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If, as is the case in some countries, “file sharing” (such as sites like limewire and Kaza, or torrent sites like mininova and bittorent) is legal, provided that it is not done for profit. If that is the case, can somebody explain to me why their would be an issur in copying (if there is any at all), and what, when i copy a cd, movie, etc. from a disc or someone elses ipod, would i be stealing (even the “perpetual lease” to me doesn’t seem like it would make a difference, b/c forsure i am allowed to copy my cd onto my ipod, and when i am taking it from the ipod, i am not taking anything from the cd). thanks anyone for the clarification
Theres a machlokes poiskem about copying. If memory serves me correctly, Rav Eliyashev Shlita holds dina dmalchusa dina does not apply between two Jews (only between man and State), and a voice (or sound) is hefker.
There are other reasons not to copy, especially if you are considering purchasing the CD, as you may be taking business away from a Yid by copying.
Don’t quote me on the particulars above, and ask a shaila first. But that is my quick recollection on the matter, and no more.
How about just not doing it because it’s not an ehrlich thing to do?
Seriously. Put aside copyright for a moment. Put aside whether it’s halachically permitted for a moment. Just ask yourself this question — if the situation were reversed, and you spent a lot of time, money and effort creating a CD, DVD, book, etc., would you want people to copy and redistribute it for free to everyone and their brother?
The Wolf
(As a side point, ripping the files to your MP3 player is not the same thing as distributing the files to others for their use. The producers of CDs expect you to rip the file to your MP3 player… they know you’re not going to purchase a second CD for that purpose alone. In addition, if it’s on your MP3 player, it’s still for your personal use. That’s a long way from copying it for others.)
The Wolf
There are many Rabbonim ( I know 2 whom i spoke to directly) who say that you can not dictate to me what I do with my property. Once I purchase the item I can burn it, break it or even copy it. I can purchase an item from a store and then sell it at half price to draw people into my store. Is the original storkeeper happy,absolutley not but once it is im rishus and i have made a kinyan i can’t be stopped. That is the halacha. There is also mentchlichkeit ( hilchos derech eretz etc) which demands that we repect the rights and wishes of others and not do anything that may hurt them.
fmlogic123 – when you purchase copywrite property or intellectual property you purchase the right to use the product not the ownership right to the intellectual property itself. this is obviously different from physical property. if you want to use the intellectual property contained therein you need permission of the owner of the property and will most likely need to pay royalties.
I once asked a Rav about the CDs that have written on them “Sold on the condition that you do not copy this CD”. He told me it’s not a good condition, and I could ignore it. He told me that were I to tell the store owner that I didn’t accept the condition, and wanted to buy the album without it, he’d most likely sell it to me. Furthermore, the store owner usually isn’t even aware it’s written there! The manufacturer who wrote the message sold it to the store owner. Therefore, you can make the argument that the condition applied to him. However, once the albums belong to the store owner, the condition no longer applies.
I once asked a choshuva rav and he told me that as long as you don’t make money off of it then you are allowed to copy.
once again, we are not dealing with an end product such as a sweater or a chair (although designs and trademark names apply) we are dealing with intellectual or intangible property. The store owner sold a tangible CD/DVD/Tape what is being copied is not the tangible but the intangible – the reason you bought the item – this is what the condition is being made on my the performer in conjunction with the publisher. The store owner bought and sold the tangible item you bought, I do not think that the store owner has the right to decide whether you can duplicate the intangible aspect of what you bought because the store owner(s) never acquired this to begin with.
mdlevine – You make good points, but your point is a secular legal one, not a halachic basis. Al pi din, there is no concept of intellectual property.
Josephf — so then I assume that a mechaber sefer would have no complaints against me if I copied his sefer in a country where copyrights are not recognized?
In any event, the idea that rabbonim allow willy-nilly copying is certainly not true. In the past they have recognized the need for protection of people who put efforts into work. For example, very often, if a printer put out a new edition of Shas, the rabbis of the area would protect his work by granting him the exclusive rights to print a Shas in the area for a term (usually 25 years or so). They understood that if this were not done, no one would invest the time and effort into producing new sefarim. The same could be said for almost any intellectual property.
The Wolf
Wolfish,
You are completely correct. Halacha does recognize intellectual property. And throughout the centuries have put cherems on people copying their stuff.
WolfishMusings – Its a machlokes poiskim how to treat IP. Ask your local Orthodox Rabbi.
Someone cannot prevent the dissemination of Torah.
Audio (any) particularly cannot be owned al pi din.
Bus as I said, these things varies amongst poiskim.
<i>Someone cannot prevent the dissemination of Torah.</i>
And yet, that flies right in the face of the historical data that we have. Rabbonim *have* granted copyrights and monopolies on Torah content in the past.
The Wolf
WolfishMusings – As I said, it differs amongst poiskim. Some poiskim may rule that based on “taking away business” from the content creator (i.e. you would’ve purchased the product if you hadn’t copied it), that it should not be done.
Rav Eliyashev holds that dina dmalchusa dina does not apply on issues of ben adam lchaveiroi (between two Jewish people); its applicable on issues between man and government (i.e. taxes.)
I have been involved in a din torah regarding intellectual property. The psak was quite clear that one party may not copy or use any IP whatsoever, without permission from the author.
One specific example was IP found on a document, legitimately given to party B by party A. After leaving the co., party B was prohibited from using the IP to benefit his new place of employment.
My 2 cents.
One of the reasons copying is allowed, even though there is a disclaimer on the back is as follows.
Lets say you bought a cd, and decided 3 years later to make a copy for a friend, wait what about being sold on condition of it not being copied? al pi halacha you would or should have the right to go back to the store or MBD and say I want out of the deal and he would give you the $20 bucks back, if he was willing to do so then you can’t copy the cd and must abide by the disclaimer or “deal” but being the store will laugh at you as well as MBD, (or any singer) the disclaimer is worthless and you can do what you want.
As long as you’re not selling it for a profit.
Another solution is to “lend” the copy to your friend so it’s always yours or your copy.
On a side note the goish music world will send a new cd if you send back an old one that’s scratched or won’t play, (it cost them five cents a piece) why won’t the heimish stores or singers do the same??
Rav Eliyashev holds that dina dmalchusa dina does not apply on issues of ben adam lchaveiroi
So, Rav Eliyashev would allow insider trading*? He has no problem if I photocopy someone’s sefer (which I bought legitimately) and start selling it on the street for 50% off?
The Wolf
* Using inside information may be unethical in a fair market, but it’s not stealing.
WolfishMusings – There may be other reasons that prohibit such activity. As I keep saying, ask a shaila.
chesedname – What I think you are referring to, is that such a “sold on condition not to copy” is a contract. So if the media buyer breaks the contract and copies it, the only recourse available al pi din to the seller/producer (i.e. the other side of the contract holder), is to demand the contract be reversed (i.e. the buyer returns the media and the seller/producer provides a refund for the purchase price.)
Just happened to see in the haskamos for the Frankel Rambam, including the Steipler, Reb Moshe, and others, that they all seemed to say that any copying was forbidden by halacha. (I get the impression that the publisher asked them all to make a statement to that effect, and they agreed.) Look them up when you get a chance. (Handwriting of some very hard to read.)
Rav Belsky shlita addresses this exact issue as follows:
DOWNLOADING AND COPYING MUSIC
QUESTION 76: DOWNLOADING AND COPYING MUSIC
I argue with people about the ethics of downloaded music files from the Internet. I say that downloading songs or copying your own songs to give to someone else, without a copyright owner’s permission, or not compensating the owner, is stealing. What do you say about this?
RABBI BELSKY
Rabbi Moshe Feinstein ztl said that it’s not permitted to copy any item that is being sold by the creator of that item. Every time you copy it, you’re taking away sales from him. Anybody who downloads it, copies it, or does something else is really just turning someone else’s money into ashes. And that’s really the bottom line. It’s taking something from someone else.
This is one of the areas where people say, “Everyone does it, and it really should be mutar (permitted)”. People copy tapes and download from the Internet. Everything becomes “public domain”. There’s nothing private. People just download it and copy it and they’ll wipe the owner out.
But even if everyone does it, it’s wrong. You’re taking away something from someone and you’re harming him.
Sometimes people object to this argument and say, “Well, in that case, I’m probably not even allowed to copy down a shtikel (piece of) Torah that I heard.” But that’s not true – the Shach says “Ein gezel b’divrei Torah (there’s no stealing when it comes to Torah)”, that is, if you copy it down for yourself.
The guideline here involves whether or not what you’re doing is taking away a sale from the owner. One might say, if asked this question, “Oh, I would never have bought that anyway.” But in fact you shouldn’t say that. You do like it … and you would have bought it.
However, if you buy one and make a copy for yourself so that you can have, say, one in the car and one at home – that kind of copying is permitted. No one buys two of something for such a purpose, so copying the merchandise in this case doesn’t take the place of a sale. If you told a person who wanted one copy for the house and one for the car that he had to buy two, then he wouldn’t buy two. He would figure a way to carry it back and forth each time.
Since buying two copies for such a purpose is never done, then making a copy for yourself for two locations is not taking away a sale.
QUESTIONER
Is copying music a different type of stealing than any other type of stealing? Or is it just like any kind of stealing? Is there a principal that stealing is stealing and there are no distinctions? Is it just like walking over to someone with a gun? In this case we’re talking about intellectual property. So is that a lesser degree of stealing?
RABBI BELSKY
The concept of ‘stealing’ intellectual property has limitations because in certain cases it is permitted to copy an idea. For example, if someone comes up with some idea about how to sell something, that idea is probably not subject to being copyrighted or patented. But a song is copyrighted, and people do business by selling records or tapes with songs. This is an item that brings a livelihood to people. Therefore, if you’re taking it, you’re taking away the livelihood of a person.
That’s very important to remember. Someone sweated nights and invested money and time in order to create a certain item that the public is interested in, and then he’s ready to sell it. And then it turns out that some Napster type of enterprise gets its hands on it, and people end up paying zero for it.
If copying media (intellectual property, dina dmalchusa, etc.) is a machlokes between poskim, everyone should just follow thier own posek.
true, but the question isn’t if it is mutar or not … the question is why it should be prohibited.
when it comes down to it, what tangible item am i stealing?
proud mother, do you believe that if one is not taking a tangible item then there can be no din of stealing?
proud mother,
You are NOT stealing ANYTHING tangible. In fact, you are not “stealing” altogether. The issue is “Taking away business” since you would’ve bought the product otherwise.
And according to Rav Eliyashev, you are not even violating dina Dmalchusa Dina, since Dina does not apply between two Jews, just between Jew and State.
You are stealing the intellectual proprty rights of the person who created it.
<i>when it comes down to it, what tangible item am i stealing?</i>
Is theft limited to tangible items? If I hire you as a musician for an event and then not pay you, isn’t that theft? If I sneak into a concert without paying (without taking someone else’s seat), isn’t that stealing as well?
The Wolf
Wolf,
It isn’t “theft” or “stealing” al pi din. “Intellectual property” cannot be stolen in halacha. There are other issurim possibly, but the issur isn’t one of thievery.
I’ve heard this from more than one poisek.
Whats with the klering this way and that way? Where is the yashrus?! By the very nature that people always feel the need to defend themselves when copying music, therein lies the answer!!
I would love to see any of you people giving heteirim work in the music industry for a few months just to get a glimpse of how much money and peoples parnassah is lost because of copying.
Spend your $15. You will feel alot better about yourself and you will be helping another Jew make a living.
Kol Tuv
TOHIGHSCHOOLGUY,
Taking away business from a Yid.
is that an issur?
Yes (based on the circumstances.)
It probably falls under Hasagas Ge’vul, which is discussed at length by the Chasam Sofer. It also may fall under Ze nehene ve’ze chaser, which is discussed in the Nodah B’Yehuda.
I also seem to recall their being specific exceptions, according to some shittos, regarding audio media since a “voice” cannot be protected al pi din. Another thing that must be taken into consideration, according to many poskim, is no one –not even the author– can prevent the dissemination of Torah.
BS”D
Years ago I bought a cassette of Sefardi piyutim produced by one of the Syrian kehillos in Brooklyn, and there was a warning referring to the posuk in which hasagas gvul is mentioned (from last week’s parsha). I’ve also seen “issur hasagas gvul” on some “haimish” albums.
In any case, trying to find a heter for copying in most cases smacks of the “naval birshus haTorah”. Listen to online radio or use the listening stations in the sforim stores, keep track of what you like, and buy only what you like.
Joseph,
Theft is theft. You live in this country and there are anti-piracy laws.
lesschumras,
Are you an American first or a Jew first? I am PROUDLY a Jew first.
Per Hagaon Rav Eliyashev, Dina Dmalchusa does NOT apply between two Jews. As I said before, there are other reasons not to copy. But the secular laws are irrelevant in this case.
Unfortunately, your argument would not hold up in an AMERICAN court of law. If a fellow Jew did it to me, that’s exactly where it would be tried.
We are discussing halacha here, not US Tort Law.
And I’m sorry to here you would take a case against your fellow Jew to secular court in violation of the Torah.
From a strictly halachic standpoint, it is Muttar to copy Cd’s. It is YOUR property, and Halacha doesn’t recognize an idea or intelectual concept as something which can be copyrighted, and thus it can’t ever be considered ‘stolen’.
Therefore, many CD’s now say on the flap, that they are not being sold to you-only leased. In this manner, there IS an Issur Geneiva. There is a sefer that was published dealing on the matter of Copyrights (I forgot what it is called) and in that Sefer, he gives advice to those singers who don’t want their CD’s to be copied. He composed a text describing the ‘sale’ as merely being a lease, and therefore subject to the terms of the leasing agreement. I have seen that exact text quoted verbatim on CD flaps. In only those instances where that is written on the CD, is it Geneiva to copy them.
iluvchulent,
There’s no reason to post the exact same thing in two different threads. I responded to your point in the other one.
The Wolf
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