3 page maximum (ca. 750 words) Read the responsum. Briefly articulate the main issue of the question asked. Summarize the decision of the council and analyze the arguments discussed for and against the decision. Be careful to note what kinds of sources are used as evidence for the decision and how they are used. Consider the response in terms of denominationalism: compare how an Orthodox rabbi might respond. Compare how a Reform rabbi might respond. Finally, what does this question and the various responses that you discuss reveal about defining Judaism?
intelllectual_property_responsum.pdf

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Intellectual Property: Can you steal it if you can’t touch it?
HM 203:1 2007
Rabbi Dr. Barry Leff
This responsum was approved by the CJLS on December 12, 2007 by a vote of
eighteen in favor, one opposed, and two abstaining (18-1-2). Members voting in
favor: Rabbis Kassel Abelson, Elliot Dorff, Jerome Epstein, Robert Fine, Baruch
Frydman-Kohl, Myron Geller, Susan Grossman, Reuven Hammer, Robert Harris, David
Hoffman, Adam Kligfeld, Alan Lucas, Aaron Mackler, Daniel Nevins, Philip Scheim, Jay
Stein, Loel Weiss, David Wise. Members voting against: Rabbi Paul Plotkin. Members
abstaining: Rabbis Pamela Barmash, and Elie Spitz.
Question: Is it stealing to copy or download music, videos, software, or other forms of
intellectual property without paying for it?
Many people who would never consider walking into a store and stealing something off
the shelf have no qualms whatsoever about copying a friend’s CD, DVD or software.
Even more prolific is the practice of swapping music files on peer-to-peer (“P2P”)
networks. Despite famous court cases against Napster and Grokster, and lawsuits
brought against individuals by the Recording Industry Association of America (RIAA),
millions of people continue to swap music and video files.
The laws of the United States (and nearly all other countries around the world) are clear
that such activity is illegal. So why do we need a teshuvah on the subject? Shouldn’t it
be enough to cite ‫ דינא דמלכותא דינא‬, the law of the land is the law, and leave it at that?
Many people view downloading or sharing music or video files as a form of victimless
crime. They argue no one is harmed, so they are not doing anything wrong. Therefore
this teshuvah is necessary to address the question beyond secular legality: is it ethically
wrong within a halakhic framework to download, swap, or otherwise use music, videos,
software, or other forms of intellectual property without paying? In places where secular
law may allow—or at least turns a blind eye to—copying intellectual property without
the author’s permission, would Jewish law still prohibit the practice?
Response: This responsum concludes that copying, downloading or otherwise using
music, videos, software or other forms of intellectual property such as patents or
trademarks without paying for them is theft, not only under secular law, but under
halakhah as well, and it is wrong for a Jew to engage in such behavior. The analysis will
be divided into the following sections:
1)
2)
3)
4)
5)
6)
Background and discussion of the problem
Status of intellectual property under secular law and ‫דינא דמלכותא דינא‬
The status of intellectual property under halakhah
Is it halakhically theft to steal something of small value from a large corporation?
Guidelines on the use of intellectual property for Jewish institutions
Conclusion
1
1
H.M. 28:1.2014
Rabbi Elliot N. Dorff and Marc Gary
Providing References for Schools or Jobs
This teshuvah was approved on April 30, 2014 by a vote of eighteen in favor, one against, and
two abstaining (18 – 1 – 1). Voting in favor: Rabbis Kassel Abelson, Aaron Alexander, Pamela
Barmash, David Booth, Elliot Dorff, Baruch Frydman-Kohl, Susan Grossman, Reuven Hammer,
Joshua Heller, David Hoffman, Jeremy Kalmanofsky, Jane Kanarek, Adam Kligfeld, Gail
Labovitz, Amy Levin, Daniel Nevins, Elie Spitz, and Loel Weiss. Voting against: Rabbi Paul
Plotkin. Abstaining: Rabbis Avram Reisner and Jay Stein.
Question: What norms govern giving oral or written references for schools or jobs?1
Answer:
At first blush, the answer to this question seems obvious: just tell the truth. After all, the
Torah itself demands that we ‫ר־ש ֶׁקר ִת ְּרחָ ק‬
ֶׁ ַ‫מ ְּדב‬,
ִ “Keep far from falsehood.”2 The prophet
Zechariah urges, ‫ת־רעֵ הּו‬
ֵ ֶׁ‫“ ַדבְּ רּו אֱ ֶׁמת ִאיש א‬Speak truth to one another,” and ‫וְּ הָ אֱ מֶׁ ת וְּ הַ ָשלוֹם אֱ הָ בּו‬,
“Love truth and peace.”3 In the Talmud, Rabbi Hanina declares, ‫ חותמו של הקדוש‬:‫אמר רבי חנינא‬
‫“ ברוך ־ הוא אמת‬The seal of the Holy Blessed One is truth”4– and we, after all, are supposed to
emulate God. So why is there any question here?
The Committee on Jewish Law and Standards of the Rabbinical Assembly provides guidance
in matters of halakhah for the Conservative movement. The individual rabbi, however, is the
authority for the interpretation and application of all matters of halakhah.
1
This responsum addresses an issue that has some parallels with the responsum on
whistleblowing by Rabbi Barry Leff, to which readers are referred: “Whistleblowing: The
Requirement to Report Employer Wrongdoing,”
http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/leff_w
histleblowing.pdf
2
Exodus 23:7.
3
Zechariah 8:16, 19.
4
B. Shabbat 55a; B. Yoma 69b; B. Sanhedrin 64a.
Issue 1. Background and discussion of the problem.
Copying of software and music is a rampant problem. The Business Software Alliance
estimates that worldwide 35% of all software is pirated – representing a cost to the
software industry of over $34 Billion. 1 In 2005, for every $2 worth of PC software
purchased legally, $1 worth was purchased illegally. While the problem is greater in
developing countries, even in America 22% of software in use is in the form of illegal
copies. 2 The 35% figure is an improvement over 2004, when it was estimated that 39%
of all software was illegally pirated. 3 This figure is actually a substantial improvement
over 1994, when the worldwide piracy rate reached 49%. 4 Alas, the improvement is
presumably not due to increasing public awareness and honesty; rather the improvement
presumably comes from improved countermeasures the industry has taken including
substantially improved copy protection and validation technology built into software.
The RIAA estimates that $4.2 billion in revenue is lost to the music industry because of
illegal copying and downloading of music. 5 The Seattle Post-Intelligencer estimates that
7 million households illegally download music. 6
The Motion Picture Association of America (MPAA) estimates that the motion picture
studios lost $6.1 billion to piracy in 2005. 7 The MPAA listed three different ways their
intellectual property was stolen. Of the $6.1 billion, $2.4 billion was lost to bootlegging
(people making and packaging, on a commercial basis, copies of movies, or using a
camcorder to record a movie in a theater and selling copies), $1.4 billion to illegal
personal copying (borrowing someone’s legitimate DVD or tape and making a copy) and
$2.3 billion to Internet piracy (uploading and downloading copies of movies and
exchanging these via the Internet). The person buying an illegal bootleg DVD may not
feel like he is stealing anything – he is just paying $4 for a DVD on a street corner,
instead of the $19 it would cost at Wal-Mart – but the loss to the movie studio is the
same.
1
Third Annual BSA and IDC Global Software Piracy Study, May 2006, p. 13. published online at
http://www.bsa.org/globalstudy/upload/2005%20Piracy%20Study%20-%20Official%20Version.pdf
2
Ibid.
3
Business Software Alliance website, http://www.bsa.org/usa/. Information was taken from their web site
May 3, 2004.
4
Ibid.
5
http://www.riaa.com/issues/piracy/default.asp
6
“Downloaders Face the Music as Record Industry Sues,” Seattle Post-Intelligencer, May 13, 2007,
available online at http://seattlepi.nwsource.com/local/315599_music14.html .
7
Press release, “MPAA Issues Data from Piracy Study,” May 3, 2006, available online at
http://www.mpaa.org/press_releases/2006_05_03lek.pdf
2
Three industries – software, music, film – and over $44 billion in revenue lost to various
forms of intellectual property theft. It should be acknowledged that these figures may be
“generous” as they come from industry sources. It is not surprising that the bulk of the
research available on such issues comes from those affected by it. However, these
figures do not include further losses to individuals and corporations from other forms of
intellectual property theft, such as photocopying copyrighted material, or one company
using another company’s proprietary technology without paying the appropriate licensing
fee. While there may be room to argue about the exact figure, there is no argument that
misappropriation of intellectual property is an enormous problem and cost to the business
community.
Why is intellectual property theft so rampant? Perhaps because many people have a hard
time seeing it as theft. Many people who would never walk into a store and slip a CD
into their pocket and walk out without paying have no problem doing effectively the
same thing by making a copy of a friend’s CD or downloading music files. Many people
who would never sneak into a movie theater to see a movie for free have no problem
doing the same thing via a computer.
When a person steals a physical object, like a CD, from a store he knows there was some
cost in producing that object. The theft seems concrete and real. The thief or would-be
thief knows that he is taking money out of the pocket of the owner of the store. However
when making an illegal copy, nothing is obviously being taken out of anyone’s pocket.
There is a big psychological difference between taking something out of someone’s
pocket and not paying something to a person who is entitled to the payment. “Lost
revenue” somehow does not seem to be the same thing as taking money away from
someone. Even though to the person losing the revenue it very well may seem to be the
same thing, as he may be counting on that revenue to feed his family.
The highest court of the land (the US Supreme Court) has acknowledged that making
illegal copies (copyright infringement) is not exactly the same as theft:
“The infringer invades a statutorily defined province guaranteed to the copyright
holder alone. But he does not assume physical control over the copyright; nor
does he wholly deprive its owner of its use. While one may colloquially link
infringement with some general notion of wrongful appropriation, infringement
plainly implicates a more complex set of property interests than does run-of-themill theft, conversion, or fraud.” 8
Another reason for the proliferation of piracy is that it is so easy. Making a photocopy of
a copyrighted book is also intellectual property theft – but it’s not quite as common
because it’s not so easy—it takes a lot of time at the copy machine to copy a book, and it
may cost as much in supplies as it would cost to buy the book. But making a copy of a
8
U.S. Supreme Court, DOWLING v. UNITED STATES, 473 U.S. 207 (1985), opinion written by Justice
Blackmun.
3
CD or a video is simple, and downloading files is literally “child’s play”—much of the
illegal copying and downloading in the music world is done by young people.
Yet another reason that piracy is so common is that the person doing the thievery never
encounters the person from whom he is stealing. If a person steals from a store, the
owner or employees are right there. When someone downloads a music file, the artist
(and record company) who are the victims are nowhere in sight. Not only that, the victim
of the crime does not even know that something has been stolen from him.
In addition to the other reasons, some people will rationalize the act of making illegal
copies by telling themselves they weren’t going to buy the object anyway – they would
instead have simply done without it, so they are not really taking anything away from
someone.
Some halakhic sources might seem to justify treating intellectual property lightly. For
example in the Shulhan Arukh it says ‫ וכן דבר שאין בו ממש אין קנין מועיל בו‬– that one cannot
acquire an object that does not have physical existence.9 If you can’t acquire it, it seems
obvious you can’t buy or sell it. If there is nothing to buy or sell, what is there to steal?
This feature of a ‫ דבר שאין בו ממש‬would seem to argue in favor of permitting unauthorized
usage of intellectual property. As will be demonstrated in the section regarding
intellectual property under halakhah, however, there are many arguments that favor
considering intellectual property as something that should be protected.
Despite all of the rationalizations that Intellectual Property pirates might use, the costs are
real, and the harm to businesses, individuals, and society is very real. The RIAA web site
lists several ways in which harm is done through music piracy: 10
9

Consumers lose out because the shortcut savings enjoyed by pirates drive up the
costs of legitimate product for everyone. The RIAA also points out that a
consumer who buys a pirated tape of CD will have no luck returning the product
with (sic) the quality is inferior or the product is defective, as it often is.

Honest retailers (who back up the products they sell) lose because they can’t
compete with the prices offered by illegal vendors. Less business means fewer
jobs, jobs often filled by young adults.

Record companies lose. Eighty-five percent of recordings released don’t even
generate enough revenue to cover their costs. Record companies depend heavily
on the profitable fifteen percent of recordings to subsidize the less profitable types
of music, to cover the costs of developing new artists, and to keep their businesses
operational. The thieves often don’t focus on the eighty-five percent; they go
straight to the top and steal the gold.
SA Hoshen Mishpat 203:1
http://www.riaa.com/issues/piracy/default.asp
10
4

Finally, and perhaps most importantly, the creative artists lose. Musicians,
singers, songwriters and producers don’t get the royalties and fees they’ve earned.
Virtually all artists (95%) depend on these fees to make a living. The artists also
depend on their reputations, which are damaged by the inferior quality of pirated
copies sold to the public. Breaking into the music business is no picnic. Piracy
makes it tougher to survive and even tougher to break through. As recording artist
“Tool” noted, “Basically, it’s about music — if you didn’t create it, why should you
exploit it? True fans don’t rip off their artists.”
These economic losses are the basis for intellectual property laws in the United States:
“…government has created intellectual property rights in an effort to give authors and
inventors control over the use and distribution of their ideas, thereby encouraging them to
invest in the production of new ideas and works of authorship. Thus the economic
justification for IP lies not in rewarding creators for their labor but in ensuring that they
have appropriate incentives to engage in creative activities.” 11 In Continental Europe the
justification for intellectual property protection under law more commonly is based on
the moral or natural rights of the author to his work. 12 The “moral rights” are that the
author is the owner of his output, and for someone to misappropriate that output
constitutes theft and the violation of the creator’s rights to his own work. And of course
the publishers of creative works have an interest in protecting the author’s rights to
his/her work because they also invest in producing and promoting the author’s work, and
in fact may have purchased the rights to the work from the author.
Similar arguments to those used by the RIAA apply to pirating movies or software. If
piracy is rampant, in addition to lost revenue to the rightful owners of the property,
incentives to develop new product offerings go down, and costs to the people who buy
legitimate products go up.
Similar issues are found in the business world, relating to misuse of patents or trade
secrets. Protection of the intellectual property found in patents has been a major
contributor to many of the technological advances our society has made. What drug
company would invest hundreds of millions of dollars in developing a new medicine if as
soon as they put it on the market other people could sell the exact same thing at a cost of
pennies per pill with nothing invested in research? What high tech-company would
invest tens of millions of dollars in developing a new product if others could immediately
copy all the fruits of their research?
A further reason to condemn casual intellectual property theft such as music or video file
swapping is that it contributes to a general weakening of the moral fiber of society. If
people see this form of “cheating” as being OK, other forms of cheating are also likely to
be taken more lightly. The Talmud forbids us to steal, even from a thief, ,‫בתר גנבא גנוב‬
‫ וטעמא טעים‬if you steal from a thief, you get a taste for thievery. 13
11
Mierges, Menell, Lemley, Intellectual Property in the New Technological Age, New York: Aspen
Publishers, 2006, p. 13.
12
Ibid., p. 5.
13
BT Brachot 5b
5
Ted Olson (former US Solicitor General) makes a similar argument in an op-ed piece he
authored that appeared in the Wall Street Journal: “These systems [that allow swapping
music files] also inflict immeasurable damage to our standards and morals. By enabling
millions of persons, especially our children, to take property without paying for it, we are
sending a potent message that it is acceptable somehow to steal music if it is done in the
home with a computer rather than stuffing CDs from a store into a backpack and walking
out. That is why many organizations who represent traditional values have joined in the
effort to stop this systematic and widespread theft – unified by the belief in the simple and
ancient principle: “Thou Shalt Not Steal”.” 14
Issue 2. Status of intellectual property under secular law and dina d’malchuta dina
A complete treatment of intellectual property under secular law is far beyond the scope of
this paper. However, for context, some background and a few highlights are necessary. 15
Protection of intellectual property in the United States goes all the way back to the
Constitution. Article 1, Section 8 says that Congress has the power “To promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries.”
Intellectual property under US law comes in four different forms: patents, trademarks,
trade secrets and copyrights. A patent grants the holder of the patent the absolute right
for a certain term to determine who, if anyone, can make, use or sell the invention. In
order to obtain a patent, the invention must be of a patentable subject matter, have utility,
and be novel and non-obvious. These requirements are established through the patent
application process.
A trademark is any letter, word, symbol or combination thereof, affixed to goods that
identifies the origin of the goods.
Trade secrets are protected under state law, and most states follow the Uniform Trade
Secrets Act. For information to qualify as a trade secret, the information must confer
upon the owner a competitive advantage, and have been the subject of reasonable security
by the owner.
The bulk of this teshuvah is focused on copyrights, since copyrights are the form of IP
infringed when people copy software or music without permission.
Copyright protects the literary, dramatic, musical, artistic or computer works of the
copyright owner. Copyright allows the owner to prevent others from displaying,
reproducing, adapting, performing or publishing the owner’s work. The protection
14
“Thou Shalt Not Steal,” Ted Olsen, Wall Street Journal, March 23, 2005.
The author gratefully acknowledges the assistance of his wife, Lauri Donahue, visiting professor at the
University of Toledo Law School …
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