Rabbi Shlomo Weissmann
Copyright and Halacha in a Digital World
A recent case decided by the Beth Din of America sheds light on how Jewish law addresses modern intellectual property disputes. In this article, we briefly summarize the history of halacha and copyright law before linking to the published version of the psak below.
Copyright and Halacha
Publishing works or spreading ideas without attribution raises significant ethical concerns. The Talmud cites Rabbi Chanina as stating that “whoever repeats a saying in the name of the person who first said it brings redemption to the world.”[1] This implies that presenting someone’s ideas without attribution is improper. Shach couches such behavior in terms of thievery, stating that inaccurately repeating an idea in your own name is akin to wrapping yourself in someone else’s garment.[2]
It may be wrong to take someone else’s idea, but there is no clear precedent in the Talmud and other early halachic sources for collecting damages for the theft of intellectual property. That should not be surprising, because until recently it was hard to conceive of scenarios where stealing an idea could cause real damage. At a time when manuscripts were reproduced by hand and technology developed at a snail’s pace, thoughts and writings were not easily monetizable.
The printing press was invented in 1440, making it possible to offer books to a mass market and sell them. In the early days of printing, there was nothing to stop a publisher from using another person’s work without permission and to make money from it. The need for legal protections around intellectual property became apparent almost immediately.
In the non-Jewish world, intellectual property protections historically took the form of royal privileges. These privileges, granted by the king, were often printed at the front of a book and explicitly prohibited the unauthorized reproduction of the work for a specified period.
How were seforim protected? They were often granted haskamos, the forerunner of rabbinic approbations that appear at the beginning of modern day seforim. Haskamos were issued by batei din and in many ways they functioned similarly to the royal privileges of the time, prohibiting reproduction of the work for a set period of time.
But haskamos were also different from royal privileges in a way that underscores halacha’s character as an apolitical legal system. In From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print, a fascinating exploration of the history of copyright law in halacha, Professor Neil Netanel observes that “privileges were in essence extralegal favors, an exercise of the sovereign’s personal prerogative to grant certain subjects special rights in derogation of generally applicable law.” In contrast, he writes, “rabbinic reprinting bans often purport to pronounce, affirm and enforce generally applicable Jewish law… Rabbinic printing bans are far from an exercise of personal prerogative. Rather, they require halakhic justification beyond the rabbis’ desire to reward a worthy publisher or author. Accordingly, the issuing rabbis have not uncommonly propounded legal rationales for granting, as well as delimiting, the reprinting ban.”[3]
Halacha conceived of a generally applicable legal framework for prohibiting the unauthorized reproduction of another person’s work from the time of the very earliest haskamos, dating back to the early 1500s. In contrast, no standardized intellectual property law for protecting authors’ rights existed in Europe until the enactment of the Statute of Anne in 1710.
In providing their halachic reasoning, the issuers of haskamos did not limit themselves to one particular doctrine or concept. Rather, they relied on a litany of halachic mechanisms that restrict the unfettered use of another person’s toil for commercial gain. These included the prohibition of snatching another person’s purchase opportunity (ani ha-mehapech be-charara)[4] and hasagas gvul, the notion that, in certain circumstances, an interloper is restrained from opening a business directly competitive with an established shop.[5] The development of a halacha of intellectual property was not limited to haskamos, and rabbinic authorities grappled with the issue in published responsa as well. In one celebrated case involving the unauthorized reproduction of the Maharam Padua’s edition of Rambam’s Mishna Torah, Rama ruled that the publication of that work violated the rules prohibiting hasagas gvul.[6] Later poskim would identify an actual right (zechus) in an intellectual work, and cast unauthorized reproduction of that work as a violation of that right.[7]
Still other authorities prohibited intellectual property infringement as a violation of dina de-malchusa dina (the law of the land is the law).[8] Dina de-malchusa dina as a halachic mechanism is especially suited to laws that would have been rabbinically legislated if the communal infrastructure to do so existed.[9] Intellectual property law fits neatly within that category because its aims are obvious and necessary. Not only do such laws deter unethical behavior, but they also incentivize creativity, innovation, and investment, which are integral to the functioning of a modern economy.
Stolen Slides
The facts in the anonymized and recently published version of a Beth Din of America psak involve an education consultant who had developed a slide deck for a presentation. A company that publishes educational materials posted the slides on its website without attribution or permission. The consultant brought a claim against the company for copyright infringement.
In finding that the company’s conduct was worthy of sanction, the psak cites some of the aforementioned sources that form the foundation of Jewish intellectual property law. But it leans most heavily on dina de-malchusa dina as a particularly fruitful legal principle for quantifying damages in the case. Because Jewish law lacks an indigenous framework for addressing damages in intellectual property cases, dayanim have no established guideposts for calculating liability and determining appropriate awards in such matters. The psak argues that dina de-malchusa dina empowers rabbinical courts to utilize statutory frameworks – including specific dollar amounts outlined in U.S. intellectual property statutes – for assessing damages. Batei din in Israel have reached similar conclusions in comparable copyright cases.[10] Applying the applicable statute to the facts of the case requires the dayanim to navigate issues such as how to count the number of infringements, whether the company’s actions were willful, and whether to award attorneys’ fees.
Click here to read the psak.
NOTES
[1] Megillah 15a.
[2] Shach, Yoreh Deah 242:43.
[3] From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print (Oxford University Press, 2016), 51-54.
[4] Kiddushin 59.
[5] Bava Basra 21.
[6] Teshuvas HaRama 10.
[7] Shu”t Shoel Umeshiv, Mahadurah 1, 1:44.
[8] Shu”t Beis Yitzchak, Yoreh Deah 2:75.
[9] See R Yosef Eliyahu Henkin, Kol Kisvei Ha-Rav Henkin, Siman 96:
דברי הש״ך שחולק על רמ״א בעניינים שלטובת המדינה, דלא אולינן בזה בתר דינא דמלכותא הוא במקום שיש לישראל קהילות מיוחדות עם טובי העיר נבחרים לתקן תקנות שלהם. אבל פה במדינה לא שייך זה, ופשוט דחקי המדינה הם צריכים להיות נר להדיינים של ישראל כשבא דין זה לפניהם.
[10] See Beit Din Eretz Chemda Jerusalem, File 71036 (September 2011).
