Product Law: Dina Demalchusa Dina in Intellectual Property

Adapted from the writings of Dayan Yitzhak Grossman

July 29, 2022

Our previous article discussed the fundamental dispute between R’ Yosef Shaul Natanson, who asserts that it is self-evident that authors and inventors have exclusive rights to their work, and R’ Yitzchak Shmelkes, who challenges this assumption as lacking a source. As noted there, Rav Shmelkes limits his rejection of such rights to a case where the inventor has no patent from the government granting him the exclusive right to his invention in perpetuity. Indeed, he proceeds to argue that halacha does consider governmental prohibitions against infringing upon intellectual property to be binding under the principle of dina demalchusa dina (the law of the government is the law). He explains that although (in his view^[1]) dina demalchusa dina does not generally apply to laws that contradict the Torah, where the prevailing custom follows the law, the law must be obeyed. Accordingly, since people (at least in his time) refrain from flouting intellectual property law out of fear of the government, one is obligated to obey the law.

Additionally, Rav Shmelkes says the category of “laws that contradict the Torah” to which dina demalchusa dina does not apply is limited to laws that deprive people of property that they already own (hefsed), but it does not extend to laws that merely deny people the opportunity to generate profit (menias harevach), and the Torah does require obedience to such laws. Rav Shmelkes proceeds to argue that this certainly applies to intellectual property law, which according to Rav Natanson is the law of the Torah as well, and he additionally invokes a doctrine of the Chasam Sofer that any governmental regulation for the benefit of the members of a particular profession must be obeyed.^[2],[3]

Rav Shmelkes’s teshuvah was addressed to R’ Shimon Sofer of Erlau, who had also addressed the question of the application of dina demalchusa dina to intellectual property law in the teshuvah he sent to Rav Shmelkes. Like Rav Shmelkes, Rav Sofer argues that although dina demalchusa dina does not generally apply to laws that contradict the Torah, it nevertheless does apply to intellectual property law. He offers an alternate reason to that of Rav Shmelkes for this, that when secular law mandates conduct that is inherently a moral imperative and thus included in the exhortation of ve’asisa hayashar vehatov (you shall do what is straight and good),^[4] then despite the fact that the Torah does not strictly mandate such conduct, dina demalchusa dina nevertheless applies to such laws. Since seichel hayashar dictates that one who toils to innovate something^[5] is entitled to the benefits of his labor—and the proof is that the law considers this a fundamental matter of fairness, which it codifies as law—“it is obvious that dina demalchusa applies here.”^[6] R’ Moshe Zev Zorger articulates a similar position, that dina demalchusa dina does apply to laws that “the spirit of the Torah and the spirit of the Sages” approve of, despite the fact that the Torah itself does not consider the conduct mandated by the law to be obligatory and enforceable, and he explains that intellectual property law is certainly in this category for a variety of reasons.^[7]

Other authorities as well accept, for various reasons, the basic principle that dina demalchusa dina applies to intellectual property law,^[8] and although there is a dissenting view,^[9] it seems to be a minority opinion.

Another important early discussion of the right of an innovator to his innovation appears in the work Amudei Aish of R’ Avraham Shmuel Rabinowitz of Eyshishok, regarding the case of someone who expended a great deal of money in the study of dyeing techniques and recorded his expensively acquired knowledge in a book. Someone stole the book, copied it, and studied its contents, then returned the original to its owner. The owner sued the thief on the grounds that he had spent a great deal of money in the acquisition of the information in the book and that the thief was improperly interfering with his business activities (yored le’umanuso), and he additionally demanded that the copy be turned over to him.

Rav Rabinowitz’s correspondent, R’ Shimon of Ofina, tentatively suggests that the thief might be obligated to return the copy on the grounds that the plaintiff has an ownership right in the information in question. (This is apparently similar to the position of Rav Natanson discussed in the previous article.)

Rav Rabinowitz himself rejects this approach, and he begins his analysis by insisting that the halachos of theft require only the return of the stolen property, but not the return of any copy made of it, nor the payment of any compensation for the use of the stolen property. Subsequently, however, he considers the possibility of an obligation to compensate the author of the book under the doctrine of neheneh (benefiting)—similar to the legal concept of unjust enrichment.^[10]

Note that there is a great deal of halachic literature on the general topic of intellectual property, mostly regarding authors and their work. Our articles have merely provided a limited introduction to some aspects of this literature, focusing on inventors and inventions.

[1]This assumption is actually the subject of considerable dispute among the Acharonim; see Rama C.M.  73:14; Shach ibid. s.k. 39 (and siman 356 s.k. 10); Chazon Ish C.M. likutim siman 16 os 1 (and cf. Bava Kama siman 23 os 2 s.v. Vechol zeh); Amud Hayemini siman 8 from os 7 (p. 45); Shu”t Maharam Brisk cheilek 1 siman 85 p. 84b and siman 108 os 2; Shu”t Mishnas R’ Aharon C.M. siman 71 s.v. Vehinei bedin davar ha’avud; Shu”t Minchas Asher cheilek 2 siman 121.

[2]Shu”t Chasam Sofer C.M. siman 44 s.v. Ne’ayel leha didan.

[3]Shu”t Bais Yitzchak Y.D. cheilek 2 siman 75 os 5.

[4]Devarim 6:18.

[5]Rav Sofer is referring to Torah novellae, but his reasoning would seem to apply equally to other forms of innovation.

[6]Hisorerus Teshuvah cheilek 1 siman 232.

[7]Shu”t Vayashev Moshe cheilek 1 siman 2 os 12.

[8]Shu”t Sha’arei Ezra cheilek 2 end of siman 147 s.v. Od yesh ladun mitzad dina demalchusa dina (p. 390).

Shu”t Shem Aryeh C.M. siman 20 os 6 applies dina demalchusa dina to government grants of exclusive printing rights, although he is discussing a scenario where the government charged the printers for these rights, so the law in question is similar to taxation, an undisputed legitimate prerogative of government. Cf. the analyses of the Shem Aryeh’s position in Shu”t Divrei Malkiel cheilek 3 end of siman 157 s.v. Ve’af shemitzad pisuk chiyusa; Shu”t Be’er Sarim cheilek 6 siman 80 os 6, and cf. R’ Nir Aviv, Dina Demalchusa Dina Bizchuyos Yotzrim.

[9]Shu”t Vaya’an Dovid cheilek 2 C.M. siman 226 os 6.

[10]Shu”t Amudei Aish pp. 132-34. Cf. Shu”t Divrei Malkiel cheilek 3 siman 157.