Q: Copyright and patent law have become very relevant legal issues in the past two centuries. What is the halachic approach to copyright?

A: This question has been addressed by contemporary authorities; there are widely divergent opinions. Be"H, we will deal with some of the fundamental questions relating to this issue. Among them:

1. Is there halachic ownership of intangible objects, such as Torah thoughts, professional techniques, a computer program, or music work?
2. Is there a time limit to these rights?
3. Do heirs have rights in their inheritor's works?
4. Is there a difference between Torah seforim/ shiurim and other items?
5. Can a person sell something, yet restrict its use? If yes, what recourse does the seller have?
6. What role, if any, does state law play here?
7. What status do common commercial practice and local customs have?
8. What is the idea behind haskamot (approbations) of seforim?
9. Is there a difference between copying for personal or commercial use?
10. Once something has been made public on the internet, legally or illegally – does that impact the halacha?

Based on our discussion of these issues, IY"H, we will attempt to address practical cases.

Q: Does halacha recognize ownership of mental creations, such as Torah thoughts, professional techniques, computer programs or music works, beyond the physical entity of a book or disc?

A: This very fundamental question regarding copyright issues remains a significant dispute between the authorities.

The Maharsham (2:202) explicitly maintains that a person does not have ownership over a professional technique he developed, because it is intangible. Thus, once a book or disc is sold, the creator cannot claim absolute ownership over the inherent content to prohibit copying it. This position is indicated also by the Chasam Sofer (C.M. #79; 41; 6:57) and other Gedolim who wrote approbations prohibiting others from reprinting Torah works on the basis of other reasons.

On the other hand, the Shoe'el U'maishiv and others, including many contemporary authorities – e.g., Rav Moshe Feinstein zt"l (O.C. 4:40[19]) and Rav Y.S. Eliyahiv zt"l – maintain that a person has ownership of his mental creations. While the customer bought the book or disk, he did not buy the mental creation itself. Thus, according to this opinion, one who copies against the creator's will is stealing his mental creation.

(See Emek Hamishpat, Zechuyos Yoztrim, Intro. pp. 1-3.)

Q: How long does a person who created "intellectual property" have halachic rights over it?

A: According to the opinion (discussed last week) that a person has ownership over his intellectual property, there is no time limit to his rights, just as there is no time limit to his ownership of tangible property.

According to the opposing opinion that there is no ownership and that halachic monetary rights are rooted in other reasons (as will be discussed in future article, be"H) – there is a time frame.

For example, if rooted in dina d'malchusa or minhag hamedina – the time frame would parallel that of secular law. In the U.S., this is 20 years for patents and lifetime plus 70 years after death for copyrights.

If based on hasagat gevul or similar reasons – the time frame would depend on the amount of time needed to recover the investment cost and earn a reasonable profit. Many early approbations mention a time frame of four to ten years, or until the first printing was sold out. The Heidenheim machzor, which entailed a great investment, was granted protection for twenty-five years! (Emek Hamishpat, Zechuyos Yotzrim, Intro. ch. 14

Q: Does a person who created "intellectual property" bequeath his copyright to his heirs? Do heirs of a talmid chacham have exclusive rights to publish his Torah writings or teachings?

A: The Rama (C.M. 276:6) writes that one cannot bequeath something intangible. Thus, even according to the opinion (discussed previously) that a person has ownership over his intellectual property, it seems questionable whether his heirs inherit these rights.

Nonetheless, when there are manuscripts or recordings of his teachings, since the intellectual property is linked to a physical entity, he can bequeath them with their content to his heirs.

Even according to the opinion that one does not have ownership over intellectual property, the accepted practice is to grant heirs first rights to publish their father's teachings. This is based on the customary practice and doing what it just (ve'asita hayashar v'hatov), but each case would need to be evaluated individually. If the heirs made no effort to publish, they cannot demand a percentage from others who did.

When dina d'malchusa applies, heirs are granted copyright rights for 70 years after the creator's death.

(Emek Hamishpat, Zechuyos Yotzrim, ch. 11; Pischei Choshen, Geneivah 9:[27])

Q: Are civil and international copyright laws binding according to halacha?

A: "Dina d'malchusa dina" – the law of the land is law (B.K. 113a). Although the poskim curtail the application of this rule between Jews when Torah law contradicts civil law, Beis Yitzchak (Y.D. 2:75) applies dina d'malchusa to copyright protection, for three reasons:

1. Civil law often forms a common commercial practice, which is halachically binding.
2. A civil law that merely restrains others from gaining, but does not cause them a loss, might be followed even against Torah law.
3. According some authorities, copyright protection is in consonance with Torah law.

Others uphold copyright protection on the basis of what is logically "just and fair" (hayashar v'hatov), as indicated by the civil law.

Thus, even according to the halachic opinion that a person does not have ownership of "intellectual property" one may not copy with commercial intent, on the basis of dina d'malchusa.

It is questionable whether dina d'malchusa applies in Israel. However, if Israeli civil law generated a common commercial practice – it is binding on that account.

(See Emek Hamishpat, Zechuyos Yotzrim 7:44-46, 34:171-176; C.M. 369:6; Pischei Choshen, Geneivah 1:[4])

Q: Is there any difference between the copyright of Torah works and other intellectual property, such as music or secular works?

A: The Sho'el U'maishiv (1:44) applies full ownership rights also to Torah thoughts.

However, the Gemara (Nedarim 37a) states that, in principle, Torah teachings should be disseminated for free, just as Moshe taught Am Yisrael for free.

Based on this, some authorities distinguish between the copyright of Torah works and other intellectual property. Even according to the opinion that a person has actual ownership of intellectual property, they maintain that a person has only limited ownership or rights in Torah works. Beis Yitzchak (Y.D. 2:75) restricts the copyright to the first printing, which allows the author to recoup his publishing costs. The Torah requires teaching Torah thoughts for free, but it does not require the additional effort of writing or publishing for free.

Others compare the rights of Torah thoughts to tovas hana'ah (incidental benefit) of terumah, which allows incidental financial benefit through distributing the Torah thoughts.

Regardless, other reasons for copyright – e.g., dina d'malchusa and common commercial practice – would apply equally to Torah works.

(See Emek Hamishpat, Zechuyos Yotzrim ch. 6, 12)

Q: When a journalist writes a weekly column for a newspaper, who has rights to the content of the column – the author or the publisher?

A: In general, when a worker creates something for his employer, the copyright and patent rights belong to the employer. He hired the worker to create intellectual property and "owns" his creative capacity utilized at work.

However, a journalist who writes a weekly column is often not a regular employee who committed his creative capacity to the employer. The newspaper contracts him to deliver a written article and he only gives the newspaper publishing rights. Thus, the article remains the intellectual property of the author.

Even if the writer is a regular employee of the newspaper, the accepted practice seems to be that if the author should want to collect his articles into a printed work – he has that right. Halacha places a great emphasis on the common commercial practice as binding in monetary law: "the [common] practice uproots the [default] halacha." (C.M. 232:19)

Regardless, in many cases, the contract will define who has rights to the intellectual property created.

(See Emek Hamishpat, Zechuyos Yotzrim 16:176; 34:167)

Q: What halachic liability is entailed in copying a program or disc for private use?

A: According to the opinion that halacha recognizes ownership of intellectual property, some write that there is a prohibition of "theft" (gezel) in copying. (Igros Moshe O.C. 40:19) However, the Rambam (Hil. Shofar 1:3) indicates that actual theft does not apply to something intangible.

There is an ancillary prohibition, though, to benefit (neheneh) from another's property against his will, which applies also to something intangible.

As such, if the person might have bought the program or disc, he is liable on the basis of "zeh neheneh v'zeh choser." He might not be liable for the full cost, though, since the copied item lacks technical support, user's manual, etc.

Even if the person would not consider buying the item, so that that the creator is not choser (losing), it is still prohibited to benefit against the owners will. However, if one did copy, he might not be liable, since he did not cause the owner a "loss."

Of course, dina d'malchusa and minhag hamedina would have to be considered.

(See Emek Hamishpat, Zechuyos Yotzrim, Intro. ch. 3; ch. 25-28)

Q: May I copy a music disc for a friend that I am absolutely certain would not buy it, since he's not a potential customer anyway?

A: According to the opinion that the creator of intellectual property has ownership, some consider one who copies illegally as "stealing" (gezel). This is prohibited even if the person receiving the copy is not a potential customer.

Even if we consider this "zeh neheneh z'veh lo chaser" (the friend gains and the creator doesn't lose), the Shulchan Aruch (C.M. 363:6) rules that one can refuse usage of his property even when he doesn't lose. Moreover, "zeh neheneh v'zeh lo chaser" applies to temporary usage, not taking permanent possession of another's item.

However, according to the opinion that halacha does not recognize ownership of intangible "intellectual property" there isn't clear halachic basis to prohibit copying when there is no financial impact, although morally inappropriate. In many places, though, it would be prohibited based on dina d'malchusa.

Copying a computer program is prohibited, though, since nowadays these are almost always "licensed," not "sold," which retains the company greater rights.

(See Emek Hamishpat, Zechuyos Yotzrim, Intro. ch. 3; ch. 28-29) 

Q: Does halacha also prohibit copying a program or book produced by gentiles?

A: The Shulchan Aruch rules that stealing from non-Jews is prohibited. (C.M 348:2; 359:1) Thus, according to the opinion that halacha recognizes ownership of intellectual property and that one who copies illegally is stealing from the owner – the prohibition to copy clearly applies also to the intellectual property of gentiles. [Even according to those who define the prohibition as "benefitting" against the owner's will, such benefit is also a subset of theft, and prohibited.]

According to the opinion that halacha does not recognize ownership of intellectual property and that the prohibition to copy is based primarily on hasagas gevul (intrusive competition), this prohibition would not apply to gentile works. [Many authorities maintain, though, that it applies to a non-observant Jew.] Nonetheless, in practice it is still prohibited to copy illegally. Halacha recognizes the gentile's rights in accordance with common law, based on dina d'malchusa and the common commercial practice. Furthermore, copying illegally can lead to chilul Hashem. [Moreover, Jews may have shares in the company, so that the company's financial loss affects them.]

 (Emek Hamishpat, Zechuyos Yotzrim, Intro. 3:51-54; ch. 35:206) 

Q: A computer technician or a friend offered to add to my computer unlicensed versions of programs that he has. Is it permitted?

A: Selling unlicensed versions is prohibited for a variety of reasons, including: geneivah (theft), benefitting unfairly from another's toil, hasagas gevul (encroachment), dina d'malchusa (law of the land), and minhag hamedina (common commercial practice). Thus, you are prohibited to purchase the unlicensed copy from him, just as you are prohibited to purchase from a thief, because this encourages him to continue stealing and is also a violation of lifnei iver and/or mesayei'a lidei ovrei aveirah. (C.M. 356:1; 369:1)

Even if the technician offers to install it for free, it is still prohibited, since he gains by selling you the computer or by charging for his time and labor. Asking a friend to install an unlicensed copy is similarly not allowed, since you are encouraging him to violate his licensing agreement. Moreover, even if a friend gives you an unlicensed copy of his own accord, by receiving it you are giving him verbal encouragement to violate, which is prohibited. (Magen Avraham 347:4) 

 (Emek Hamishpat, Zechuyos Yotzrim, Intro. 35:5-9; ch. 40:23-40) 

Q: Can I copy a book that is no longer in print? What about an older version of a computer program that is not sold anymore?

A: If the product is not available, it would seem that there is no concern of hasagas gevul (encroachment). Furthermore, even according to opinion that halacha recognizes ownership of intangible intellectual property, the creator might not mind copying here; it would be like yei'ush and avaiedah midaas (willful abandonment).

On the other hand, if the product is available in a newer version, the old content remains in the new version with additional features. Thus, Rav Y.S. Elyashiv zt"l does not allow copying the older version. It also continues to be prohibited based on dina d'malchusa.

If you purchased a license for the current version, but prefer the older version for some reason (e.g., it requires less memory or you're familiar with it), you are allowed to copy the older version. However, if you purchased a license for the older version, you do not have the right to copy a newer version; it would be like copying any other program.

(See Emek Hamishpat, Zechuyos Yotzrim, Intro. 3:38-40:5-9; ch. 35:200) 

Question: Can I make an extra copy of a music disc for listening in my car? What about a backup in case the disc gets ruined?

Answer: According to the opinion that halacha recognizes ownership of intangible intellectual property, the creator can limit the right to make multiple copies of his creation even for such personal use. In some cases, though, he might not object if the discs will not be played simultaneously.

According to the opinion that there is no ownership, it would usually be permissible when you would not consider buying another copy.

On the other hand, to make a backup copy would seem permissible even according to the opinion that there is ownership. You are not making unauthorized use of his intellectual property, but rather securing the copy that you purchased. In some countries dina d'malchusa allows copying for such purpose.

A similar halacha would apply to installing a program onto multiple computers. Many programs now specify whether the license is for single or multiple use. Some single licenses still allow copying on to a home computer and a laptop.

(See Emek Hamishpat, Zechuyos Yotzrim, Intro. 3:43-46; ch. 35:201)

Question: Can I copy an individual page or chapter from a sefer for my own use?

Answer: Copying a few pages is usually not a violation of hasagas gevul, since a person who needs only a few pages will generally not buy the sefer. It would seem permissible even according to the opinion that halacha recognizes ownership of intangible intellectual property, since the author often does not intend to prohibit such copying. Although he writes "any portion," his primary intention is to prevent copying significant portions or for commercial use. Especially in libraries, where there are photocopy machines stationed, he abandons hope of such restriction. [One must be careful not to ruin the library's sefer when copying.]

However, to copy a page that has significant inherent value, such as a major summary chart, could be prohibited according the opinion that halacha recognizes ownership.

Certainly, a person who bought a sefer and wants to copy a few pages for his convenience, such as if he is traveling, is allowed to.

In many places, copying individual pages is permitted also according to dina d'malchusa as "fair use."

(Emek Hamishpat, Zechuyos Yotzrim, Intro. 4:1-5; ch. 35:198)

Question: Someone uploaded an illegal "cracked" copy of a program to the internet. Is it permissible to download it?

Answer: There is an opinion that something made available over the internet is permissible to copy. This is based on the concept of zuto shel yam regarding hashavas aveidah. I.e., an item that has been swept away by a river or receding tide is considered ownerless, since there is no control over it and the owner abandons hope (yeiush). In the same way, once the program is made public on the internet, the owner has no control over it.

However, most authorities reject the comparison to zuto shel yam. There, the item is completely lost; here the creator still maintains ownership of his intellectual property and continues to sell legal copies of it. Furthermore, even the uploaded copy is not lost until people download it. In many cases, he can demand that the site remove the illegal copy.

Moreover, even in the case of zuto shel yam it is morally proper to return the washed away item to its owner, and, if the government demands so, is required halachically because of dina d'malchusa. (C.M. 259:7)

Question: Someone published a photo of Rabbonim sitting at a rabbinic convention? May I copy this photo?

Answer: Rav Yosef Chaim Zonnenfeld zt"l allowed taking a photo of another person without his permission (provided, of course, that the person will not be embarrassed, etc.). He does not consider copying the image of someone as benefitting from him. The mere look (mar'eh) of something, which does not involve a mental creation, is not considered "intellectual property." Hence, the photo is also not considered the intellectual property of the photographer to prohibit copying for personal use.

However, if the photograph required the photographer's creativity to achieve, then it could be considered his "intellectual property" and would be prohibited to copy. Similarly, if the photographer enhanced the photo significantly, it would be prohibited to copy, since it is now a product of his creativity.

Regardless, since the photographer invested effort in taking the picture, it is prohibited to copy it for commercial purposes that might impinge upon the photographer's earning. This would be a violation of hasagas hagevul, professional practices, dina d'malchusa, and benefitting financially from another's toil.

(Emek Hamishpat, Zechuyos Yotzrim intro. 7:1-5; ch. 36:7,19,25)

Q: If a person produced a book or music disc that does not bear the copyright symbol ©, does he still retain copyright rights? What if the author didn’t even write, “All rights reserved?”

A: If the author writes, “All right reserved,” or similar language, he retains full rights, even if he neglected to include the international copyright symbol ©. (For music discs, sometimes the symbol ℗ phonorecord — is used instead.) This is also the dina d’malchusa nowadays in most countries, including the U.S. and Israel; the author retains full copyright rights even without the symbol. (Before 1989, though, the symbol was required in the U.S.) The primary significance of the symbol nowadays is to negate any claim of “innocent infringement.”

Furthermore, even if the law required the symbol, the author’s rights according to Torah law would still apply.

If the author did not even write “All rights reserved,” it is questionable whether this indicates intentional relinquishing of his rights or was an oversight. In this case, one should contact the author, since most often he has no intention of relinquishing his rights (Emek Hamishpat, Zechuyos Yotzrim, intro. 3:49-50; ch. 38:83).

Q: A tradesman (carpenter, seamstress, contractor, etc.) drafted professional plans for me. Can I take those plans to a cheaper tradesman to do the work?

A: It is clearly prohibited to ask an expensive tradesman to draft plans with the initial intention of taking them to a cheaper tradesman to make the item. You are availing yourself of a designer’s services for free, against his will and his intention to secure the job.

Moreover, even if you asked the first tradesman to draft the plans in good faith, and considered having him make the item, it is often prohibited for another tradesman to use the plans and make the item, on the basis of hasagas gevul, minhag hamedinah, dina d’malchusa, etc.

However, if the seamstress already made the dress, the carpenter made the bookcase, etc., and someone wants to show it to another tradesman to make an additional item, copying the original, it is permissible (unless the design entailed some special ingenuity). In this case the design was already sold to the customer, and the tradesman knows that he has no way of preventing others from copying it (Emek Hamishpat, Zechuyos Yotzrim, intro., 6:1-10, 22-23; ch. 36:22, 26, 28).

Q: Our shul invited a noted Rabbi to speak. Can I record the shiur? Can I make copies of the recording?

A: One should ask permission before recording, even though it is usually permissible to record a public shiur. The speaker is aware that people often record shiurim, so there is tacit permission to record if the speaker did not stipulate otherwise. (A professional lecture could be different.)

Moreover, it may even be permissible to make copies of the recording. However, if the speaker plans to sell copies, or sells recordings of a similar shiur, it is prohibited to infringe on his rights.

When the speaker stipulates that he does not allow recording, then it is prohibited, even for personal use. If he stipulated so as one of the terms of his employment, it is prohibited to expect him to work against his will. The same applies if someone gave a shiur in his house or in a private hall. The speaker can insist that he is willing to allow entrance only to someone who will follow his stipulation of not recording (Emek Hamishpat, Zechuyos Yotzrim, intro. 13:1-13; ch. 36:19-21; Igros Moshe, O.C. 4:40[19]).

Q: May I make copies of copyrighted material to distribute in class?

A: Many authorities allow copying occasional pages from various books for distribution in class, since the students would not buy all the books required just for the occasional pages. This applies even more so to pages from the “teacher’s edition.”

However, copying a significant portion of the book is not allowed according to the many Poskim who hold that Halachah recognizes ownership of intellectual property. This especially applies to workbooks, which the students would have to buy if they were not provided copies.

Standard editions of old, classical sefarim may be copied, since there is no real copyright on them. A new layout of a classical sefer is subject to dispute between Harav Yosef Chaim Sonnenfeld and the Rogatchover. However, a new edition with footnotes and sources would be considered like any other copyrighted work.

Some authorities allow copying even significant portions for personal, non-commercial use, based on the authorities who hold that Halachah does not recognize ownership of intellectual property. However, even these authorities do not see this as proper behavior, so it is poor chinuch (Shevet Halevi 4:202; Emek Hamishpat, Zechuyos Yotzrim, Intro. 4:6-9; ch. 35:199).

Can I imitate and sell the product (food, electronic item, etc.) of another manufacturer?

A:

While many halachic authorities recognize ownership of intellectual property and prohibit copying the writings or musical creations of others, the practice is to imitate products of other manufacturers (that are not patented).

This distinction exists legally as well. Books have automatic copyright protection for seventy years after the author’s death, whereas manufacturers must prove that a product is truly a new creation and register for a patent, which lasts only twenty years.

What is the difference?

It is prohibited to reproduce a creation by simply copying its result (book, disc, or program), but to imitate and recreate it through one’s own efforts is allowed.

There is public interest that new products become public domain to encourage competition and improvements, whereas public interest is not to copy books, but to encourage new works.

Most new products are adaptations of existing ideas, so they cannot be considered the manufacturer’s “intellectual creation” in order to grant him ownership of that variation.

However, to mimic the packaging of the original product and profit from its reputation is prohibited (Emek Hamishpat, Zechuyos Yotzrim, Intro. 9:1-10; ch. 14:133).

Question: 1. Can I install a program that I purchased on multiple computers?

2. If I bought a three-user license, can a relative or friend use one of the additional copies?

3. I purchased a program, but no longer need it. Can I give or sell it to someone else?

Answer: In principle, the answer to all of these questions is that the terms of the license agreement are binding, because of copyright, dina dm'alchusa, minhag hamedina, etc. Therefore, you need to read and observe the specifics of the license. Most programs require you to accept the licensing terms before they will install.

1. The license will specify whether it is a single-use or multiple-use license. Some programs offer the option of buying either a single-use or a multiple-use license, for an additional cost. Some single use licenses will still allow the "primary user" to copy the program on his laptop.

2. There does not seem to be a requirement that all three copies be used by the same person.

3. Some licenses will allow you to transfer the program in its entirety to a third party; others are marked "NFR" (not for resale).

Question: There is a website or store, based in Asia or Eastern Europe, that offers computer software at substantial discounts, sometimes 10% of the retail value. Can I buy from them?

Answer: There is a good chance that the software they are selling is pirated. [Often their products are presented as OEM software – which will be addressed separately, be"H.]

According to the majority opinion that halacha recognizes ownership of intellectual property, the pirated software is considered stolen property. The fact that the site is readily available to all and that many others customers purchase from it, does not permit you to purchase and use a pirated copy.  

However, according to the minority opinion that halacha does not recognize ownership of intellectual property, the primary halachic concern is one of hasagas gevul (encroachment). One could possibly argue that since the website or store sells freely on a regular basis, your individual purchase does not impact the company's revenues. The application of dina d'malchusa and minhag hamedina is also suspect in these places. Nonetheless, it is clearly considered something very improper even according to this opinion.

(See Emek Hamishpat, Zechuyos Yoztrim, Intro. 11:17; ch. 19:214)

Question: Is it permissible to buy OEM software online?

Answer: OEM (=original equipment manufacturer) software is licensed to computer manufacturers and stores to install on computers they sell, not for direct sale to end-users. The license is granted to a "system builder," defined in Microsoft's OEM license as: "an original equipment manufacturer, an assembler, a refurbisher, or a software preinstaller that sells the Customer System(s) to a third party."

Generally, OEM software may not be resold, except for unopened copies to another "system builder." Thus, selling OEM software to an end-user without accompanying hardware, or selling used OEM secondhand, is a breach of the license. Furthermore, sites offering "OEM versions" at great discounts (e.g., Adobe Photoshop) are often counterfeit copies.

OEM licenses are usually granted to the specific hardware (usually motherboard) to which the OEM software was initially installed ("Licensed Device"). Thus, according to the licensing terms (which must be accepted also by the end-user), when a person buys a new computer, he may not transfer his OEM software to the new machine.

For more information, see: Microsoft OEM licensing FAQ, Microsoft OEM System Builder license, and OEM section of Microsoft Software License Agreement.

Question: Must I cite the source of Divrei Torah?

Answer: The Mishna (Avos 6:6) emphasizes the significance of citing sources: "Whoever says something in the name of its sayer brings redemption to the world." Conversely, the Midrash (Tanchuma Bamidbar #22) writes that one who doesn't cite is included in the verse, "Do not steal from a poor person." (Mishlei 22:22)

The Machaneh Chaim (V:2, C.M. 49) rules that a sofer who publicized the rulings of other rabbonim in his own name is "a thief," for stealing the Torah knowledge of the originator. [This indicates that he recognizes ownership of intellectual property.] Others disagree that theft applies, but include this in geneivas daas or midevar sheker tirchak.

The Gemara (Nazir 56b) indicates that you should mention both the originator of the idea and the immediate source who told you, but do not need to mention the intermediate chain of transmission. However, the Raavad writes (based on Avoda Zara 16b) that the practice is to cite only the original source. Certainly, if you look up the source in the original sefer, there is no need to mention the secondary source that referred you there.

(See Emek Hamishpat, Zechuyos Yotzrim, intro. 31:1-7; ch 2:5, 39:2-4)

Question: Can heirs publish the writings of their father posthumously without his prior consent?

Answer: The Netziv (Meishiv Davar 1:24) was asked about a gadol who instructed not to publish his responsa posthumously. I.e., does a person have the right to refuse sharing his Torah teachings and rulings with others?

The Netziv responded that although a person can do with his Torah teachings as his own and can grant this right to his heirs (which indicates ownership of intellectual property), he has no right to inhibit his Torah teachings, since a person is commanded to teach others and not retain his Torah knowledge for himself.

This seems applicable, however, only to writings that are deemed worthy of publication, both in terms of content and style. However, writings not worthy of disseminating or in a draft stage, which can cause a slight to the author's honor – should not be published.

The Netziv's rationale would not apply to non-Torah writings, where a person who has ownership of his intellectual property has the right to instruct not to publish his writings for whatever reason.

(See Emek Hamishpat, Zechuyos Yotzrim, intro. 25:1-3; ch 3:7; Igros Moshe O.C. 4:40[19])

Question: Does halacha recognize the sale of intellectual property?

Answer: Even according to the opinion that halacha recognizes ownership of intellectual property, it remains, nonetheless, intangible. Generally, it is not possible to sell something that is intangible (davar she'ain bo mamash) or that does not yet exist (davar shelo ba la'olam). (C.M. 209:4; 212:1)

Nonetheless, poskim have validated the sale of intellectual property on the basis of dina d'malchusa and minhag hamedina, since the common commercial practice for the past few hundred years has been to sell such rights and franchise licenses. This is true also according to the opinion that there is no actual ownership of IP, only right to profit from one's efforts.

Furthermore, if the idea has been affixed to something tangible, such as ideas put into writing or a prototype model, the owner can sell the ideas along with the tangible paper or model.

However, when selling a future design – it is questionable whether minhag hamedina applies to something that is aino ba'olam. (Pischei Teshuva C.M. 201:1-2)

When selling intellectual property, it is possible to stipulate terms and conditions, like any other sale.

(See Emek Hamishpat, Zechuyos Yotzrim, intro. 16:1-5; ch 14:119)

Question: I have seen some seforim or CD's that state that the right to copy is excluded from the sale. What does this mean?

Answer: Some authorities, notably Rav Z.N. Goldberg shlita, have suggested that if the author would explicitly exclude from the sale the right to copy, one who copies would be considered a thief and liable to pay even according to the opinion that halacha does not recognize ownership of intangible intellectual property. (Techumin 6:185ff; 7:360ff, 368ff)

This notion is known as shiyur b'mecher (limitation of sale). It is possible to sell an item for certain usages, but not for others. For example, a person can sell his tree, but maintain ownership regarding its fruit; a person can sell his house, but maintain ownership regarding the dwelling or air rights. (C.M. 209:7; 212:3) Similarly, the author can sell the book for reading and the disc for listening, but not for copying. Thus, using the book or CD for copying would be stealing it, since the book or CD was never sold for this usage.

Other authorities question the application of this notion, to be addressed next time, be"H.

(See Pischei Choshen, Kinyanim 20:[46]; Emek Hamishpat, Zechuyos Yotzrim 38:1-2)

Question: Can the concept of shiyur b'mecher be applied to copy rights?

Answer: We mentioned last week that according to some authorities if the author explicitly excludes from the sale the right to copy (shiyur b'mecher), one who copies (even for personal use) would be considered a thief, even according to the opinion that halacha does not recognize ownership of intangible intellectual property.

Other authorities question this application of shiyur b'mecher for three main reasons.

1. Shiyur b'mecher classically applies when the seller maintains a certain usage for himself, which thereby restricts the customer. However, here the author has no intention to use the book or disk for copying (he has the master for that); his sole intention is to restrict the customer from doing so.
2. Often, copying does not entail special usage of the item itself, but of external equipment over which the author has no rights; e.g., saving an existing file to another disk or printing something already displayed on a screen.
3. Shiyur b'mecher would apply only to the original book or disk, not to a copy or file on the hard drive.

Nonetheless, according to the opinion that halacha recognizes ownership of IP, only one copy was sold, not two, even without shiyur b'mecher.

(See Pischei Choshen, Kinyanim 20:[46]; Emek Hamishpat, Zechuyos Yotzrim, intro. 33:3-7; ch. 38)

Question: Is there protection in halacha for reputation and goodwill (monitin)? Is there recourse for trademark infringement?

Answer: The reputation of a company is an intangible asset, which is represented by its name, symbol, trademark, packaging, etc. Responsa Divrei Malkeil (3:157) was asked about a person who received a license to produce and market purified water, but another person mimicked the labels and sold under this license. He required the infringer to share in the cost of the license, based on zeh neheneh v'zeh chaser, and upheld the right of the license owner to restrain the competitor from marketing, so as not to damage his reputation.

Moreover, reputation nowadays is treated as an asset that can be evaluated monetarily and sold. When purchasing a company with good reputation, the cost in excess of other assets (tangible and intangible) is recorded as the value of the company's "goodwill." Thus, reputation is considered a commodity based on minhag hamedina (common commercial practice) and dina d'malchusa, so that using the reputation of another company or store is considered stealing something of value.

 (See Emek Hamishpat, Zechuyos Yotzrim, intro. 28; ch. 14; Pischei Choshen, Geneivah 8[5],9[26])

Question: For centuries, seforim were printed with rabbinic haskamos (approbations) prohibiting others from reprinting the sefer during a specified number of years, often with a curse (nidui or cherem) attached. What is the basis for this practice?

Answer: Many based the haskamos on hasagas gevul (encroachment). In situations where not applicable, other reasons were advanced: 1) A takanas chachamim (rabbinical enactment) of the Sages of each generation to enable the creator profit. 2) Mutual agreement of the publishing trade. 3) To strengthen doers of mitzvah, so that shouldn't be concerned about losses. 4) As an established practice without dissent that became entrenched.

According to the opinion of many achronim and contemporary poskim that halacha recognizes ownership of IP, we can explain the need for haskamos in a number of ways: 1) To strengthen the prohibition in people's eyes. 2) For publishers of old works over which there is no ownership. 3) Not every new work is sufficiently a "new mental creation" to be considered IP. 4) On account of the mitzvah to teach Torah, ownership in Torah IP may be limited to a certain degree.

(See Emek Hamishpat, Zechuyos Yotzrim, intro. 21; ch. 17-20)

We have seen various halachic, legal and technical aspects of copyrights and patents.

There are two fundamental approaches in the poskim towards this issue. Some maintain that halacha recognizes ownership of intangible, intellectual property. Thus, there is an element of theft when using copyrighted material in a restricted manner. This would limit even copying for personal use in certain cases and provides a broader base for liability of one who copied. It would also prohibit violating a gentile's copyright, in addition to the concern of chilul Hashem.

Others maintain that halacha does not recognize ownership of intangible IP. According to them, the primary concern of copying is commercial infringement, hasagas gevul, where there is significant financial loss for the owner. Nonetheless, since copyrights is an established, contemporary issue, with legal rules and professional practices – restrictions of dina d'malchusa and minhag hamedina would often apply, although permission for "fair" or "educational" use is usually permitted in this context. Even according to this opinion, it is generally considered morally improper to violate someone's copyright. Furthermore, some apply the concept of shiyur b'mecher (limitation of sale) where the owner specifically restricted usage for copying. 

Among the issues that have been addressed are:

One may not ask a tradesman for a sample design and bring it to a competitor to make.

The accepted practices of each profession are valid based on minhag hamedinah. IP (intellectual property) rights can be sold based on minhag hamedinah; they generally pass to the owner’s heirs.

Copying a few pages is generally permitted, even for class use, unless they are of significant inherent value, such as a summary chart.

It is generally permissible to tape a public shiur for personal listening.

Computer programs come with clearly defined licenses; one who is scrupulous should check the details of his license. Purchase of an older version does not grant rights to a new version. It is permitted to make a backup copy.

Some suggest that it is permissible (although improper) to copy IP already posted on the internet, based on zuto shel yam, but many disagree.

One may not infringe on a company’s trademark or reputation (monitin).