This post continues the weekly series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.
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Question: I know many friends—honest, God-fearing people—who have no problem “stealing” entertainment in the form of illegal downloads. Why have we let our attitude toward this kind of theft become so permissive? Can we stop it? Should we? Or, as many people claim, since they wouldn’t have paid for the show/music in the first place, it’s not like anyone lost money on their download. What is right? What is the Jewish view?
The issue of intellectual property, of which this is a case, is one that has challenged every legal system. How do you assign proprietary rights to an intangible? This is clearly also an issue within Jewish Law, however the nature of Halacha is such that it need not approach this issue solely from a perspective of property. The questioner asks whether downloading is a form of stealing or theft which, to answer, would first demand a determination of a property right in the intangible download. The issue within the realm of Halacha, though, is much broader; the question being whether it is right or wrong – and this answer may have little to do with the establishment of proprietary rights.
It should not be surprising, as such, to find that over the centuries there have been many variant approaches undertaken to answer these types of questions, namely to what extent, if any, can someone benefit, without pay, from another person’s labours or financial outlay. This is essentially what is happening when one downloads a form of entertainment, one is benefitting from someone else’s efforts. The challenge, though, is that one is still not causing the other to actually expend more time, energy or money by downloading an item. In addition there may be other policy or ethical reasons for allowing this download. It is with a recognition of all these and other factors that Halachists have attempted to approach these questions.
There is a key shift, however, that occurs with the formulation of the issue with Halacha. In the language of Halacha, we would say that the prime focus of the issue becomes no longer one of cheftza, object, but gavra, person. What this means is that we are no longer focusing on the object – i.e. the download and its ownership – but the people involved and whether it is proper behaviour to download items without paying for them. The answer to this question may have little or nothing to do with actual ownership of the object but simply emerge from an ethical view of the behaviour itself. Is downloading objectionable behaviour?
This brings us to a key concept in the Halacha’s determination of the ethics of financial interaction. What is asked are the questions of whether one has benefitted (nehneh) and/or whether one has lost something including an opportunity cost (chaseir). The underlying broad values are that one should pay for a benefit and one should cover the cost of a loss that he/she has imposed upon another. Of course, the Halacha also recognizes that there are numerous details and further concerns that have to be considered and evaluated before these broad principles can be applied to any specific case. For example, one can only be held liable for a loss if one is responsible for causing it – what makes someone responsible? In many ways, Jewish financial law is an investigation of the many such details.
It would be first important, though, to understand the essential distinction between nehneh and chaseir in their legal ramifications. Mishna Baba Kamma 2:2 presents a good example. The case involves an animal eating the produce of a merchant in the public domain. As animals were common in the public domain in Talmudic times, it was deemed to be the responsibility of the merchant to protect his wares from animals. As such, an owner of an animal was not deemed responsible for what the animal ate in terms of the financial damage that was caused to the merchant i.e. he was not responsible for chaseir. Yet the Mishna informs us that he is responsible for the benefit he received through having his animal fed with the merchant’s produce i.e. he should still pay nehneh. The Gemara informs us that the owner does not have to pay the merchant for the price of the fruit but rather must pay him for the benefit he received in not having to feed his animal i.e. the amount he would have paid on the cheaper feed he would have used of the same quantity. It’s not always about what you cost the other but sometimes you have to consider your benefit. This would seem to be an important principle in regard to downloads for, while people contend that they are not directly causing a lost, they do cause opportunity costs and they do benefit. This approach to establishing copyright law was actually taken by Rabbi Yechezkel Landau, the Noda B’Yehuda.
Consideration for chaseir may even be broader. While the topic is actually complex as the Halacha also values competition, there is concern for activities that may impact on another’s business. For example, T.B. Baba Batra 21b states that once a fisherman has marked out an area for himself, perhaps putting out feed to attract fish, other fisherman cannot fish in this area. Again the issue is not propriety rights; this place and the fish are not owned by this fisherman. It is simply a recognition that you are causing loss – the fisherman has extended time, effort and, perhaps, even money to mark this area. It is, as such, improper to fish there and take a fish that this fisherman may have otherwise caught. Rabbi Moshe Sofer, the Chatam Sofer, applied this idea in his discussion of copyright.
The reality is that Jewish Law takes a serious approach to issues of intellectual property while in many ways not focusing on the property question but rather on the conduct that should be expected from the ethical individual. Consideration for Dina d’Malchuta Dina, that the law of the land has standing in Jewish Law, also is to be considered. Nonetheless, especially when the secular law has such exceptions, there are opinions that would consider the extent of the download and whether it is just for personal use before absolutely declaring it forbidden. Other ethical motivations for a download may also be considered.
The bottom line is that the issue is much more than a question of stealing with implications that you are taking something. The definitions of taking are much broader than an object of something. In addition there is the fact that you have benefitted. I would not say that this means that every action of downloading is forbidden but that the issue is one that needs to be approached seriously.
For further investigation of Halacha’s view of copyright, see:
Rabbi Israel Schneider, “Jewish Law and Copyright”, The Journal of Halacha and Contemporary Society XX1 (http://www.daat.ac.il/daat/english/halacha/schneider_1.htm)
Rabbi Chaim Jachter, “Halachah and Copyright Laws”, Gray Matter: Discourses in Contemporary Halachah (http://www.torahlive.co.il/templatebild/tipsresources/Halacha%20and%20Copyright%20%28Jachter%29.pdf)
Rabbi J. David Bleich, “Chapter 6, Business and Commerce: Copyright”, Contemporary Halakhic Problems, Volume 2