More and more often we see the notice, “All rights reserved: Copying prohibited by halakha and law,” on audio-cassettes, books and compact disks. What is the halakhic basis for such a statement and how far reaching is halakhic copyright law? The technical ease with which books, software, and audiocassettes can now be almost identically reproduced drastically sharpens the practical side of these questions.

This presentation attempts to outline the basic framework of the halakhic approach to copyright; for practical guidance please consult a qualified halakhic authority.

Four models of copyright protection appear in the sources:
1. Hasagat gevul -- unfair competition:
2. Haskamot -- approbations;
3. Dina d’malkhuta dina -- secular law;
4. Shiur b’kinyan -- witholding the right to copy.

1. Hasagat gevul -- unfair competition:
Talmudic sources relating to competition are quoted by the halakhic authorities as prooftexts for copyright issues, especially the fear that someone else will copy an author or publisher’s work and start marketing it, depriving the original producer or publisher of the profits. One source (on Bava Batra 21b) forbids other fishermen from trapping a fish that a fisherman has staked out and is trying to attract to his own net:

“[Other] fishermen’s nets should be kept away from a fish [that one fisherman is trying to attract to his net]. [They should keep their nets] the distance that a fish swims. How far is that? Rabba son of Rav Huna says: A parsa.” This and similar sources were applied by the Chatam Sofer (Responsa, Choshen Mishpat #79) to publishing. The original publisher is like the first fisherman doing all the tedious work involved in authoring a work and/or taking it to press and expecting thereby to profit from his efforts and heavy financial investment. Another who copies it and sells the product himself is like the other fishermen who are prohibited to take away the results of the first fisherman’s labors.

2. Haskamot -- approbations;
Historically, the most common method of insuring copyright has been for publishers of a book to procure a letter of approbation from widely respected rabbinic authorities. The rabbi would write a letter that not only extolls the virtues of the work (either a new book or a printing of an old manuscript) but prohibits the reprinting of the book for an extended period of time. The publishers are thus given enough time to safely print and reprint their book in order to cover their costs and hopefully profit.

The mechanism of the prohibition is a written excommunication ban applied to anyone who infringes on the publisher’s copyright. Here is a common example of a haskama (given by Rav Yosef Shmuel of Krakow, Rav of Frankfurt on Rav Yosef Bachrach’s Chavot Yair):

“The high costs of printing are well known, and the Rav -- the author has invested a great amount of effort. If by some small chance a man (whoever he be) who did not put in the effort would like to take his portion of it and print it himself, the Rav will incur a great loss. Is this the reward of of his Torah? Therefore we decree, invoking the ban of excommunication for the transgressor, that no man should lift up his hands to reprint this book for a period of ten years after this printing. This applies whether the transgressor does it himself, through another, or through any other means. It will be pleasant for those who listen to our words. Writing for the honor of Torah and its students . . . Yosef Shmuel of Krakow . . . .”

The Chatam Sofer (in the responsum quoted above) dates the spread of this custom to an episode in the 1600s that become the subject of a famous responsum by Rav Moshe Isserlis, the Rema. The Maharam Padua in Italy sifted through manuscripts of the Rambam’s Mishneh Torah and arrived at an edition that was free of textual errors. There were two non-Jewish printers in his city, and he hired one of them to publish his Rambam. The other was jealous and printed his own competing Rambam. The Rema (in a responsum that also formulates his position on the seven Noachide laws) ruled that Jews were forbidden to buy the competing Rambam in order to protect the Maharam Padua from the illegal copyright infraction of the competing publisher.

This became the accepted way of protecting copyright in the world of Jewish publishing. The Chatam Sofer defended the efficacy of this method -- a ban pronounced in print is binding, he said, and it strengthens the existing transgression of depriving another of their livelihood. Most of the time the ban was pronounced against publishers but occassionally, as in the Rema’s case, also against purchasers.

3. Dina d’malkhuta dina -- secular law;
Copyright laws protecting intellectual property have become part of most modern legal systems. These seem to also be binding halakhically, based on a rule formulated in the talmud (Bava Kamma 113a, among other places) by the amora Shmuel: “Dina d’malkhuta dina: the law of the government is binding law.”

Applying this rule is dependent on expanding the scope of dina d’malkhuta dina outside of the realm of taxation, against an approach held by some of the rishonim. The Shach (Choshen Mishpat 73:39) proves that the weight of opinion is against the limiting approach. He strongly assumes another limitation -- that secular civil law is only binding when it does not contradict Torah law. Following the Shach’s approach here would require determining whether there are any points of divergence between halakha and, l’havdil, secular copyright law.

[In general, the interface between halakha and secular law is a complex issue, intensified in the modern period by radically increased Jewish involvement -- also among halakhically observant Jews -- in almost all realms of societal, cultural and business life in the non-Jewish world. The issue is further comopunded in modern day Israel where a Jewish government works with a legal system not based on halahkha except in certain restricted areas. For a collection of resources on the interaction between halahka and secular law, see “Jewish Law: Examining Halakha, Jewish Issues and Secular Law” at http://www.jlaw.com.]

4. Shiur b’kinyan -- witholding the right to copy.
Another halakhic mechanism for protecting copyright has been suggested by Rav Zalman Nechemia Goldberg shlita of the Jerusalem Rabbinical Court. The producer of a work, when he sells his product, restricts the acquisition of the purchaser with regards to reproducing the work. He sells everything about the book, tape, or software except for the right to copy it. If the purchaser then copies the work he has stolen it, for he does not own rights to copy it; he has illegally used something that does not belong to him.

The talmudic precedent appears on Bava Metzia 78b: “Rabbi Shimon son of Elazar says in the name of Rabbi Meir: If one gives a coin to a poor man in order to buy a cloak he cannot buy a tallit, because he goes against the intention of the owner (giver) . . . . and anyone who goes against the intention of the owner is called a thief.”

Calling the poor man a thief implies that he took something owned by the giver unlawfully. Rav Zalman Nechemia explains that the owner does not give over all of the coin to the poor man. He holds back for himself the right to restrict the poor man from buying anything other than a cloak. When the poor man buys a tallit he unlawfully uses the giver’s coin. Similarly, the publisher of a book or producer of a cassette or software can expressly hold back the right to copy from the purchaser.

Sources:
Hebrew:
-- Teshuvot Rema #10
-- Teshuvot Chatam Sofer Choshen Mishpat #79
-- Rav Zalman Nechemia Goldberg, “Copying a Cassette Without the Owner’s Permission,” Techumin 6, pp. 185-207

English:
-- Rabbi Israel Schneider, “Jewish Law and Copyright,” Journal of Halakha and Contemporary Society, available at http://www.jlaw.com/Articles/copyright1.html
-- Rabbi J. David Bleich, “Copyright,” in Contemporary Halakhic Problems pp. 121-130.

prepared by R. Eliezer Kwass