Tzipiyah.com

Dinei DeMalchuta – The Law of the Land

All the previous approaches have tried to find concepts within Talmudic Law which can be used to protect the rights of intellectual property. While all these approaches have successfully protected part of those rights, they all had shortcomings. The following approaches differ from the previous ones. Unlike the previous ones, they will use Talmudic concepts which allow the integration of foreign concepts within Talmudic law. These approaches recognize that original Talmudic Law, substantively, does not protect the rights of intellectual property but still believe these rights are to be protected within Jewish Law through concepts which allow for the expansion of Talmudic Law.

The first of those approaches relies on the concept of Dinei Demalchuta Dina – The Law of the Kingdom is the Law. This principle was stated by Shmuel in many different places in the Talmud[1]. According to this principle, the laws enacted by governments are binding on the Jews living on their territory even when they differ from the laws of Torah. This law does not apply to all areas of law. If this was the case, there would be no more relevance to Jewish Law other than mere rituals[2]. For example, the Talmud states[3] that the law of the land does not apply in cases of Issur Veheter (that which is permitted and that which if forbidden- laws pertaining to daily living). Rather, it applies to monetary cases. Rabbi Baruch Ben Yitzchak[4] states in the name of the French Tosafists that this concept only applies to the right of a government to collect taxes. However, the Ramban[5] disagrees and explains that this principle can be applied to all fair legislation from the government. The Shach[6], a commentary on the Shulchan Aruch, rules according to the Ramban. In another place, he explained that the concept of Dinei Demalchuta Dina only applies in cases which are not already covered by Talmudic Law[7].

According to this conclusion, it seems the concept of Dinei Demalchuta Dina could be applied to questions of intellectual property. In fact, Rabbi Yitzchok Schmelkes[8] ruled explicitly that this concept can be applied in the case of intellectual property. Based on this principle, in the end of the 19th century, Rabbi Schmelkes prohibited the copying of original works. Rabbi Ezra Batzri[9] came to the same conclusion. According to this principle, the law of the land would also apply today and every Halachic question on intellectual property could be referred to the law of the land.

This reliance on the law of the land can be used to properly integrate the concept of intellectual property into Jewish Law. However, it is not satisfying to those who believe in the normative nature of Jewish Law and who see in intellectual property something which should be protected in traditional Jewish Law. The use of foreign concepts seems to indicate that incompleteness of Jewish Law[10]. Also, while this is not the subject of this paper, there are some unsolved problems with the use of Dine Demalchuta Dina. For example, it is unclear whether or not such a concept can apply in the State of Israel in which Jews now have sovereignty. While the scope of the protection for intellectual property rights is greater through this approach than any other approach previously seen, its use can be dissatisfying, and in some cases questionable.

[1] Babylonian Talmud, Baba Kama, 113a. and Baba Batra, 54b.and Nedarim, 28a. and Gittin, 20b.

[2] Hershel Shechter, “Dina De’Malchusa Dina” JHCS, Number 1.

[3] Babylonian Talmud, Gittin, 10b.

[4] Sefer HaTerumot. 46:8.

[5] Ibid.

[6] Yoreh Deah at Siman 165:8.

[7] Ibid at 73:39.

[8] Responsa, Yoreh Deah, Volume 2, no. 75.

[9] Supra at Note 22.

[10] Supra at Note 2.

This is a long essay I wrote that might be of interest to you. It analyzes the place of Intellectual Property (and Copyright Law) in Halacha and ends with a discussion of relevant questions such as Downloading Music and Burning CDs. I will be posting it part by part. It’s quite long but will be rewarding to those who follow it. This was Part 1 and Part 2 and Part 3. Now, this is part 4.

The Laws of Enjoyment

Another approach which has been used in order to integrate the rights of intellectual property in Jewish Law is based on a unique Talmudic concept of the laws of enjoyment. The Shulachan Aruch[1] rules according to the Talmud[2] which states that if a person who enjoys a unilateral benefit from someone’s property without causing him any loss (zeh neheneh v’zeh lo chaser), he is not liable for having used that property without permission. However, if a person enjoys such benefit by causing loss to the original owner (zeh neheneh v’zeh chaser), he is then liable for such a loss.

Rabbi Yechezkel Landau, in his famous book called “Nodah B’Yehuda”, integrated this concept into the discussion on intellectual property[3]. The case which was brought to Rabbi Landau was, this time, truly a case of intellectual property. A certain scholar had authored a commentary on the Talmud and paid a publisher to print it with a certain letter arrangement. After finishing the printing of the commentated Talmud, the publisher kept the letter arrangement and printed more copies, without the commentary, in order to sell them for his own personal profit. The scholar then claimed that he owned a share in the arrangement of the letters, a right in this intellectual property. The publisher argued that since the actual letters belonged to him, the arrangement could not be owned. A deeper look at their argument can reveal that they were really arguing on the existence of intangible rights of intellectual property within Jewish Law.

Rabbi Landau ruled that when an author pays a publisher for a certain letter arrangement, he retains the rights to this arrangement even after the job has been completed and has rights to any reprinting which uses this typesetting:

He [the printer] has caused a great loss [to the author], for if the printer had not published these [second] books, there would have been a great demand for Reuven’s [the author's] work [which included the Talmudic text]… Now, that Shimon [the printer] has printed [his volumes], these volumes which are cheap and in great supply will reduce the demand for Reuven’s [the author's] work. Since the printer has caused the author a financial loss, we obligate him to pay all that he benefited from the author’s share in the typeset arrangement.[4]

If this approach is accurate for the simple arrangement of letters in the printing of an already existing work, then, a fortiori, it should be valid for the rights of an author to his creation[5]. It is important to note that while the question brought to Rabbi Landau was one of intellectual property, his answer was given in the realm of the laws of enjoyment. He did not take the step to assign the status of property to the intangible being discussed but rather simply compensated the author for the losses he would incur from the publisher’s actions, not for the use of his property.

Rabbi Malkiel Tannenbaum[6] discusses a similar case where an individual invented a certain type of medicine and worked hard to get a special license from the government to distribute it. Afterwards, someone copied his invention and even used his license to sell the copied version. Once again, this is a typical case of intellectual property with the second seller copying the first seller’s product. Rabbi Tannenbaum, in his responsa, tries to better define the principle of zeh neheneh v’zeh chaser. He first posits that in order to apply this principle, the offender needs to have used the first person’s actual property. According to such an understanding, Rabbi Tannenbaum explains that in the present case, the second seller could not be held liable since he never used the actual license of the first seller when making a copy. However, Rabbi Tannenbaum then rejects this understanding and explains that it is enough to have an indirect use of the person’s property, and in this case, the person indirectly used the license of the first seller by making a copy of it. This analysis of Rabbi Tannenbaum is important since it shows that Rabbi Tannenbaum does not associate any property rights to the intangible creation of the first seller. Rather, the only way to hold the second seller liable is through the indirect use of a tangible object. This is a clear distinction from the concept of intellectual property. It also has clear limitations because without the physical representation of this intangible, a person would not be able to get compensated for his losses.

Rabbi Tannenbaum continues to explain another important aspect of this approach. He explains that while one could be held liable for the indirect use of a person’s property, the liability is limited to a compensation for the person’s investment in the creation of the product. A court would not be able to hand down an injunction forbidding such indirect use. The distinction between this case and the case which was decided by Rabbi Landau is that in that case, the publisher had actually used the arrangement of letters and the use of property is not considered to be an indirect use of property but rather a direct use of property. In such a case, an injunction can be handed down[7]. However, in most intellectual property cases, the use of property is only indirect and the liability is therefore limited to mere compensation for his losses in the creation of the product. In other words, the second seller can continue selling his product even after the decision of the court as long as he compensates the first seller for his losses.

Rabbi Zalman Nechemia Goldberg[8] analyzed the responsa of Rabbi Landau. He first explained that his position is really subject to a disagreement between earlier decisionaries (Rabbi Yitzhak and Rabbenu Tam[9]). Still, he explained that according to Rav Landau’s position, the right of compensation was not limited to the use of a tangible object (whether directly or indirectly), but rather, by the fact that the plaintiff spent money in order to create his product. By spending money, the individual gains special rights towards his creation. In Rabbi Landau’s specific case, the author did not have any right of ownership to the actual letters. The tangible actually belonged to the publisher. Therefore, his rights stemmed from the fact that he spent money in order to have this specific positioning of letters. This considerably widens the scope of this approach towards the issue of intellectual property since it allows for compensation even where there has been no physical expression of the intangible towards which the person has rights of intellectual property.

The approach based on the law of enjoyment still has its shortcomings. This approach is not intrinsically based on the law of property. Rather, it is based on the loss which is incurred by the potential owner. Therefore, in a case where there has been no loss, there would be no compensation.
—————————————————–
NOTE: The footnotes are a bit off (especially the “Supras”) because I am splitting this essay in many parts, but I will list a full bibliography at the end of the paper.

[1] Shulchan Aruch, Choshen Mishpat, at Siman 363.

[2] Babylonian Talmud, Bava Kama, 20a.

[3] Nodah B’Yehudah, Volume 2, Choshen Mishpat, at no. 24.

[4] Ibid.

[5] Supra Note 4.

[6] Rabbi Malkiel Tannenbaum, Divrei Malkiel, Volume 3 at 157.

[7] Supra note 12.

[8] Rabbi Zalman Nechemia Goldberg, “Copying Tapes Without Permission”, Tchumim Volume 6.

[9] Cited by Tosafot at Babylonian Talmud, Ketubot, 98b.