Shabbat Parashat Eikev 5772

P'ninat Mishpat: Infringement on Intellectual Property Rights – part I

Case: The plaintiff (=pl) is an amateur photographer, who often places his works on the internet, in a website called Wikimedia Commons, in which the public is permitted to use the materials, with two conditions: they must acknowledge the contributor of the art; they must display the site’s license information so that the public knows that they too can use the material under the same conditions. The defendant (=def) is a business that, when using the site, usually mentions the name of the contributor. However, this is the second time that def has not credited pl. The first time, they settled on a payment of hundreds of shekels. This time, pl is asking for 40,000 shekels to teach def to take its copyright responsibilities seriously. Israeli law allows the courts to levy fines of up to 100,000 shekels for copyright violation without proof of damage.

Ruling: [In this first installment we will deal with the Jewish/halachic basis for intellectual property rights.]

The ethical requirement to credit the creator of an idea has several sources, and this has an impact on the legal status as well. Yirmiya takes false prophets to task for incorporating the prophecies of true prophets into their false prophecies without crediting them (Yirmiya 23:30), calling them thieves. The midrash (Tanchuma, Bamidbar 27) says: “The pasuk says about one who does not mention the name of the initiator: ‘Do not steal from a poor person, for he is poor’” (Mishlei 22:22). When one hears the initiator’s idea through other people, he should credit all the people who passed the information on. Mentioning the source of a statement is included in the means of acquiring Torah wisdom (Avot 6:6). Finally, one who says things in the name of another brings salvation to the world, as we learn from Esther, who gave information in the name of Mordechai (Megilla 15a).

An article in Mishpetei Aretz summarizes the possible bases for enforcing intellectual property rights as follows. The Shoel U’Meishiv (II, CM 24) seems to view one who republishes that which someone else wrote without the author’s permission as theft. Rav Moshe Feinstein (Orach Chayim IV:40) says the same about copying one tape from another. Rav Zalman Nechemia Goldberg (see Techumin VI, p. 196) says that it is possible for one who sold a book, tape, etc. to sell with restrictions on the use of the object.

The Noda B’Yehuda II, CM:24 says that one who uses another’s printing template has to pay due to the benefit which he received from another person. Based on this, Rav Goldberg says that who uses another’s creation has to pay due to the benefit.

Rav Ovadia Yosef (Yabia Omer VII, CM 9) says that intellectual property rights are binding based on the law of the land or the agreement of the authors and rabbis who traditionally upheld their rights. The article in Mishpetei Aretz finds the latter categorization of the law of the land to be the most likely. It is difficult to consider taking an idea as theft when no object, but just an ethereal idea, is being improperly used.

[Next time we discuss payment for violation of intellectual property rights.]

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