Heteirim for Copying and giving out Music

Furthermore, once it has been reprinted numerous times without protest, it can be presumed that either the author had no intent to retain private ownership on the Sefer or his heir were Mafkir it.

hello99: I think that you’re getting two topics completely mixed up. I understand that many poskim could hold that its issur gezel gamur for someone to reprint someone else s’forim.

However, there is a major difference between commercial and personal use. When someone reprints a shas, they are selling something that the selling rights belong to someone else. But to copy from a sefer to put in your notes, or even to copy it completely and put it in your house, does not cause the owner any loss. You see all the time in the car industry. Replica Ferraris and other cars where the owner had replicated every detail of the car for 1/4 of the price. In legal terms, copying intellectual property for personal use is legal under the “Fair Use” laws.

Just please answer me a question (or two) to let me see how you think: If I decided to copy, stroke for stroke, color for color, and make an exact replica of the $120 million painting, “The Scream” to put on my wall, if someone had a copyright on it, would you consider me a “stealer” and obligated to pay the rights holder $120 million? Also, would it be illegal to sing Yaakov Shwekey’s brand new song on my shabbos table, if I was able to sing it perfectly, note for note?

Here is R’ Belsky’s teshuva; I say no more:

DOWNLOADING AND COPYING MUSIC

QUESTION 76: DOWNLOADING AND COPYING MUSIC

QUESTIONER

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.

Source: http://www.torah.org/learning/honesty/class64.html

For additional information see links on http://www.mostlymusic.com/help/view/index/cat/9/

@uneeq good point @ hello99 i appreciate you fulfilling my request for the mareh mekomos

There are two distinct points here. I am discussing an Issur Gezel, which obviously requires the victim to have had ownership. Hence, I am citing the numerous Poskim who rule that there is ownership of ideas. Once we accept that the accepted Halacha and vast majority of Poskim accept intellectual property, it is little different than the theft of any other possession. However, there are some slight differences, as I mentioned previously regarding inheritance. I cannot steal you object even if I would not have spent money to purchase it otherwise.

However, this argument is absolutely irrelevant to the prohibition of Gezel, and if there is Halachic ownership of intangible ideas, this Heter is totally spurious.

I hope this answers your well thought-out question.

jbaldy22: you’re welcome. After you look them up, let me know what you think.

uneeq: I do not know if your first point is true that “If I was to change a music file in any way, by manipulating the bits that compose the song, I technically haven’t stolen anything. So simply by converting to MP3 format to store on iTunes I would be complying with copyright laws” nor am I convinced that it is relevant Hilchos Gezeila. Regardless, most people are copying music as-is, so your Limud Zechus is irrelevant.

Regarding your second point, Gezel is taking someone else’s property without permission. Even if the value of the theft is less thana Peruta, the Issur is still d’Oraisa. Anyways, it’s not my Chiddush. As I cited previously, Reb Moshe, Rav Elyashiv, Rav Vozner and Minchas Yitzchok all forbade copying tapes based on this logic. Your issue is with them, not with me.

@hello99 what if an album is not being sold in mp3 format at all – i would think this might change things (see my thread about the latest move by sameach). this may have an effect on massig gvul because it may not be considered the same product. unfortunately i did not get a chance to look through ur mareh mikomos yet but i hope to do so soon.

derszoger: great, so you have Rabbi Leff and a Rabbi Shapiro against the whole list I cited.

I’m not saying that no one permits it, but would you want to rely on a Get that the vast majority of Poskim hold is Passul???

hello99: I can find you a whole list of poskim who hold cholov stam is treif. Are you going to stop advising people they can rely on Rav Moshe as a result? I can list you who paskens artificial insemination leads to mamzeirus. Must everyone follow the most stringent opinion despite those poskim who hold otherwise? Rav’s Leff and Shapiro aren’t unique in this position. There is no reason people can’t follow their shitta. Even IF it is a minority opinion, the world isn’t required to universally disregard a minority opinion to follow a ruling that has more contemporary poskim. And when being mlamed zchus ex post facto, we certainly can ascribe their actions to being in adherence to the shittas that are permissive.

derszoger: “being mlamed zchus ex post facto”

So now you admit that the only Heter is b’Dieved?

@yitayningwut i think the op’s original question was not necc the proper way to ask it but that does not make this thread a chillul hashem as there were some very good halachic points that were raised and i for one became much more educated on this matter as a result of this – unless u assume that discussing halacha in a public forum is a chillul hashem in which case there is not much i can say. also discussing something that is illegal according to american law’s status in halacha is a chillul hashem? since when?

Sam: No, not at all. I’ve provided examples of a subset of contemporary poskim who will today advise you it is permitted to copy in many, but not all, circumstances. They are 100% reliable and legitimate psak din that can be someach on. (I’m also a bit surprised that you of all people would question that, considering your previously stated acceptance of really really shvach mo positions that go way out of the mainstream.)

Whatever. I made my point. If you want to have no sechel that’s your prerogative.

derszoger: Frankly, I’d bet that if one really looks hard, he could find a “subset of contemporary poskim” to permit virtually anything. When people try to base Halacha on attempting to justify and validate their personal weaknesses, we have essentially adopted conservative judaism.

Hello99: I agree to your premise based on many poskim that there is “ownership” of ideas. But I do not accept that you understand logically WHY you would be oiver on gezel. Just because you have ownership over something, doesn’t make anything in this case “stolen”. There was nothing taken, nothing to return, no loss applied to the victim. By the same logic that you still haven’t explained, it would be assur to listen to music being played on someone else’s speaker, because at the end of the day, you don’t own the music, Shwekey or MBD does.

Also, you assume that over here there would an Issur gezel because even something worth less than a pruta you would be oiver on. I disagree, because the pruta is only an amount to be chayav ben adam lechavero, and anything less is not. But that doesn’t mean that something less than a pruta has no value at all, rather anything less than a pruta has value and is thereby considered gezel and you are thereby oiver on gezel, but the punishment for it is unenforceable. By music, you did not steal anything of value, not even less than a pruta, as anyways you would have never purchased it, hence you weren’t oiver on gezel. According to your logic, if someone was able to patent oxygen for breathing, we would all have to suffocate ourselves if stealing was a hereg ve’al ya’avor.

derszoger: “Frankly, I am a bit shocked you implied Rav Leff and the other poskim are “conservative””

You misinterpret me, intentionally or otherwise. My intent was that by shopping around for a Rav who will condone your vices makes you akin to conservative.

Ders: I’m waiting. Please quote me doing one of the two things you accused me of.

derszoger: First you rudely demand I source my claim that Rav Elyashiv forbids copying music, then when I do so you ignore it and refuse to do the same for your claim to the contrary.

Do you have any credibility?

“as he understood Rav Elyashev. It was not Rav Elyashev himself giving his position”

??? ?? ??????

Ders: How about you cite one of my posts where I hold of “shvach MO Shittas that go way out of mainstream”, whatever that means? Or wher I reinterpret a Halachah to sound nicer to women, whatever that means? And until you do either, please stop with the thinly veiled personal attacks on me. Thank you.

As an aside, there is a single guy responsible for 90% of the pirated frum music found on the internet. He goes by the name of The_Pirate_Rebbe.

No, that is a mischarecterization. I would venture that the majority of poskim and gedolim are mattir. But I will not engage in a name-rattling contest with you, because which side has a majority is secondary and almost irrelevant. You just need to follow your own posek. And I’ve said all along, from my very first comment on this thread, that it is a shaila and there are two differing opinions. So, yes, absolutely one must ask a shaila first. As I’ve repeatedly stated, even according to the mattirim it is only permissible if you would have not otherwise made the purchase. That’s what I’ve indicated all along.

As far as Hasagas Gvul vs. Gezel is concerned, according to most of BOTH those poskim who permit and those that don’t permit copying — including, most notably, Rav Belsky shlita — it is only hasagas gvul and definitely not gezel. Remember, even according to the mattirim it is HG if you would have otherwise purchased it. And according to those who forbid, mostly, do so on the grounds of HG not gezel. I also think in many of the names you earlier rattled off, you were not faithful to their basis or reasoning. You have not presented any halachic svara from yourself or from any of the poskim WHY or HOW it is halachicly gezel mamish. You simply provided quotations or paraphrasing of one or two poskim who used the term gezel in this regard. Without citing the reasoning for reaching that conclusion. I suspect that even in those cases they may have used the term gezel simply as a euphomism for their opinion of it being assur. It is entirely conceivable and reasonable for the term gezel to be used euphomistically even in a classic case of hasagas gvul.

derszoger: “I also think in many of the names you earlier rattled off, you were not faithful to their basis or reasoning”

Do you have any basis for accusing me of “unfaithfulness” or you merely wish it to be so?

Ders: I’m sorry. I didn’t realize that explaining Shittos that Frum Jews hold by is “defending the indefensible”. It’s nice to know that when I quote the Mekoros or R’ Schachter that it creates some sort of P’gam because you have decided it’s an indefensible position. (I don’t think I ever specifically spoke here about Gemara at Stern, but I don’t see why that wouldn’t fall under the Prishah; as far as I know they’re not mandatory). And I quoted R’ Schachter as having said that about Rabbi Lamm, which may have been inaccurate. That quote may have been from R’ Soloveitchik or someone else in charge (I heard it B’sheim R’ Schachter but I’ve since been informed that it was someone else).

And it’s interesting that you mention that quote of mine. That discussion was closed before you started posting in this forum. (In a possibly unrelated note, why can’t I see your profile?)