- This topic has 115 replies, 26 voices, and was last updated 12 years, 7 months ago by .
-
Posts
-
Im just wondering the different Heiteirim that people use for reasons why they can give out their music collections to others or make copies of their cds for others.
If they would not have otherwise purchased it.
Some poskim hold of it permissible while some other poskim hold it isn’t permissible.
Derszoger
So,using your logic, I can take your coat with out paying for it if I otherwise wouldn’t have purchased it
to my knowledge this is the logic:
The question is whether or not something not tangible/intellectual property as a value. Some poskim hold that intellectual property isn’t really “something” and thus there’s no geneiva by taking something that doesn’t have a “value” in halachik terms. I’ve heard Rav Willig pasken like this.
lessc: There is a difference in halacha beyween tangible and intangible goods.
If you check on Mostly Music, there is a thing there about copying music.
The best heter is to ask the author/performer and get permission.
It is probably “fair use” under everyone’s law if the work in question isn’t available commercially so you aren’t depriving anyone of their parnassah. And under American law, it becomes
“public domain” after a certain time – so an original Breslov melody can be used under American law without paying R. Nachman’s descendants a royalty (and halacha was usually more conservative about the time periods than the goyim).
Logically, the clear distinction between taking someone’s coat and copying someone’s music is obvious. Taking a coat provides a benefit to the taker, an act of taking, and a loss to the owner. Copying music provides benefit, but the other two aspects are not nearly as clear.
If one wouldn’t have bought it, where’s the loss?
Is it possible to “take” or steal something intangible?
What’s the halachic mekor for an issur?
Is there a Dina D’malchusa issue?
Because of these questions, Rabbis are all over the map here.
Isn’t geneivas da’as “stealing” (or dishonestly obtaining) someone’s regard – i.e. something intangible?
That has nothing to do with copying music.
It has to do with the concept of stealing.
I have actually asked Rav Yisroel Belsky this question and his answers was that its stealing to copy music from someone else instead of buying the cd. To those who say that u wud not have purchased it, who said? If u are copying the music, them u obviously like it and may very well purchase it! Honest yidden try to make a parnassah and we prevent them from doing so by copying music from other people. Rav Belsky told me that u already bought the cd, and u wanna copy it so u cud have 1 for the car, and 1 for your house, then its mutar since u wudnt have bought another 1 just for your car.
Theres a psak halacha from a Gadol with out any of us coming up with our own opinions.
OOM: And that has nothing to do with copying music either.
batseven: There are other shittos. (Even according to Rav Belsky, the issur is not “stealing”. It is something else.)
BatS- I have heard that form rav Belsky as well. Add my own 2 cents.
Vahavta Lrayacha…….. if you would have invested 50-60G to produce a CD……. if you would have invested hundreds of hours producing music for the Tzibbur… would you be happy/agree/ want people to buy it or copy it? Gotta feel for another Yid! No?
Moreover in Halcha if the purchase was made on condition that it not be copied under any circumstance , and by buying you tacitly agree to the terms, is it then permitted to violate the conditions or close you eye when someone borrows it to copy?
the Gateshead Rov z”l once paskened that you can copy a tape as long as you leave out one song. The logic in this pesak would seem to have been that seeing as the item which is sold is the tape then as long as you did not copy the entire tape you have not ‘stolen’ the item which is sold. That was in the old days of tapes, nowadays this pesak would seem to not apply becuase
a) copying music is rampant and a threat to the parnassah of the people who produce music
b) as each song is sold seperately it is now possible to ‘steal’ a single song
derszoger: Obviously you seem to think so. But I’m looking for some rational exposition on the subject here.
The issur according to rabbi belski is hasagas gvul i believe. Also geneivas daas according to most shitos is machazik tov lechaveiro which has nothing to do with dishonestly obtaining anything. genaivas daas is for example sending someone an invitation to a wedding when you know that they wont come and you dont want them to come but you figure its an easy way to get into their good graces. it is specifically limited to favor it has never been extended to other issues as far as i can tell. if you look in the poskim this seems to be very clear. i have yet to find anyone who holds that it is actually geneiva as there is no possible kinyan of any sort that can be done on intellectual property. the litmus test of “i would never have bought it” is a slippery slope however it is interesting that rav belsky didnt argue with the premise that such a concept is technically ok (albeit intellectually flawed) – if we would be talking hilchos geneiva there is no such svarah at all. dinah dmalchusa according to everyone but rav pam i believe is only by laws the government enforces and the government has not enforced copyright laws on individual downloaders in a while. the rabbonim who are maikal in this area (rav rottenberg in baltimore for example) hold that this is not hasogos gvul. There is a famous chasam sofer on intellectual property which is widely quoted – the rabbonim of the town had to create a special gezeira to prevent people from buying a set of rambam from a non jew who copied the typset from a jew and was undercutting him. It seems that they did
not hold that this was an issue of massig gvul (on the buyers part). This was a special gezeira because they were afraid torah would be lost if people could not make a profit off of printing seforim. I will find the exact mareh makom if people are interested but i think it is readily available online.
So, let’s say, if some recording artist at, let’s say, Jewish Music, Inc., by the name of, let’s say, JJJ, uses a Carlbach tune without permission, as his own, and now Jewish Music, Inc. says it’s assur to copy; that’s ok? (All names are made up).
Also to answer RABBAIM if you cant make a kinyan you cant make a tnai
Tnai? Its only a binding tnai if the seller will refund the buyers payment if the tnai is broken (i.e. a copy is made), as that is the recourse for a broken tnai. Since the producer and retailer won’t accept a return and refund the cost of the CD if the buyer breaks the tnai, the tnai is unenforceable and effectively there is no tnai.
So which Rav said its permissable to take a recently published book, that is still being sold in the bookstore, and make copies and sell them yourself? Or a new CD that is still on sale?
There’s a question of “fair use” whenever your copying doesn’t deprive the owner of his income, or perhaps for personal use under certain conditions – put going into business against the creator of the work by making and distributing copies so people won’t have to pay for it? Who says that’s allowed (Purim “torah” excluded).
jbaldy- 1- But if I am purchasing a CD with the intellectual property embedded and the seller posits that the CD be used in a certain way and not be used in a a certain way, doesn’t that tnai bind the purchaser to the limited use of the CD itself?
2- Theoretically, can one walk into a store, take the music CD which is playing, put it on his laptop, copy and put it back in the demo unit?
3- Any reply to the Vahavta Lirayacha issue? Would you go in front of a singer, borrow a CD of that singer from a friend and copy it then and there?
If not, why not? Just feeling!
To answer RABBAIM and akuperma the issue is saying that there is hasagas gvul on a buyer – obviously if u sell a service that another yid is selling that would fall under hasagas gvul assuming u are compromising his livelihood. that is the issue the chasam sofer and others have grappled with. the way music is stored on cds actually may prevent such a tnai from being valid. in addition not all tenaim that a mocher makes are halachically valid – rav belsky holds that one would be allowed to make copies for personal use ie one for home one for the car even though the mocher would prefer you buy 2 copies. it is totally dependent on what is considered normal usage. also if someone copied the music and the mechira was batel the mocher would be obligated to refund the money which i am pretty sure the music world would not be interested in. one popular to try to get around this problem (i think this was aderet who did this) was to say you are only renting the cd. many rabonim held that such a tenai didnt matter either because what you are buying is not the cd it is the intellectual property the cd is just a holder. In addition the whole point only has any validity in regards to physical cds – many people purchase music online in the form of mp3s (i personally purchase music that way because it is much cheaper) 2) i am not sure why that question is at all halchically relevant. 3) that is a very indirect veahavta lerayacha as the stores have already purchased a certain amount copies – is a good thing to do yes of course (i purchase every music cd myself either through mostly music or amazon.com) but that would in no way obligate anyone to buy the cds. according to this logic you should never borrow a cd from someone because the mocher would feel happier if you bough the cd. the major machlokes seems to be in regards to hasagos gvul alone with rav belsky and rav simcha bunim cohen of lakewood among others holding that it is an issue. to reiterate just that no one is confused the eirlich thing to do is obviously buy the cd because giving a yid parnasah is a big mitzvah. I am dealing with this issue from a purely halachic standpoint alone.
Good Job!
So, let’s say, if some recording artist at, let’s say, Jewish Music, Inc., by the name of, let’s say, JJJ, uses a Carlbach tune without permission, as his own, and now Jewish Music, Inc. says it’s assur to copy; that’s ok? (All names are made up).
JJJ (or Jewish Music, Inc.) is required to get a mechanical license from whoever owns the Carlebach portfolio. JJJ (or Jewish Music, Inc.) owns the copyright for the new recording.
Mechanical licenses are mandatory so whoever own the Carlebach portfolio cannot deny it to JJJ. Going a step further you can get a mandatory mechanical licence for any publicly released music. (Even music that was just released.)
The primary Heter was in this week’s Parsha (in Chu”l). Vayikra 19:11 writes ???????. You just need to ignore the ??.
Hello: Kinda like Acharei Rabim L’hatos?
This thread sounds a bit redundant:
http://www.theyeshivaworld.com/coffeeroom/topic/copying-music-mutar-or-ossur
There were many articles put out on this topic:
1.Halcha Berura
http://torahlive.co.il/templatebild/tipsresources/Halachahbrura.pdf
2.Halchaically Speaking
http://www.shemayisrael.com/parsha/halacha/Volume%205%20Issue%2011.pdf
At most the issur would be hasagas gvul. But even that is not necessarily the case, depending on the circumstances and posek.
“The stores have already purchased a certain amount of copies”
The decision on how many copies to buy was based on demand so if fewer people steal and more buy then they would have bought more.
some cds write a tnai that you cannot copy. this tenai is not halachically binding, because if the mecher would be botul you can copy it, then take it back to the shop and return the cd, and they must give your money back.
YW Moderator-42 please read the whole answer i gave
I did read the whole answer. I was just commenting on that one line. You call it an “indirect v’ahavta lirayacha”. Direct or not, there is a mitzvah of v’ahavta lirayacha and just as you wouldn’t want people using these indirect svaras against you, you shouldn’t use them against them.
YW Moderator-42 my point was – and this was proven by my example that you are allowed to borrow cds as opposed to buying them that there would be no “chiyuv” of vehavta in such a case – yes it is a nice thing to do but it would not mean that one is doing an issur if they copy instead of buy. in fact i think if i am not mistaken that most poskim hold this way – the battleground seems to be maasig gvul and to what extent such a chiyuv exists.
derszoger: “At most the issur would be hasagas gvul”
If a divorcee remarried and one of the witnesses on her Get had copied music on his MP3; I would be reluctant to do a Shidduch with the children from the second marriage!!!
Incorrect, hello99. Rav Elyashev holds there can be no intellectual property protection on a voice (i.e. music.) You are also mistaken about most of the others and their position. Provide citations for your claims for all those sources that anything other than hasagas gvul is at stake. At most, if at all.
Additionally, what I stated earlier above is the position of various poskim that can be relied upon even if some other pokim disagree and hold there is intellectual property protection al pi din.
As an aside, Torah publications also cannot be protected from dissemination as IP.
derszoger: I saw Rav Elyashiv’s psak quoted in a Sefer by someone who asked him personally. Why don’t YOU provide citations to counter my list. I have already done my fair share.
“At most the issur would be hasagas gvul”
“Additionally, what I stated earlier above is the position of various poskim that can be relied upon even if some other pokim disagree”
I don’t think your statements match! In fact, can you cite even a single Posek who explictly denies intellectual property rights.
You haven’t cited anything that says anything other than possibly hasagas gvul. Your claim of gezel is unsupported.
And your characterization of Rav Elyashev’s position is mistaken. Why don’t you cite and quote *verbatim* what even the third-party Sefer you saw about him claimed.
Sorry, all these Seforim listed write that one owns his intellectual property and it cannot be copied without permission. Doing so is either Gezel Gamur or akin to Gezel. Where do you get the idea from that it is merely Hasagas Gvul? The Igros Moshe I cited writes explictly “Gezel”!!!
“And your characterization of Rav Elyashev’s position is mistaken”
Nope, yours is. I’ll try to post an exact quote tomorrow.
What’s so hard to understand? I didn’t say there is an open-ended heter to copy at-will. Hasagas gvul is a concern, depending on the circumstances and situation. But other times hasagas gvul is inapplicable and you can copy.
If you feel it is “gezel” to copy, please explain how most poskim allow making a copy of a CD for your car (with the original at home) or a backup copy in case the original gets too scratched up or copy your CD to your iPad or MP3 player. Do you, against the general halachic consensus, feel even those copying is prohibited? And explain how those copying is any different than copying a CD from a friend that you are 100% certain you would never have otherwise purchased.
“In fact, can you cite even a single Posek who explictly denies intellectual property rights.”
Rav Yaakov Shapiro shlita, of Bayswater. And Rav Yosef Shalom Elyashev shlita.
“As an aside, Torah publications also cannot be protected from dissemination”
That is also debatable. The Teshuva in Igros Moshe clearly disagrees with you.
The Igros Moshe, which is the only source you cited, seems to clearly base it on hasagas gvul. In fact he writes it is midas sdom for the producer to be makpid on copying if it causes him no loss. i.e. If it is no longer being sold, it is okay to copy it.
Rav Elyashev says there is no concept of intellectual property in halacha. If I recall, he said that dina dmalchusa precludes copying. But that means that if, for example, Congress passes a law that makes a copyright expire after five years, you could halachicly copy anything over five years old. Also, most poskim say dina dmalchusa doesn’t apply to dinei maminos bein adam lchaveiro.
Rabbi Zev Leff shlita is another who says you can copy if you would certainly have not otherwise have purchased it. He says various poskim pasken like this. He states “Zeh Nehene V’ zeh Lo Chaser”. This opinion is available on his website as a recording made by him. Question numbers 1176, 1695 and 1684.
So, clearly, even if you find other shittos forbidding, there are strong shittos and halachic reasoning that permit that can be relied upon.
@hello99 i would love to see “precise” mareh mekomos and not just names for this – it is my understanding – and as far as ive been heard and seen from poskim very clear that the main issur involved is hasagas gvul and not gezel (the chasam sofer for example clearly argues with you on intellectual copyright) i would add rav belsky to the list of people who seem to imply that it is not gezel rather hasagas gvul – his only issue with the saying zeh neneh vzeh lo chaser is that if you are listening to it you probably would have been willing to pay something for it.
The Chasam Sofer you are referring to is Teshuvos CM 41 where he requires a specific Cherem to prevent a second party from reprinting a Shas. However, see Shevet HaLevi 10:276 where he explains that this is limited to printing Gemaros etc where the content is public domain. When the content is original he writes that the Chasam Sofer would agree it is ???? ????? ???? ??????.
Is this sufficient for now?
Now it is your turn to cite opposing Poskim of comparable stature.
Hello: Aren’t those mekoros giving only a time-limited, per rabbinic letter, protection for new seforim from being copied for sale by competitors? And is Rav Y.S. Eliashev of comparable stature? Also, as long as your posek holds it is zeh neneh vze lo chaser mutter, the other mekoros aren’t relevant when you’re simply following your posek.
This thread is specifically for heteirim, we know where to find the chumras.
shmoel: No. On the contrary, many of them are writing that there is no need for a limited Cherem, as the author own his work and it is intrincically theft to copy it.
For example, the Netziv, Malbim and Rav Yitzchok Elchonon in their Haskamos on the printing of the annotated Rivash specify a 6 year Cherem againt printing any copy of the Rivash, and a permanent Issur againt printing the editor’s Hagahos.
- You must be logged in to reply to this topic.