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)