Copyright And Software Piracy

In February of last year, at an event in Bucharest attended by Bill Gates of Microsoft, the Romanian president, Mr. Traian Basescu, apparently made an astounding statement. Allegedly, he claimed that software piracy (unauthorised duplication of software, such as Microsoft Office products) helps the younger generation discover computers and that it is an investment in Romania’s friendship with Microsoft! It is unlikely that either Mr. Gates or those software pirates languishing in jail for infringement of copyright were especially sympathetic to Mr. Basescu’s views.

‘Piracy’ of this sort has a long history in Jewish sources. Some 450 years ago Rabbi Meir of Padua published a new version of the Rambam’s halachic work Mishneh Torah. Subsequently, a Venetian nobleman, Marco Antonio Justinian, also published an edition of the Rambam, which his detractors claimed would leave Rabbi Meir with many unsold copies. Rabbi Moshe Isserlis of Cracow (d. 1572) upheld Rabbi Meir’s right to sell his stock before the other edition reached the market; meanwhile, he forbade his followers from buying the Venice printing. In 18th-century Livorno, a dispute arose between the author of an edition of the Mishnah and his printer. After publication, the printer removed the author’s commentary from the plates and reused them! Rabbi Yechezkel Landau of Prague (d. 1793) ruled that the printer must compensate the author for his loss.

Legislating rights and responsibilities towards such non-tangible entities as copyright is complex: these landmark rulings were vital steps in the development of halachic attitudes towards intellectual property. We see application of this is legislation nowadays to the problem of software piracy.

It is tricky to identify early Jewish sources that discuss title to intangibles - one that establishes a legal right to a concept or other kinds of non-monetary commodities, the development of which required the investment of expertise, resources or time. Such a source could be used to derive a Jewish view of software piracy.

The Talmud (Kiddushin 59a) records the case of a hungry pauper who discovers a cake; before he picks it up, however, someone else snatches it. The Rabbis describe the ‘snatcher’ as ‘evil’, since he has exploited the pauper’s efforts; however, he is not a ‘thief’, nor is the case actionable. We see that effort alone (which equates in our study to intellectual property) does not confer title, an idea supported by the maxim, ‘one who quotes a statement in the name of its originator brings redemption to the world,’ (Megillah 15a). Using someone else’s ideas without acknowledgement is not actually a crime, just bad manners.

Another permissive view of intellectual property could be based on the rules governing squatters. If a squatter continues to live in a property that is usually rented, he must pay rent after the landlord has served notice. This is because financial benefit accrued by one person, even if there is only a potential loss to another, is claimable. This has ramifications for software piracy. One argument advanced to justify copying is that if one has no intention of buying the product, the manufacturer incurs no loss. If the software is duplicated exclusively for private use and none of the people who use it (or secondary copies made from it) would have bought it (all highly improbable), there might be room for a lenient ruling.

Others adopt a less accommodating position. Following the law that someone entrusted with a manuscript may not copy even one letter from it without authorisation, Rabbi Moshe Feinstein (d. 1986) prohibits translating book segments without the author’s permission. Accordingly, it would be forbidden to duplicate software without consent. Furthermore, the Talmud asserts that whenever a purchaser breaks the conditions of a contract, compensation is payable; indeed someone who ignores the wishes of the ‘owner’ is termed a ‘thief’. Following this, in a responsum about copying music, Rabbi Z.N. Goldberg (contemporary) notes that even after the sale, the original owner is entitled to retain some aspects of ownership. Halachah would thus recognise a software developer’s right to withhold permission to copy the product, and duplication would qualify as theft. Additionally, Rabbi J.S. Nathanson (d. 1875) asserts that ‘logic’ asserts authors’ halachic rights to their works.

We have examined some ingenious responsa, many of which suggest that halachah forbids software piracy. Of course, Jewish law anyway asserts ‘dina demalchuta dina’ (e.g. Nedarim 28a) – in financial matters, at least, once must defer to the law of the land. As software copyright is certainly regulated by English law, halachah obliges one to adhere to the terms of the purchase agreement.

Side bar

In conclusion, the rabbi wins the case and he has the right to sell his books first, and the only newly-printed edition of Maimonides that one may purchase is the one published by the rabbi. (Responsa Rama – Isserlis – 10)

The printer has caused the author great loss, for if it were not for this new edition, he would have had many more purchasers. (Responsa Noda BiYehudah – Landau – CM 2:24)

Someone who lives in a courtyard without permission must pay rent, whenever the owner intended to rent the courtyard. (Bava Kama 20a, paraphrased; Shulchan Aruch Choshen Mishpat 364:6)

Just as one may not read a (deposited) manuscript, one may not copy even one letter from it. (Shulchan Aruch Choshen Mishpat 292:20)

It is forbidden to translate laws from my works… Some already asked me permission, which I refused. (Responsa Igrot Moshe – Feinstein – YD 3:91)

Anyone who ignores the wishes of the ‘owner’ is called a ‘thief’… If one gives a pauper a coin to buy a shirt, he may not use the money to buy a cloak, since he ignores the wishes of the donor. (Bava Metzia 78a-b)

When one sells an item, one may retain certain rights over it… A cassette vendor may retain sole rights of duplication… Ignoring this is like theft, for with respect to duplication, the cassette is not his property. (Rabbi Z.N. Goldberg, Techumin 6)

An author’s rights to his works are universally established; to say otherwise is illogical… (Responsa Shoel UMaishiv – Nathanson – 1:1:44)

A version of this article first appeared in the Jewish Chronicle. It is republished here with permission.