Rav Yosef Dovid Josilowsky, Dayan at the Bais HaVaad Question: I am starting a lending…
Rabbi Chaim Weg
Case: Reuven was listening to the most recent popular Jewish song that had just come out, when his friend Shimon met him and heard the song for the first time. Shimon enjoyed the song very much, so Reuven offered to upload it to Shimon’s MP3 player.
Question: If Shimon was not prepared to pay to purchase the song in any case, is it permitted to copy it for him? After all, he is not actually taking anything tangible from anyone.
Answer: Since the invention of the printing press, great Torah authorities (and non-Jewish experts as well) have grappled with the status of intellectual property. Does the one who writes and prints a book have halachic rights to it? Is reprinting the sefer considered stealing? Or is the halachic notion of gezel only applicable to tangible items, but not to intellectual property? This issue relates to many situations, including reprinting a sefer, using a song composed by someone else, and using computer programs created by others.
The consensus of poskim is that one is not allowed to take intellectual property of others without permission, but they differ as to the reason behind it. Rav Moshe Feinstein holds that such a practice constitutes a form of gezel. The Netziv (in Responsa Meshiv Davar) agrees, explaining that one can own non-tangible entities as well.
According to the Chasam Sofer, it seems the issue is one of taking someone else’s livelihood (“yoreid l’umnaso shel chaveiro”), which relates more to causing damage to another (mazik) than to stealing. Some poskim compare using a song without purchasing it to a sirsur, or real estate agent, who is paid for the knowledge he offers concerning which houses are available. Others argue that it is forbidden due to copyright laws, which are subject to the halacha of dina d’malchusa dina (secular law is considered binding by halacha).
Thus, as mentioned, it is accepted that copying music and other such activities are generally forbidden without obtaining explicit permission from the owner. However, depending upon which approach is taken, there may be slight variations in halacha in certain cases, where some of the reasons may yield more lenient approaches.
Question: It seems that the common denominator among the various rationales for forbidding copying songs is that one is causing a loss to the owner. However, in the above scenario, Shimon claims he would not have purchased the song anyway, meaning that no loss was caused. Is copying a song still forbidden in this case?
Answer: According to the approach that using such property constitutes gezel, copying the song would still be considered theft regardless of whether he would have purchased the song otherwise. According to the approach that intellectual property is comparable to a real estate agent (sirsur), one would still owe the owner money for the knowledge or rights to listen to the song. According to the approach of mazik, though, perhaps it would be permitted to have the song copied to one’s MP3 player if he would definitely not purchase it otherwise.
Rav Shmuel Vozner writes in Responsa Shevet HaLevi that one exception to this rule is that it is permitted to photocopy one page of a larger sefer in order for a chavrusa pair to study it together if they only have one copy of the sefer. In Rav Vozner’s opinion, none of the reasons apply to copying one page alone .