Respecting Intellectual Property Rights

  • Living The Halachic Process
  • Part 2
  • Rabbi Daniel Mann
Question:
I would like to make copies of tapes for my school and lend them to students. What are the halachic considerations regarding the laws of copyrights of tapes, disks, pictures, etc.?
Answer:

We are glad that you ask this type of question rather than just assume that what is easier is permissible.
Some halachic authorities question whether there is a halachic category that could prevent one from infringing on copyright laws. After all, one who buys an object can ostensibly use it for whatever he wants. However, even according to this approach, in many cases, mentchlechkeit (decency) and the welfare of society dictate that people respect the rights of those who invested their time, energy, resources, and talents to produce a product. Many or most poskim accept the approach spelled out by Rav Zalman Nechemia Goldberg in Techumin.[1] He agrees that it is unfeasible to say that a standard sale was done on condition that misuse nullifies the sale, because that needs to be stipulated in a special way. Yet, he posits that there is still a halachic problem.
One can sell something with a shiyur, which means that he can retain certain rights. Thus, he can sell a tape and reserve his right as owner to forbid others to use his tape for certain uses, e.g., various means of copying its contents. Although the classic cases of shiyur involve original owners who want to continue using the object at certain times, Rav Goldberg explains that one can also reserve the right to forbid the buyer to use the object in specific ways. Rav Goldberg has other objections, which are beyond the scope of this answer. Others talk about the issue of dina d’malchuta dina (the law of the land is the law), which applies in most cases.[2] This is especially so when the recipients of the copies are less likely to buy an original because they have access to a copy.

** Notes:
[1]
VI, pp. 185-207.

[2]
See HaMachsev L’Or HaHalacha 5.

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