Tzipiyah.com

Property Law

While all the other approaches deal with the rights of intellectual property through other areas of law, Rabbi Zalman Nechemia Goldberg[1] advanced a theory of intellectual property from within the law of property. Through an analysis of the nature of property law in the eyes of Talmudic scholars, Rabbi Goldberg tried to define a way to protect the interests of intellectual property towards an intangible. He bases his theory on the legal concept of “Shiur” (retention). According to Talmudic Law, it is possible for someone to sell an object while retaining some of the rights over the sold objects. The example in the Talmud[2] deals with the sale of an animal in which the seller wishes to retain the shearing and offspring of the animals he sold. While the actual animal becomes the sole property of the new owner, the new owner is limited in his ownership by the fact that the previous owner retained the rights to the shearing and offspring. Rabbi Goldberg posits that the same can be true with the sale of cassette tapes. The seller can decide to retain the right to copy the cassette. Therefore, according to this perspective, the buyer will get all the rights a normal buyer gets but will not have the right to copy the cassette. If he does copy the cassette, he is committing an act of theft since he is contravening with the right of property of the seller.

Rabbi Goldberg himself recognizes two major shortcomings to his approach. Firstly, for this approach to be valid, the retention clause must be clearly stated on the cassette. It must not be ambiguous. Rabbi Goldberg states that the clause must clearly state that the actual sale is being limited and not merely prohibit copying the cassette. Secondly, Rabbi Goldberg concedes that his approach will not work on an already copied version of a cassette. Therefore, after one person broke the law, others can copy from his version since there will be no retention clause on his copy of the cassette. He, however, argues that these problems can be solved through a combination with the other approaches analyzed in this paper.

Rabbi Naftali Bar Ilan[3] disagrees with Rabbi Goldberg and writes that it is not possible to retain an intangible[4]. The law of retention only applies to tangibles. Rather, Rabbi Bar Ilan tries to create a protection of the author’s rights under the concept of a conditional sale (Tnai)[5]. A sale can be made conditional to the agreement of the buyer not to copy the object he is buying.

Even according to Rabbi Bar Ilan, the two limitations to Rabbi Goldberg’s approach still apply. The rights of intellectual property will not be properly preserved. While these two approaches deal with the law of property and the law of sale, they do not address the issue of intellectual property substantively but rather try to protect the interest of the seller through other aspects of property law. This creates the possibility of many cases under which the rights of intellectual property would not be protected.

[1] Supra Note 22.

[2] Babylonian Talmud, Bava Metiziah, 34a.

[3] Rabbi Naftali Bar Ilan, Techumin, Volume 7, (5746), pp. 360-380

[4] Shulchan Aruch, Choshen Mishpat, Siman 212 and the Commentary of the SMA

[5] Babylonian Talmud, Kiddushin, 49a.

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.

History of Intellectual Property in Jewish Law

The first appearance of principles related to intellectual property came in the form of Rabbanic Approbations (Haskamot). These Haskamot served two purposes. First, they served as a “seal of approval” as to the validity of the person’s work. Second, they would serve as a ban against publishing another version of this work.[1] According to Rabbi Moshe Sofer (Chatam Sofer)[2], the first ban which served as a prototype to all future bans was written by Rabbi Moshe Isserlis (the Rama)[3]. The issue at stake was that after a certain edition of the Mishnei Torah, a work by Maimonides, came out from a first publisher, a second publisher brought out an edition which was priced much lower. The Rama argued that this went against the principles of undue competition, taking an approach to the protection of intellectual property rights which we will be analyzing in details further on. This was the haskama which started a wave of haskamot for the works of different authors.

The Chatam Sofer[4] argues that although the Rama mentioned the concept of undue competition as the reason for the ban, the real reason is that if publishing was not controlled, many publishers would retire from this business since it would not be profitable and this would hurt the publishing of religious texts. The bans were thus, in his opinion, used as a protection for the study of Torah. We can see clearly from the Chatam Sofer’s argument that, although these haskamot were later used as a source of rights for intellectual property in Halacha, the intent of the Rabbis at this time was not to grant rights to authors but rather to encourage the publishing of religious texts. This, however, helped paint the historical background through which the rabbis started discussing the integration of intellectual property into halacha.

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] Rabbi Israel Shneider, “Jewish Law and Copyright” (1991) JHCS No. XXI.

[2] Rabbi Moshe Sofer, Responsa Chatam Sofer, Choshen Mishpat no. 41.

[3] Rabbi Moshe Isserles, Responsa, no. 10.

[4] Supra note 5 at Vol.6, no.57.

Technological advancements have constantly challenged the relevance of legal systems to the modern world. With each technological advancement come new legal problems which had not been addressed by previous generations of legislators and legal scholars. For this reason, legal systems are in constant evolution. However, it is not always simple to bring in previously foreign concepts into an already existing legal system without sacrificing its coherence.

With the invention of the printing press, people now had the possibility of copying works in big numbers. This new reality introduced the question of intellectual property in all major legal system. Each legal system had to grapple with the difficulty of introducing this new and previously non existing legal concept. This was especially hard in areas governed by the codified system of Civil Law in which judges can only play a minor role to assist the evolution of the law and new concepts are only introduced through new legislation. If this reality proved difficult for such systems, then, a fortiori, one could expect it to be even more difficult for the normative system of Talmudic Law where the law is considered divine. Can a new concept be introduced into a divine set of rules? Is it possible for human beings to legislate a completely foreign concept into normative Talmudic law?

This work will deal primarily with the various attempts at introducing the concept of intellectual property within the framework of Talmudic Law. We will analyze the legal positions of different authorities on the subjects and the different approaches each took to integrate this subject into Talmudic Law as well as the practical differences which arise from their choice of approach.

Conflicting Perspectives on Legal Innovations

In order to properly understand the reasoning of the various scholars, we must first define their frame of mind properly participate in their thought process. There are two ways one can interpret the silence of Halacha to the concept of intellectual property. On the one hand, one can argue that the reason for this omission is simply the produce of the time period in which these issues arise. Since intellectual property was mostly irrelevant until the appearance of tools which facilitate copying, one can argue that it was simply not necessary for Halacha to discuss such issues before that time. According to this approach, it is quite possible that Talmudic Law would have integrated the concept of intellectual property if it was relevant in the time of the Talmud. On the other hand, some might argue that the urge to integrate intellectual property into Halacha is simply through the influence of other legal systems, based on non-Jewish values, and does not have its place in the normative system of Jewish Law. By omitting intellectual property, Halacha was purposely giving the message that such principle is not important in the eyes of Jewish Law.

Both of these approaches were taken by the various sages which grappled with the issue of intellectual property. The first approach was, for example, adopted by Rabbi Shaoul Netanzon in his responsa “Shoel U’Meshiv” in which he writes:

It is obvious that when an author prints a new book and merits that his words are accepted by the world, he has rights to it forever. Regardless, if you print something new or develop a new technique, someone else is not permitted to use it without permission. And it is known that Rabbi Abraham Jacob of Harobshob, who performed arithmetic with a machine all his life received compensation from the Kierow (government) in Warsaw. And our complete Torah should not be like their meaningless conversations, and this is a matter that the intellect rejects, and it is a regular occurrence that the printer of a composition retains the rights.[1]

These comments of Rabbi Shaoul Netanzon are not legal in nature but rather philosophical. Yet, they have strong legal ramifications. To him, it is unthinkable that Halacha would not be able to give the rights of intellectual property since this would be an immoral position and such a position cannot be espoused by Jewish Law. Therefore, his approach will lead him towards finding a way to coherently integrate this concept into the system of Jewish Law.

While most of the Jewish scholars have taken Rabbi Netanzon’s approach[2], some have approached the issue of intellectual property as a foreign concept which should not be integrated into Jewish Law. Rabbi Shmuel David Munk argued that intellectual property was nothing more than an error committed by the nations which came from the “politeness of the gentile nations”[3]. He saw no value in integrating such concepts in Jewish Law and even saw it as an attempt to change Jewish Law to match the warped moral values of the non-Jewish world. This approach is based on a strict interpretation of Jewish Law and a disdain for legal activism and evolution. This very conservative approach would lead those who espouse this view to refuse to introduce any new concept into the Halachic framework, including intellectual property.

Therefore, there are two distinct conceptual approaches to the modern question of intellectual property which have direct legal consequences. Rabbi Munk’s approach would lead to a hasty conclusion against the integration of intellectual property in Jewish Law. Since most scholars have followed Rabbi Netanzon’s approach, our analysis will be based on his approach.

[1] Rabbi Shaoul Neanzon, Shoel U’Meshiv, Volume 1, at Siman 40.

[2] Rabbi Chaim Navon, “Copyright Law”, online: VBM

[3] Rabbi Shmuel David Munk, Peat Sade’ha Responsa, at Siman 158.