Although the Torah does not have a concept of intellectual property, it is clear to me that a Jewish person is required to respect the laws of intellectual property.

In “Halachah and Copyright Laws,” which originally appeared in “Gray Matter: Discourses in Contemporary Halachah,” (Teaneck, NJ, 2000) and is available online at http://www.torahlive.co.il/templatebild/tipsresources/Halacha%20and%20Copyright%20(Jachter).pdf, Rabbi Howard Jachter discusses five halakhic approaches that find halakhic ground for respecting laws of intellectual property. Each one of these grounds is quite convincing. The arguments include general arguments, such as a Jew’s responsibility to do what is proper in God’s eyes (c.f. Deut. 6:18), which would include respecting internationally accepted rules of conduct, and the Jew’s obligation to respect the law of the land (dina d’malkhuta dina). Other arguments revolve around reasonable extensions of Talmudic precedents, such as the Talmudic recognition that a person may sell a sheep while retaining the rights to the wool produced by the sheep (by extension, it is argued, one may sell one copy of a recording, but retain the right to any copies of that recording).

To Rabbi Jachter’s able review, I would add the observation that the Rabbis recognized a prohibition of “g’nevat da’at,” which literally means “stealing of knowledge,” but refers to deception. It is striking that the Rabbis equated deception with stealing. It seems to me that the language of “stealing of knowledge” demonstrates that the Rabbis believed that people have a right to expect honesty, and that a person acting deceitfully is “stealing,” since s/he is violating the other person’s rightful expectation of honesty. This seems to demonstrate that within halakha one has “property” that goes beyond physical items. Therefore, I believe halakhic thinking is quite amenable to the concept of “intellectual property.”

As Rabbi Jachter notes, a Jew should obey the laws of civil society. Additionally, intellectual property laws are an essential part of the way business works today. It is worth noting that financial gain is an important motivation for inventors and artists, and through intellectual property laws, society seeks to strike a delicate balance between helping to facilitate these innovations and creations, and allowing society to enjoy those creations.

Under current law, writers, artists, and inventors do their work with the expectation, based on laws recognized throughout the world, that they will have certain rights in the intellectual fruits of their labor, and that they may choose how to allow others to acquire rights to enjoy those fruits. Therefore, to use the example in the question, an artist is within his or her rights to permit recording at a live concert, but to charge money for downloading a song or album. To violate the artist's rules is to use their property without their permission, and, to my mind, is a very real form of stealing.

Most of this analysis is predicated, of course, on respecting civil law, both because we are required to respect civil law and because that law creates certain expectations on the part of the artist/inventor. Therefore, if an artist restricts his or her intellectual property in a way that is contrary to the law, halakhah would not require us to respect that restriction. Similarly, halakhah would recognize the “fair use” doctrine, which allows certain uses of the intellectual property of another. In this regard, I would echo the final words of Rabbi Jachter on this issue, that, “consulting with attorneys who are well-versed in copyright laws can be useful when rendering halachic decisions about these matters.”

Somehow, I find it hard to accept that this is what Rav Elyashiv actually said. From what I know, this is a copyright law which is the law of the land, and it makes little sense that Rav Elyashiv would ignore this.

 

So, having no evidence aside from hearsay, I am assuming it is a misquote.

 

As to your own band issue, it seems clear that they do not mind the concert recording precisely because it is not sterling quality. Ignoring the rules is not kosher. Why not send them a letter asking them? That way you will be sure. Who knows - they may actually send you a free first rate copy. 

Music, just like books, DVD’s, and computer software all fall within the category of “intellectual property.” That is to say, this is property comprised of intangible assets, including copyrights, trademarks, patents, and industrial designs. In the United States, intellectual property, is afforded its own legal category wherein owners are given exclusive rights. Copyright and trademark laws, for example, ensure that such rights to such property are not violated.

 

Until relatively recently, Jewish law has minimally addressed the question of intellectual property. Joseph Karo (1488-1575), for example, is cited as saying that “one cannot acquire an object that does not have physical existence” (S.A. Choshen Mishpat 203:1). By the 19th century, however, the Arukh Ha-Shulchan remarks that in some countries where it is law or custom for individuals to acquire intangibles (A.S. 212:3). It is important to note here that the printing press was invented in the second half of the 15th century, which exponentially increased the quantity of intellectual property. Now with the advent of digital material, intellectual property exists at a level difficult for many to entirely grasp.

 

There are essentially four Jewish principles that would prohibit the copying of copyrighted material.

 

1) Dina d’ malchuta dina. This is the Talmudic principle which states, “the law of the land is the law,” implying that we are halakhically obligated to follow the laws of the land we live in. Generally speaking, given that copying copyrighted material in the U.S. is illegal, so too does it violate Jewish law.

 

2) It is the right and good thing to do. The Book of Deuteronomy (6:18) states: “Do what is right and good in the sight of the Lord…” Nachmanides (1194-1270), utilizing a midrash from the Talmud (Bava Kamma 100a) interprets the verse include both explicitly commanded laws and implicitly commanded laws. He says, “Now this is a great principle, for it is impossible to mention in the Torah all aspects of man’s conduct with his neighbors and friends, and all of his various transactions, and the ordinances of all societies and countries.” Applied to our case, the Ramban is saying that even though this law is not specifically mentioned in the Torah, it embodies the spirit of what the Torah would certainly prohibit.

 

3) Hasagat Ha-g’vul. This is the Talmudic principle that defines illegal encroachment. The classic example for this in the Talmud (Bava Batra 21a-b) describes fisherman encroaching upon another’s fishing hole. Clearly the fish there are still swimming freely for all to catch, but the area has been defined by the claim of potential business of the invested fisherman there. Applied to our case, the owners of the copyright invest in producing a CD and the potential profit of profiting from its distribution. If we copy the CD and share it with others (or even sell it to others), we encroach upon and potentially capitalize on their business investment, causing them a loss.

 

4) Theft. The Talmud (Bava Metzia 34a) discusses the case of an owner of a sheep. There it distinguishes between the difference between owning the sheep and owning its wool and future offspring. Applied to our case, an artist or music studio owns the music, but produces CD’s for stores to sell so that listeners may enjoy it. In other words, they are not selling you the music itself but the enjoyment of the music. They still maintain the copyright or exclusive right to produce whatever they may as it pertains to the music.

 

In conclusion, although intellectual property is a slippery concept, it is nonetheless prohibited to copy a CD or any form of intellectual property without permission. Many contemporary halakhic authorities have already ruled similarly including Moshe Feinstein where he says that making copies of cassette tapes of Torah lectures without permission is stealing (Iggrot Moshe vol. 4 40:19).

 

 

The Conservative Movement has also ruled accordingly and I encourage you to read the 2007 teshuvah on intellectual property authored by Rabbi Barry Leff www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/leff_IP.pdf?phpMyAdmin=G0Is7ZE%2CH7O%2Ct%2CZ1sDHpI8UAVD6

 

 

Regarding your second question, it seems that the band has given you permission to record their concert and share it for free. In this case they have forfeited their exclusive right to the intellectual property of the music at live concerts.

 

 

 

 

Intellectual property is property, and theft is theft. It is as simple as that. When you copy the work of another for your own personal use, you are stealing from him.  Whether your theft is first  hand or second hand, it is theft. In other words, you are receiving stolen property.