … with love". Meaning, that no matter how much trials and tribulations we must go through in order to reach the final redemption, we must always realize that God brings along that path with boundless love.

The second way to translate the sentence is "(God) brings a redeemer … in love". This means, that God will only bring the final redemption in a status of love. God will only bring the era of the Mashiach when mankind is in a state of love with one another.

These two translations are actually one and the same, and it can be said in one simple verse: When we love each other God loves us back. God relates to us in a loving manner when we make sure to treat one another in the same degree of love as well.

May we merit to have loving relationships with all those around us, and may we be showered with God's blessings of love as well.


Good Shabbos,

NZL

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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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Announcement - Big Changes Coming Up!

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

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