Downloading Music from Sharing Websites

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1 Downloading Music from Sharing Websites Rabbi Aryeh Lebowitz Rabbi Aryeh Lebowitz is the rabbi of Beis Haknesses of North Woodmere and Maggid Shiur in DRS as well as HALBʹs post high school yeshiva program, Yeshivat Lev Hatorah. I. Introduction Part of the magnificence of the Talmud is that there is very rarely a necessity to write new principles after the Talmud. The rabbis of the Talmud not only discussed specific cases, but provided a logical construct for later rabbis to work within. The halachic permissibility of downloading music from the Internet may seem to be a new issue that obviously cannot be found explicitly in classical rabbinic sources. However, as with (almost) all technology driven questions, the application of ancient principles guides us in understanding our obligations and responsibilities in the modern world. In this essay we will discuss the halachic issues pertaining to the illegal downloading of audio or video from sharing websites. We will outline two schools of thought in dealing with this issue and the practical differences between the two. It should be noted that this discussion does not include the dissemination of divrei torah, as the halachos may be differently influenced by the responsibility that a Jew has to share his Torah with others (see Shach, Choshen Mishpat 292:35, Rama 292:20 and Meishiv Davar I:24). II. Ethical considerations We associate sharing with generosity and kindness. The term music sharing sites is probably a subconscious attempt to rationalize behavior that we would otherwise dismiss as 95

2 96 illegal and therefore unethical. People tend to justify the propriety of downloading music without paying for it in several ways. Unlike stealing from a retail shop, where one would physically take an item that does not belong to them and remove it from the possession of its rightful owner, when one downloads music they reason that they haven t taken anything and have not cost the record company anything by their actions. The fallacy of this claim can best be demonstrated by the universally accepted practice of paying a toll to go over a bridge. The bridge may have been built years earlier, and it may not cost the transit authority any meaningful amount of money for any single individual to traverse the bridge. However, since it costs a lot of money to build a bridge, it is reasonable to assume that the people who invested the money to build the bridge have the right to charge money for using it. In fact, when the Gemara (Sukkah 30a) illustrates the idea expressed in the passuk in Yeshayahu (61:8) that Hashem despises gezel, it uses an example of paying a toll as the prototype of gezel. The Gemara (Sanhedrin 109b) illustrates the evils of Sedom through the practice of charging more money to swim across the water than to cross the bridge, strongly implying that charging to cross a bridge is justified. Indeed, Tosafos (Kidushin 59a, referring to a case of a fisherman who has put out bait in a specific area) writes that when one has invested in a business endeavor, others are not permitted to take advantage of the investment free of charge. Another common argument is that preventing one who has no plans of purchasing the music from downloading it for free is a form of middas Sedom. The concept of middas Sedom is that if one party stands to gain from a transaction, while the other party does not lose, it is unethical to stop the party that stands to gain from realizing their benefit, and they are not required to pay for the benefit received. The record company would therefore be practicing a form of tyranny by preventing people from enjoying music at no cost to the company. Among other weaknesses, this argument can only be made if one is

3 97 certain that absent the possibility of a free download, he would not purchase the music. If the consumer would otherwise purchase the music, the transaction can certainly not be classified as middas Sedom. However, the argument of midas Sedom is not particularly credible. Tosafos (Bava Basra 12b s.v. kegon) speaks about a squatter who enjoys living on a property that is not currently being used by the owner. While charging the squatter rent would be a violation of middas Sedom, Tosafos points out that it is absolutely forbidden to squat on somebody else s property in the first place. In other words, the concept of middas Sedom only limits the ability of the proprietor to charge for services, but it does not entitle the beneficiary to partake of the benefit. If this applies to one seeking shelter, it should apply a fortiori, to one who downloads music. Indeed, one may argue that downloading music is itself an act of middas Sedom. The Gemara (Sanhedrin 109a) records that Soddomites would steal tiny quantities that on their own do not have real value, but the cost of retrieval for the victim is substantial. Similarly, downloading a song is by itself insignificant, but the cost to the company of millions of free downloads is prohibitive. III. The Strict Approach In the recently published book, Copyright in Halacha, the author, Rabbi Nachum Menashe Weisfish, consistently refers to two basic approaches to the issue of taking intellectual property, which he refers to as the majority opinion and the minority opinion. Rabbi Weisfish does not explain precisely how he determined which opinion was in the majority. For the purposes of this essay we will therefore refer to them as the strict approach (majority) and the moderate approach (minority). While neither approach has a particularly positive view of the practice of taking intellectual property, there are several important practical differences between them: The strict approach, which seems to be held by Rav Moshe Feinstein (Iggeros Moshe, Orach Chaim IV:40:19), and is cited in the name of Rav Elyashiv (Copyright in Halacha), maintains that taking intellectual property is considered

4 98 stealing the same way that taking tangible property is considered stealing. (Rav Feinstein speaks of making an unauthorized copy of a tape as being an issur gezel. ) When a person conceives of an idea and makes it accessible to others for a price, he maintains ownership of the idea. This ownership is maintained for an indefinite period of time, even absent local copyright laws. Therefore, there would be no difference between one who would otherwise not buy the material and one who would have bought the material. In either case, taking intellectual property is regarded as stealing. This would also mean that even using illegally downloaded music would be forbidden, even if somebody else downloaded it, since using property known to be stolen is also prohibited. Furthermore, stealing is prohibited regardless of whether the victim is Jewish or not. Accordingly, downloading secular music would be prohibited. The exact halachic source for the idea of stealing intellectual property is subject to some debate. Responsa Machane Chaim (Choshen Mishpat II:49) points out a possible precedent to the notion of stealing intellectual property from the Gemara (Sanhedrin 59a) which prohibits a non Jew from learning Torah on the grounds that the Torah is considered an inheritance (morasha) for the Jewish people, and for nobody else. Apparently, even though the non Jew who learns Torah is not stealing anything tangible, he is considered to have misappropriated intellectual property not intended for his use. Maharam Schick (Responsa, Yoreh Deah 156) rejects the viability of the halacha of a non Jew learning Torah as a source for intellectual property in general. First, the Gemara is likely speaking in an hashkafic rather than a strictly halachic context, using the term gezel only as a non literal expression. The Gemara s subsequent comparison of a non Jew learning Torah to adultery seems to demonstrate a clear aggadic tone to the Gemara. Second, considering its Divine origin, Torah may have a unique status that cannot be equated with other intellectual property.

5 99 A second possible precedent for the idea of stealing intellectual property can be found in the writings of Rabbi Shimon Shkop (Chidushei Rabbi Shimon Yehuda Hakohen, Bava Kama 1), who points to the Gemara in Bava Kama (29b) that considers a pit that one digs in a public thoroughfare to belong to the person who dug it vis a vis the damages that are caused by the pit. While the individual who dug the pit is certainly not the owner of any tangible section of the public thoroughfare, his contribution toward reshaping it gains him a certain sense of ownership of it. Similarly, argues Rav Shkop, one who is recognized as the person who developed an idea, even absent technical laws of ownership, is considered by the halacha to be the owner of the intellectual property. One can question the equation of liability for damages with rights of ownership. It is entirely possible that one can be considered the owner in terms of establishing his liability for a pit he had dug in the public domain and still not assume that he is granted any rights of ownership. Rav Zalman Nechemia Goldberg has pointed to a Gemara in Bava Metzia (34a) which allows one to sell a sheep while retaining the rights to future production for oneself. Similarly, one may sell a computer program or music, while still retaining the rights to future reproductions. It would follow that unauthorized reproductions of the material would constitute stealing from the original owner who has never sold those rights. In fact, breaking the conditions of the sale may invalidate the entire sale and prohibit even the person who originally paid for the music from using it. Rav Yosef Shaul Nathanson (Responsa Sho el u Maishiv I:1:44) argues that a source to consider the misappropriation of intellectual property as stealing is unnecessary. The Torah standard of ethics is a higher standard than that of general society. Consequently, if general society views stealing intellectual property as immoral, the Torah cannot possibly maintain a lower standard.

6 100 IV. The lenient approach Rav Shlomo Zalman Auerbach (cited in Copyright in Halacha) maintains that the Torah does not recognize the concept of intellectual property and misappropriation of any such property would not fall in the category of stealing. However, even so, there are several other halachic problems with illegally downloading music: The Gemara in several places (Nedarim 28a, Gittin 10b, Bava Basra 54b, among others) teaches us that (at least with regard to monetary law between a Jew and a gentile) the law of the land is the law. Since it is illegal in the United States to download copyrighted music, it would be halachically prohibited to do so as well (see Beis Yitzchak, Yoreh Deah II:75). The Tur (Choshen Mishpat 368) develops a concept of minhag bnei ha ir (the custom of the people of the city), which is a particular restriction, even if not technically law, that is agreed upon as ethical practice in that particular city. Jews are bound to observe that practice, and are perhaps, as member of society, assumed to have agreed to its social conventions. One may argue, however, that the proliferation of sharing websites is evidence to an absence of an established minhag bnei ha ir in this case. A third concern relates to the prohibition discussed in the Gemara (Bava Basra 21b) to take away another person s livelihood. Obviously, if nobody pays for music it would be very difficult for musicians to make a living. Some might argue that this prohibition may only apply to other Jews for whose livelihood we are in some sense obligated, and may not be a factor in downloading music written and sold by non Jews (though many artists and record company executives and employees are Jewish). (See Responsa Chasam Sofer, Choshen Mishpat 49, 69 and 79.) While it would seem that all agree that one should avoid illegally downloading music, there may be practical differences between the stringent and lenient positions:

7 Whether one may borrow an mp3 device from a friend who has illegally downloaded his music, even for a short period of time, might be subject to debate between these two opinions. If the problem is one of stealing, one should not use stolen goods at all. If, however, the only concerns are those of dina d malchusa dina and/or costing somebody their livelihood, it could be argued that neither is violated by listening to a friend s music for a short time. Of course, if listening to your friend s music substitutes for your own purchase of the music, even the lenient opinion would prohibit it on the grounds that you are taking away the livelihood of the musicians. 2. Very often, software developers will attempt to lure customers by offering free trial versions of the software for a limited period of time. While many customers use the trial version for the allotted time and then make a choice whether or not to purchase the software, some continuously install trial versions in succession thereby avoiding any need to ever purchase the software. It would seem that the stringent view may consider this to be a form of stealing, while the more lenient position may consider it permissible on the grounds that nothing illegal is being done (and it is therefore not a problem of dina d malchusa). Clearly, it may still be a problem of costing the company their livelihood, certainly if the company is Jewish owned or employs a significant number of Jews. V. Conclusion We have outlined the various viewpoints developed by poskim toward the modern day problem of using copyrighted material, specifically as it relates to illegally downloading music from the Internet. While the exact Talmudic source that most precisely addresses this issue is a point of dispute, the general theme that emerges from the majority of poskim is that

8 102 one should be very careful about taking advantage of modern technology in this way, particularly as it relates to the livelihood of other people. The life of a Jew demands fulfillment of v asisa ha yashar v hatov (doing that which is right and good), which in turn highlights our role as a righteous and sanctified people. It should be emphasized that the requirement of yashar v tov is not merely a hashkafic concept, but a halachic obligation. The Ramban (Devarim 6:18) writes that the Torah could not possibly delineate every single action that a person may or may not do, and therefore provides an overarching obligation of doing that which is yashar v tov. Even in the absence of the ample source material mentioned in this essay, the basic sense of yashrus that a Jew must have demands that he hold himself to a higher standard and avoid activities that are illegal and unethical.