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
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