For some time, the debate about downloading digital music and movie files has been raging in the legal community, and also among social/business ethicists. According to Jewish values - once a digital file is shared and is online - is it public property? Or not? If I buy a file (music or video), can I give it away to others?
This question is welcome and important for a number of reasons.Most of all this question (and others like it) are a sign that we are turning to Jewish teachings for guidance to “ … do the right thing” – or in the words of the Torah:“ … la’asot hatov vehayashar be’eynai H’” (“… to do that which is good and upright in the sight of God”-- Deut. 12; 28).
There are nuances in the question, and I will turn to those in a moment.It is worth taking a moment to note that Jewish tradition has for centuries recognized the concept of intellectual property, and that the owner of intellectual property has many of the same rights and privileges as the owner of more tangible items.It is forbidden to steal from another person (or entity) whether the stolen property is a book, a DVD, a concept or an electronic copy.
The Biblical prohibition against hassagat g’vul - moving the markers that define the boundaries of real estate has been deemed to apply to intellectual property – so that reproducing a “copyright” text is judged to be “hassagat g’vul” .There is also the concept of gneivat da’at – stealing intellectual work.
I am looking at the title page of a recently republished siddur (prayer book), and it has the following warning:“… considerable research and expense has gone into the creation of this siddur, and unauthorized copying may be considered gneivat da’at as well as a breach of copyright law …”
The question asks if once a digital file is “ … shared and online – is it public property?”
The answer, it seems to me, depends on the intention of the owner.If I have property no longer useful to me, I might put it on the street; it is understood in many urban areas that a books on the sidewalk are “shared” - there for anyone to take.However if I have many books on my shelf at home – I might be willing to lend them to a friend – but they are by no means there for anyone to walk in and take away.
Also – while I might be permitted to copy a few pages of a book that I own for my own private reference – I certainly cannot copy a book that I own – or even a chapter, and give that copy to a friend.That is prohibited by copyright and hassagat gvul – but I can lend the original book, my property, as I wish.
So – if you own an electronic file you can give it away or sell it – provided that you destroy your own copy.Regard an electronic file as if it were a tangible item and think about the original intent of the owner of the property.
It could be that a band, or an author, wants a piece of their work to receive the widest possible circulation and they actively seek to have the file distributed widely.By all means share such works – they are like “books on the sidewalk” – or pamphlets in the library, freely available to all.Youtube is a great example of this in practice.
Artists, writers, musicians and scholars work hard to create items that are of great value to all humanity.The world will be enriched if those who work in the “intangible” realm can benefit reasonably from that which they create.
The question may be answered in two ways, with one answer being ethically superior to the other.
I. One can argue that Jewish law does not recognize intellectual property as a legal category. And if there is no legal category called “intellectual property” to be protected by statute or rule, the intellectual rights to digital data, be it script, video or music, then the digital data is free for all comers, takers, and viewers. Therefore, since there is no formal restriction of harvesting accessible intellectual property on the record, there would be no Jewish value violated by benefitting from this intellectual property, even against the expressed will of its creators.
II. However, Jewish law, like every legal order, applies its ethos and ethic when considering how to rule when clear statutory rulings are unavailable.
a. Ashkenazi rabbis [Yam shel Shelomo to bBaba Qamma 5:36 and Mishnah Berura 228:19, harking back to the Rabia] spoke of trade practices, Minhag ha-Soharim, which are binding customs stemming from the days of the guilds.
b. Civil law is religiously binding on Jews, as Samuel the Amora taught, the “the [civil] law of [Jewry’s exiled] land is [religiously binding] law. [bNedarim 28a, bBaba Qamma 113a, bGittin 10b] Thus, if there are civil laws that outlaw theft of intellectual property,then a Jew is morally bound to observe that rule.
c. Rashi to bBaba Batra 11a, bHullin 94a, Nahmanides, supra., and Tosafot to bBatra 8a, s.v.yativ R. Yosef invent a category called genevat da’at, misleading others and literally, “stealing knowledge.” While it may be legitimately argued that the Oral Torah records no such norm, avoiding purloining intellectual propiety may be an act of extra-legal piety. However, lacking an explicit norm in the Talmud, even Rashi’s charisma lacks the valence as a commentator to initiate a binding law on and over all Israel.
d. Deuteronomy 6:18 provides a formulary rule of thumb, explicated correctly by Nahmanides, supra.,that we are to choose our acts to “do what is right and good,” i.e., would God be pleased with us when we claim, “we found no statutory restriction, the feelings of peers and society do not count, and I want what I want when I want it.” It would be incumbent upon the claimant who contends that intellectual property is fair game to explain why such rude selfishness is “right and good.”
You’ve asked two questions here, and the answer to each seems to be governed by the principle of dina de-malkhuta dina, the law of the land is the law, which Rabbi Yuter cites in his answer at IIb. As Jews, we would additionally take into account a general sense of what is the right thing to do, as Rabbi Yuter also points out.
I am not a lawyer, but my husband is, and he’s been kind enough to give us a brief primer on copyright law, which is the law of the land in this case.
First, you ask whether a digital file is “public property” once it is shared and online. The fact that something is online never automatically indicates that it is free for the taking. If a file contains a work that is in the public domain, and there is no copyright holder, it can be freely shared, copied, etc. The website librivox.org offers an example of a situation where thousands of audio files of literary works in the public domain are free for the sharing, copying, and taking.
On the other hand, if an image, recording, or written work is protected by copyright, the wishes of the copyright owner would prevail. A copyright holder who posts something online might indicate that the file is available for copying and sharing freely, or might indicate that it is intended for listening/viewing/enjoying only at the location where it is posted.
Second, you ask whether you can give a file to others once you have bought it. The legal answer is yes, just as if you buy an actual cd or dvd or a bound book on paper you may give it as a gift. What you may not do with a digital file (as with an actual cd or dvd or bound book) is make a copy of it to keep it for yourself and give it as a gift.
That’s the civil law. Returning to the realm of Jewish values, I would emphasize that ultimately, as Jews, we are absolutely obligated to honor the intent of the copyright holder. These works are the fruits of the artist’s labor, and often represent her or his livelihood. Copying online or digital files without permission is stealing.
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