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obsevanteen- “and, in MY book that’s absolutely considered stealing”
in your book it may be considered stealing. Fortunately, the rest of us have this book called the Torah (ever hear of it) which we consult to actually see if it is stealing. You can’t just use logic to decide something is assur.
Daas,
Do you disagree with what I maintain is the maximum recourse available to the producer under halacha if the “renter” violates the terms of the agreement? (If so, specifically on what halachic basis?)
Yes. A rental has a return involved, the agreement is that it must be returned if copied.
Aries,
Whether or not the producers of Jewish music are honest in their own business dealings does not affect whether or not the rental agreement works or not. It’s really an irrelevant point. Besides, I have no reason to suspect them more than anybody else.
Shwekey can charge a thousand dollars to rent a CD for one day if he wants. He has absolutely no requirement to fit into Blockbuster’s price structure; you can choose not to rent it if you wish. If he did so, of course, he wouldn’t make any money, but that’s his problem. In fact, though, if you read the rental agreement, the terms are such that if you don’t copy it, the CD will actually remain in your possesion in perpetuity (the terms for return are structured as to make it virtually impossible to ever come to fruition).
I already made my argument that the buyer is aware that there’s a rental and that the producer is makpid on copying, and the consumer can choose to see the agreement if he wants.
There are some possible arguments to question the validity of the rental, but I haven’t yet seen them brought up here.
Daas,
Do you disagree with what I maintain is the maximum recourse available to the producer under halacha if the “renter” violates the terms of the agreement? (If so, specifically on what halachic basis?)
Yes. A rental has a return involved, the agreement is that it must be returned if copied.
IOW, you agree with me that the only recourse the producer has (if the renter makes a copy for his iPod or for his friend thus violating the terms of the rental) is to demand the CD be returned, but disagree with me that the producer must issue the customer a refund (i.e. a pro-rated refund based on the remaining portion of the rental term — originally 20 years in Aderet’s case).
There are some possible arguments to question the validity of the rental, but I haven’t yet seen them brought up here.
Which arguments, that you know of, haven’t been brought up yet?
Tums,
First of all, in most cases copying for your own ipod does not violate the agreement. Secondly, although that’s the producer’s only recourse, the renter, by violating the agreement, was oiver on g’neiva (using the producer’s property in a way which he never allowed).
Your point is one of the things gained by rental vs t’nai: in a t’nai, some poskim (not all) maintained that the producer would have to refund the money (and since he has no intention to, the whole t’nai is invalid). Others hold that since the purchaser broke the t’nai, the money need not be returned.
DY, are you saying that as a consumer I can ask and expect the store to open the cd so that I can read the rental agreement and then choose NOT to purchase the product?
I would guess that the store owner would refuse, but he might show you a copy of the agreement or explain it to you. As I posted earlier, at least one CD (one that I own) says: “Ask your retailer for a copy of the rental agreement, also see enclosed copy”.
You bring up an interesting point though, which I alluded to earlier, which is the the fact that the rental agreement is with the producer, but you’re getting it from a store. I do wonder how this affects the validity of the rental agreement, depending on the store owner’s agreement with the distributor, and the distributor’s with the producer.
First of all, in most cases copying for your own ipod does not violate the agreement. Secondly, although that’s the producer’s only recourse, the renter, by violating the agreement, was oiver on g’neiva (using the producer’s property in a way which he never allowed).
Breach of contract is g’neiva? If I sign a contract with you to rent an office for business purposes only, but instead I move in with the gantze mishpacha, is that g’neiva? (Just asking.)
Your point is one of the things gained by rental vs t’nai: in a t’nai, some poskim (not all) maintained that the producer would have to refund the money (and since he has no intention to, the whole t’nai is invalid). Others hold that since the purchaser broke the t’nai, the money need not be returned.
You’re saying that the halacha for a rental is different than that for a t’nai, in that all poskim agree there is no need to refund the money for the remaining term of the rental, if the renter broke the terms of rental?
(Side point: It would be easier to read your comments, if you put a blank line between your paragraphs as well as your quotations.)
DY a copy is NOT valid since there is no guarantee that the copy is exactly the same as what is inside the wrapped product. One would have to see the actual agreement before actually agreeing. So it makes the whole transaction void since you can’t agree to something you can’t see. In order to actually make this valid, they would have to put the agreement in a pocket outside the wrapper so that the customer can actually pull it out and read it.
Breach of contract is g’neiva? If I sign a contract with you to rent an office for business purposes only, but instead I move in with the gantze mishpacha, is that g’neiva? (Just asking.)
I believe so.
Even the m’chirah b’t’nai, I was told by a big talmid chochom, had a “shiur” (exclusion) in the sale; it remains in the ownership of the producer regarding copying, and such use by the purchaser would be g’neiva.
You’re saying that the halacha for a rental is different than that for a t’nai, in that all poskim agree there is no need to refund the money for the remaining term of the rental, if the renter broke the terms of rental?
I can’t say all; I haven’t asked all of them. But certainly more.
re: side point; Sorry.
DY a copy is NOT valid since there is no guarantee that the copy is exactly the same as what is inside the wrapped product.
If the copy were to be different in a significant way, you could then return it for a full refund.
If Aderet is renting the CD to me for 20 years, that means I have a contractual rental relationship with Aderet for the next 20 years. If the CD stops working after 5 years, they must replace it. If not, it was all a joke and never a rental.
If Aderet is renting the CD to me for 20 years, that means I have a contractual rental relationship with Aderet for the next 20 years. If the CD stops working after 5 years, they must replace it. If not, it was all a joke and never a rental.
IIRC, it’s written in the agreement.
Since when is a rentel agreement binding if I dident sign it. if my landlord makes me read a lease without asking my sugnature then its not valid.
You made a kinyan (s’chirus) when you took the CD (meshicha/hagbaah). Why can’t the conditions be verbal (without a shtar)? we’re discussing m’talt’lin; you’re comparing karka.
besides i’m buying the tape from the retailer who at that point is the owner so how can the previous owner (the producer) rent it to me?
The store owner can’t sell you something he doesn’t own. If the transaction between the store and distributor is done correctly (I don’t know if it is), this should not be an issue.
So if after I rent the CD I lose or break it, I am liable to replace it for the owner (Aderet)?
Does the rental allow me to loan my CD to my friend to play on his CD player (when I am away and don’t need it)? Can I use the CD in my friends car when driving it (or being given a ride), or on his CD player when I am at his house? Can my father, brother, or son take the CD from the living room shelf and play it (since I always let them borrow my stuff without asking)?
If so, if my relative/friend — on his own initiative and without my knowledge or permission — makes a copy, he seemingly violated nothing as he has no contractual relationship or agreement with the producer.
“If the transaction between the store and distributor is done correctly”
Its most probebly done by a delivery boy who dosent know by wich side to open an Shulchan Aruch.
The terms of “sale” or “rental” are not determined by the delivery boy, rather the store owner/authorized rep. and distributor/authorized rep.
So if after I rent the CD I lose or break it, I am liable to replace it for the owner (Aderet)?
They specifically exempt you from damages.
Does the rental allow me to loan my CD to my friend to play on his CD player (when I am away and don’t need it)? Can I use the CD in my friends car when driving it (or being given a ride), or on his CD player when I am at his house? Can my father, brother, or son take the CD from the living room shelf and play it (since I always let them borrow my stuff without asking)?
Yes
If so, if my relative/friend — on his own initiative and without my knowledge or permission — makes a copy, he seemingly violated nothing as he has no contractual relationship or agreement with the producer.
As far as the rental agreement, if you had no idea that they would copy it, you’re probably right. The assumption of this discussion was, though, that it’s assur, or at least a big lack of mentchlichkeit, to get a copy of a recording which you didn’t pay for (assuming it’s still being offered for sale).
If Aderet is renting the CD to me for 20 years, that means I have a contractual rental relationship with Aderet for the next 20 years. If the CD stops working after 5 years, they must replace it. If not, it was all a joke and never a rental.
IIRC, it’s written in the agreement.
On second thought, it’s not written in, but doesn’t need to be (what is written is the opposite – that the consumer is not liable for breakage).
If the CD was defective, it would the company’s obligation to replace it (no different than a sale) but otherwise, if anything, it would be the consumers obligation (hence the exemption).
There are some possible arguments to question the validity of the rental, but I haven’t yet seen them brought up here.
Which arguments, that you know of, haven’t been brought up yet?
Sorry, I missed that earlier post.
One of them was mentioned, that the agreement between all of the earlier parties (producer-distributor-store) would need to be done correctly.
The other, I also hinted at; they are sometimes inconsistent in how they term the transaction. If they sometimes refer to the transaction as a sale, would that invalidate the “rental”? I don’t know.
One example is what I mentioned previously, that on the same CD it says:
“THIS CD IS BEING RENTED NOT SOLD
Ask your retailer for a copy of the rental agreement, also see enclosed copy”
and then it says:
???? ????? ?? ??????-???? ?????? ????? ??????? ??”? ???? ???? ??? ?????????
Also, on the Mostly Music website (Aderet), there are two options: Buy CD, and Buy Download.
Again, I am not claiming that this definitely overrides the terminology on the CD, but it’s something to think about. If during the online purchase process nothing is mentioned about a lease (anybody have experience with this?), then they shouldn’t be able to consider it one (unless you knew beforehand that the particular CD has a lease agreement inside).
Also, on the Mostly Music website (Aderet), there are two options: Buy CD, and Buy Download.
IOW, you are saying a download is impossible to rent. Or that the website is missing any disclaimer declaring it a rental? It seems to me that it would be impossible to “rent” an intangible asset, like a download — even with the proper terminology on the website.
IOW, you are saying a download is impossible to rent. Or that the website is missing any disclaimer declaring it a rental? It seems to me that it would be impossible to “rent” an intangible asset, like a download — even with the proper terminology on the website.
I think I already mentioned that I don’t know if they can regulate a download.
What I meant with this point is that they don’t mention a rental option on the CD. They call it BUY CD.
I am sorry for not being more clear.
What is I “buy” an Aderet “rental” CD and a few months later get bored of it and sell it on eBay. Was I allowed to sell it? And either way, the new buyer – how is he bound to any the “rental” terms? (I just send him the original CD with no mention of the rental and no original packaging.)
You can’t sell what you don’t own; I would assume that you could tranfer the lease (but I can’t guarantee it) but the new owner would not have any more rights than you. And you probably can’t keep any copies or files which you made while you owned the rights. (That may depend on the shaila of copying what you didn’t purchase.)
That’s an interesting point. If the second buyer (on eBay in the above example) was unaware of the fact it is a rental, and assumed he was purchasing a CD like 99.9% of CD’s are sold, and is still unaware of the fact it was originally a rental, is it like…
…he purchased stolen merchandise? (Same idea as if someone stole something and sold it to another person who has no idea it was stolen.) If so, what are the rights of the new buyer?
…is still under the rental, just he has no idea that its a rental and has no idea what the rental terms are.
DY, do you work for Aderet? Why are you so adamantly defending them? I still disagree with you, there is no way that you can remember everything on the copy of the agreement in the store to match it to the one you take home, and I highly doubt that the store is willing to hand out copies or is in the habit of handing out copies of the agreement with each purchase.
In addition I highly doubt that the store owner points out to any consumer that they are “renting” the CD and should read the copy of the agreement. Since this is not common practice the onus would be on the store owner to “tell” the consumer that they are not actually purchasing the CD like they are accustomed to and like they purchase other CD’s.
so let me ask again; Lets say they can stop me from coping for myself, is it right for them to stop me from using something I paid for?
In my opinion, no. But it probably works. There might be loopholes, and if I’m right about the loopholes, I wouldn’t feel it was wrong to utilize them (let me again stress if I paid for it).
The possible loopholes that I know of: copying off of a download, copying off of an already illegally made copy.
IOW, if I paid for a CD, it’s possible (according to my theories) that I would not be able to copy from my own CD, but I could copy from someone else’s pirated or downloaded copy. Ironic, I know, but possibly true.
DY, do you work for Aderet? Why are you so adamantly defending them?
No. Read my last post (which I think crossed yours in the mail). 🙂
Regarding your next point, I mentioned already that if the store and the distributor are not on the same page, the rental agreement might not work (just my theory). I also pointed out that the store owner can’t sell what he doesn’t own (without g’neiva involved).
The reason I “defend” them? Because I think there’s a real chance that copying might be g’neiva, which is, I think, something even more important to be makpid on than, say, cholov Yisroel.
I’ll again repeat, though, that most producers allow one copy to be made.
Tums,
The CD itself has printed on it that it’s a rental (although obviously not the full agreement). So the buyer will know (albeit after he receives it) that it’s a rental.
I agree, the idea of “reselling” these rentals is interesting.
I’ll again repeat, though, that most producers allow one copy to be made.
What is the precise basis in halacha that a purchased (not rented) CD cannot be copied (for a friend)?
DY, this was discussed by so many poskim that have said a person can many a copy for themselves.
What is the precise basis in halacha that a purchased (not rented) CD cannot be copied (for a friend)?
If you mean without even a t’nai, that’s a tough one. Throughout the years, the gedolei hador have protected the publishers of seforim from infringement of their “copyrights”. I don’t know the firm basis for that either. There’s a teshuva from R’ Moshe prohibiting copying a recorded shiur (which is being sold), and I don’t know the firm basis for that either. I don’t think there’s any gemara that discusses “intellectual rights”. The reason that music producers had to start with the t’nai and now the rental is because some poskim were in fact matir copying, because the source for the issur is so fuzzy. Of course, the way the yetzer hora works, many people followed the minority opinion permitting copying.
DY, this was discussed by so many poskim that have said a person can many a copy for themselves.
If they said it even when the producer specifically is makpid, and has this new rental agreement, then I stand corrected, although I don’t understand why I’m wrong.
There was an interview a few years ago in Mispacha magazine in which one Jewish music personality said that he is even makpid on one copy, and claimed that R’ Elyashiv backed his right to do so. I don’t understand how in today’s day, when most people listen on mp3 players, he can reasonably expect people to only listen to the actual CD. I called his distributor (Aderet) to clarify, and the answer I got was “most producers allow one copy”. Before I got the chance to follow up, the phone was hung up.
i my opinon rental agreements are null and void, because devorim shebelev ainun devorim. BUT i am not a posek.
Better question – if it is so effective, why aren’t ALL the producers using this rental setup? Why only Aderet?
i my opinon rental agreements are null and void, because devorim shebelev ainun devorim. BUT i am not a posek.
If it wasn’t printed on the CD jacket, you’d be right, but it is.
Better question – if it is so effective, why aren’t ALL the producers using this rental setup? Why only Aderet?
You would have to ask them, but my guess is because some people are upset about the rental, as evidenced here. It’s probably a business decision.
BTW, Aderet is a distributor and not always the producer of the CDs they distribute.
well to those of you who may have learned the sugya of devorim shebilev in kedushin…..
the gemorrah discusses a case where one sold his possesions with the intent of making aliyah to ey. The reshonim learn that the fellow did mention to his friends that that his intent is for aliyah, for otherwise its poshut he can not be mevatel a mechirah on such a claim. Never the less since he did not stipulate b’shas mechirah, we say words in heart are not words. so my arguement that i would like to present to the choshuver coffee drinkers is: that since it is not mentioned in tranaction but merely stating on the jacket theus the rental is buttul.
BTW dass yochid – what is your level of halacha education?
p.s. i think rabbi yahoo levin shlita from lkwd has issued a shtikel torah on this inyan years ago. if anyone knows where its printed please let me know.
dy said :The reason I “defend” them? Because I think there’s a real chance that copying might be g’neiva, which is, I think, something even more important to be makpid on than, say, cholov Yisroel.
FYI according to some’; R moshe zatzal’s kula on cholov yisroel is no longer applicable, since nowadays there are punctures which render the animal traifa , which is common in the non-cholov yisroel. the cholov yisroel farms avoid those traifa animals.
might be genaiva
also might be cholv treifa issur deoraisa ,
since it is not mentioned in tranaction but merely stating on the jacket theus the rental is buttul.
They expect you to read and accept the terms at the time of the transaction; they didn’t merely tell their friends.
BTW dass yochid – what is your level of halacha education?
Not relevant; I don’t expect anyone to accept or reject my arguments based on anything other than their own strengths or weaknesses. For halacha l’maaseh, ask your posek.
FYI according to some’; R moshe zatzal’s kula on cholov yisroel is no longer applicable, since nowadays there are punctures which render the animal traifa , which is common in the non-cholov yisroel. the cholov yisroel farms avoid those traifa animals.
might be genaiva
also might be cholv treifa issur deoraisa ,
True; I was comparing to the theoretical heter of cholov stam assuming no issues of treifa. Besides, most poskim, according to my understanding, are meikil on that shaila (based on bittul), whereas I know of no poskim who are meikil on the rental issue.
DY b’michlas kvod toruschu…..
I dont hear any chiluk bet. a stipulation prior to the transaction to friends which is void . to unspoken terms during the transaction. Fact of the matter is all terms must be out spoken b’shas mechirah. They can expect you to read jackets and shmackets but halacha requires all terms to be mentioned during a transaction.
Imagine in talmudic times if someone would sell an ox and on the horn of the ox it would say that this ox is not sold but merely rented . do you think his unspoken tem will be acknowledged? I DOUBT IT. what the music companies can do is as follows. in the first hand the merchandise is transfered, ie. when aderet sells it to its disributors. That transaction assumingly is done through a contract anyways. at that point they can add to the contract that they are leasing it to the distrb. (with rights to sublease) . then all subsequent transactions will be merely rented. because like DY said earlier you cant sell what you dont own.
DY said True; I was comparing to the theoretical heter of cholov stam assuming no issues of treifa. Besides, most poskim, according to my understanding, are meikil on that shaila (based on bittul), whereas I know of no poskim who are meikil on the rental issue.
who r the mattirim? i am told the cholov yisrol companies are makpid.
It seems strange to rent a CD to an individual for the going price of a CD purchase. Rental generally means that you pay a fee on a daily; weekly; monthly base for as long as you use the item or service.
And when an owner rents to someone, he has a record of the renters name, address, etc.
It’s a nice try but it’s no rental no matter what’s on a piece of paper; call it something else, like a sham because that is how it is regarded.
DY b’michlas kvod toruschu…..
I hope you’re being facetious 🙂
I dont hear any chiluk bet. a stipulation prior to the transaction to friends which is void . to unspoken terms during the transaction. Fact of the matter is all terms must be out spoken b’shas mechirah. They can expect you to read jackets and shmackets but halacha requires all terms to be mentioned during a transaction.
If you mean “spoken” rather than written (or printed), I don’t see why that should matter.
If you are questioning whether the buyer has a valid claim if he says he was unaware that it was a rental, that’s a possibility (I don’t know if the seller has a right to expect the buyer to read the “shmacket” or not); I am assuming that the buyer saw that it’s a rental.
Your point about the store owner and distributor being three separate parties is valid, and certainly must be considered. Factually, I believe that, at least in the case of Aderet, every artist/producer has a separate agreement, but the distributor is Aderet, which ultimately owns the CDs and they distribute them to the store.
For simplicity’s sake, let’s take a case in which someone makes a transaction at Mostly Music in Boro Park which is owned by Aderet (which I think is owned by Mendy Werdyger). The “seller” is actually Aderet, and the clerk works for Aderet. The owner of Aderet is not present for every transaction, and doesn’t want to burden the clrk to specify at each transaction whther it’s a purchase or rental. He therefore notifies the consumer by printing it on the CD jacket. i see no reason why any assumption was made that he changed his mind between the time of printing and the time of sale.
When distributed to a different store, for the rental to be in affect, either the store would have to be renting it to the consumer, subleasing it to the consumer, or merely acting as an agent of the distributor. If he in fact bought it from the distributor with no conditions attached, and then sold it to the consumer, I assume the printed rental agreement would be worthless.
Regarding treifos and milk, I’ve heard that Rav Belsky is matir (but not based on bitul; I don’t know if he also agrees to bitul), and Rav Yechezkel Roth is matir based on bitul. I am also told that the CY companies are machmir, and I agree with you that this is another legitimate reason to be machmir to buy CY products..
cherrybim,
You would need a better reason to be matir an issur of geneiva than that you think it seems strange, and that some people (not poskim) regard it as a sham.
DY are you saying in talmudic times, if someone would sell an ox and on the horn of the ox it would say that this ox is not sold but merely rented . do you think his unspoken term will be acknowledged? Even if the buyer did read the jacket, as long as it it is not belebo uv’lev kul adam it is “devorim shebilev”, many buyers are unaware that there is a rental going on. therefor its considered “unspoken ” and is not valid.
p.s. CAN aderet demand i return the tape ? also a socher is mechuyav i on ones . am i liable for any damages to pay cash?
p.p.s dy are you bakant with the sugya of “devorim shebilev”?
No matter what it says on the original package sale or lease, when a second person illegally copies from the someone else’s computer, it seems that there was no actual geneiva. The producer does not own the physical hard drive and the binary digits encoded within.
Therefore it’s very different from the usual case of taking someone else’s physical property.
Even if above is true there might be other issurim involved like hasugas gvul.
when I had the question, I called a Rav, and his Psak was its Asur, unless I get permission from the producer. I called the producer and he said NO. I offered to mail a check for copy (same as original cost) and he still said NO. So no, you dont buy rights to do whatever you want. You buy the right to use the purchased copy you paid for, nothing else.
Ari, what is your source of Parnassa, and how would you feel if someone would bypass your services and cause you a loss of income?
Poeple, please dont be selfish and look for every excuse why its mutar. For you its $10, for someone else its their Parnassa.
Please.
mr. nozik- i am not disagreeing with any other reasons to assur copying, i am just saying that if you are coming on to rental agrreements to assur , then that is not a reason. based on devorim shebilev
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