Beit Yitzchok¹⁹ approaches the issue from an entirely different angle. Even if we are to assume, he writes, that Torah law doesn't explicitly award exclusive propietary rights to an author, it nevertheless enjoins us to recognize and obey "the law of the land."²⁰ Consequently, all authorship rights rights provided to an author under civil law are recognized by Torah law as valid and binding. Writing in the late 19th century, Rabbi Yitzchok Schmelkes states that our country²¹ prohibits the copying of original works of authorship. One hundred years later, on these American shores, the identical situation exists. Statutory protection of an author's work(s) is guaranteed by the Copyright Act of 1976 (Pub. L. No. 94-533, 90 Stat. 2541). For this reason any infringement of civil copyright law would be, by definition, an infringement upon Torah law as well.

In truth, the validity of this argument hinges upon a dispute among the medieval commentators as to the scope of "Dina De'Malchuta Dina" ("the law of the land is law"). Rabbi Baruch ben Yitzchak²² cites the opinion of his teachers, in the name of the French Tosafists, that "the law of the land" is binding to the extent that it applies to the government's right to levy and collect taxes. However, legislation enacted by the government for the benefit of its citizens, without any direct profit for the government, cannot be considered binding. Hence, copyright legislation, whose objective is the protection of the public, is not included within the parameters of Dina De'Malchuta Dina. The Ramban,²³ however, disputes this point and rules that all just and fair legislation enacted by the government falls under the category of "the law of the land" and, consequently, is legally binding. The Shach,²⁴ citing a host of codifiers who employ the principle of Dina De'Malchulta Dina in regard to legislation which does not directly serve to profit the government, rules that the halacha is in accordance with the Ramban.

A note of caution is certainly in order: the issue of interaction between halacha and civil law is complex. Indeed, there are times when the civil law, in conflict with the halacha, is not binding.²⁵ However, it is Rabbi Schmelke's opinion and subsequently also that of Rabbi Ezra Batzri,²⁶ that copyright legislation, whose thrust is the preservation of social justice and fairness, is recognized by Torah law as binding.

Shiur

Rabbi Nechemia Zalman Goldberg advances a novel theory to serve as the basis for the proprietary rights of an author,²⁷ based upon the legal concept of "Shiur" (retention). It is possible for a seller to sell an item to a purchaser, yet to retain certain aspects of ownership for himself. For example, the Talmud²⁸ speaks of one who sells an animal, yet retains for himself its shearings and offspring. The purchaser is entitled to do with the animal whatever he wishes. Nevertheless, the purchaser's ownership is limited. In regard to shearings and offspring, the animal is considered as if it still belongs to the seller.

Based on this principle, Rabbi Goldberg posits that one who sells a cassette tape can stipulate that the purchaser is entitled to all usages of the tape but one - the right to copy it. Since this right was retained by the seller, the purchaser who copies the tape without the consent of the seller has committed an act of theft, and, as such, is obliged to make restitution to the owner of the reproduction rights of the tape -- namely, the seller.²⁹

Rabbi Goldberg writes, though, that this approach has two major limitations. Firstly, this line of reasoning is valid only if it is specifically stipulated that the sale is of a limited nature, with all rights of copying retained by the seller. If, however, the seller merely states that reproduction or copying of the work is prohibited, without specifying that the scope of the sale is limited, it follows that one who copies without consent is not guilty of theft and is not liable to make restitution to the owner. Secondly, this approach protects only against the primary reproduction of an original work. However, once a reproduction has been made, the new copy certainly cannot be construed as belonging partially to the seller. Consequently, one who copies a copy is certainly not guilty of theft, and by the same token, not liable to make restitution. Rabbi Goldberg does concede, however, that even in these two situations, grounds for copyright protection may be found in the other principles which have already been discussed.

Minor Alterations

Rabbi Joseph Shaul Nathanson was asked whether one who reproduces an original work, but makes minor additions or deletions, is in violation of the copyright legislation.³⁰ He responded that the argument to permit such a practice is "laughable," and consequently, one who attempts to bypass the copyright restrictions by making insignificant changes is still in violation of the halacha. To permit the circumvention of the copyright laws by insignificant alterations of the original material, he claims, would render these safeguards ineffective and defeat the purpose of the enactment.

Photocopied Handouts

Rabbi Shmuel Wozner addresses the issue whether a teacher is permitted to photostat one article or essay, out of an entire publication, for classroom Ose.³¹ He rules that the copyright restrictions would not apply in this case. Although Rabbi Nathanson's extended definition of the copyright concept includes reproductions of an entire work, with but minor changes, it does not include the copying of a mere fraction of a publication. Consequently, a teacher who uses these photostated handouts is not in infringement of the author's rights. He does add, however, that the copies should not be circulated to the public but rather used only within the classroom setting. Rabbi Wozner comments that the teacher who uses photocopied material for classroom usage is not only well within his legal rights, but, in addition, has performed a mitzvah by sparing the students the additional expense of purchasing books unnecessarily!

Sometimes it may happen that one Posek's "Mitzvah" is another Posek's "Aveirah". Rabbi Yaakov Blau questions Rabbi Wozner's conclusion and advances that opinion that although a teacher would be permitted to copy an article for personal use, it would be prohibited to copy an article for classroom distribution.³² In the opinion of this writer, this dispute might hinge upon the aforementioned grounds for halachic protection of copyright. If the halachic legitimacy of copyright is based upon the statutory protection provided by civil law, it stands to reason that any exclusions which might exist in the civil law provisions will, similarly, be recognized by halacha as valid. Since the Copyright Act codifies the so-called "doctrine of fair use" as a limitation on the rights of copyright holders, then halacha too will award the public this benefit. If, however, there exists an independent halachic interdiction against the pirating of literary creation, then, it can be argued, this prohibition extends beyond the reach of the civil law.

Conclusion

Based on the above, it is clear that sufficient halachic grounds exist to protect an author's proprietary interest in his work. Indeed, Rabbi Moshe Feinstein³³ rules unequivocally that one is prohibited to copy a Torah (cassette) tape without the explicit consent of its creator. From the phrasing of the responsum, it cannot be determined which line of reasoning was employed by Rabbi Feinstein. He adds, however that one who illegally copies a tape has committed a form of theft.

Obviously, this essay does not claim to be a comprehensive study of all the ramifications of copyright law within the context of halacha. Nevertheless, it may serve as a guideline to the many questions which still require definitive rulings.

Copyright © 1997-2008 by Ira Kasdan.
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