Shabbat Parashat R'ei 5772

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

Case: The plaintiff (=pl) is an amateur photographer, who often places his works on the internet, on 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, and 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 the first installment we dealt with the halachic basis for intellectual property rights. Now we will deal with the ability to levy payment from def.]

There are three reasons to justify allowing large payments for infringement of intellectual property rights without proof of damage: 1) It is very easy to infringe on these rights. Without fear of sizable punitive payment, it will be worthwhile to continue infringement. 2) It would not be worthwhile for those who are damaged to initiate legislation, again encouraging infringement. 3) There is little possibility for the government to prosecute criminally, and, therefore, the citizen has to play the role of “policeman.”

Is dina d’malchuta (law of the land) grounds for extracting payment? The K’tzot Hachoshen says that when the matter that is legislated is in line with ethics, dina d’malchuta is binding. It is clear that if the Rabbis of Israel were empowered to regulate these matters, they would institute intellectual property laws with sanctions for non-compliance, as indeed was common in the rabbinic world in regard to books. Nowadays the protections have another dimension: they encourage people to publicize their works and, in that way, enrich society.

How can one levy penalty payments when the halacha is that, these days, beit din cannot judge matters of penalties (Shuchan Aruch, Choshen Mishpat 1:1)? The Rama (CM 1:5) says that the limitation on judging penalty payments is in regard to penalties imposed by the Torah, but the Rabbis can create binding penalties as they find necessary. The S’ma (2:2) says that this can be done either if one commits transgressions on a regular basis or if the matter is one where the public is overly lax. In our case, the Law of Intellectual Property Rights comes to solve a problem where society is indeed overly lax.

In deciding the appropriate amount to penalize def, beit din considered the following factors. On one hand, def took steps to minimize the possibility of future infractions, and pl was not damaged at all. On the other hand, pl was inconvenienced by having to litigate and there is a need for a penalty that will have some deterrent effect. Beit din obligated def to pay 3,500 shekels.

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