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DownloadingMusicfrom

SharingWebsites
RabbiAryehLebowitz

RabbiAryehLebowitzistherabbiofBeisHaknessesofNorth
Woodmere and Maggid Shiur in DRS as well as HALBs
posthighschoolyeshivaprogram,YeshivatLevHatorah.

I.Introduction
PartofthemagnificenceoftheTalmudisthatthereisvery
rarelyanecessitytowritenewprinciplesaftertheTalmud.The
rabbis of the Talmud not only discussed specific cases, but
providedalogicalconstructforlaterrabbistoworkwithin.The
halachicpermissibilityofdownloadingmusicfromtheInternet
may seem to be a new issue that obviously cannot be found
explicitly in classical rabbinic sources. However, as with
(almost) all technologydriven questions, the application of
ancient principles guides us in understanding our obligations
andresponsibilitiesinthemodernworld.Inthisessaywewill
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
notedthatthisdiscussiondoesnotincludethedisseminationof
divreitorah,asthehalachosmaybedifferentlyinfluencedbythe
responsibilitythataJewhastosharehisTorahwithothers(see
Shach, Choshen Mishpat 292:35, Rama 292:20 and Meishiv Davar
I:24).

II.Ethicalconsiderations
We associate sharing with generosity and kindness. The
termmusicsharingsitesisprobablyasubconsciousattempt
to rationalize behavior that we would otherwise dismiss as
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illegal and therefore unethical. People tend to justify the


propriety of downloading music without paying for it in
severalways.

Unlike stealing from a retail shop, where one would


physically take an item that does not belong to them and
removeitfromthepossessionofitsrightfulowner,whenone
downloadsmusictheyreasonthattheyhaventtakenanything
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
reasonabletoassumethatthepeoplewhoinvestedthemoney
tobuildthebridgehavetherighttochargemoneyforusingit.
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(Kidushin59a,referringtoacaseofafisherman
who has put out bait in a specific area) writes that when one
has invested in a business endeavor, others are not permitted
totakeadvantageoftheinvestmentfreeofcharge.
Anothercommonargumentisthatpreventingonewhohas
noplansofpurchasingthemusicfromdownloadingitforfree
is aform ofmiddasSedom.The conceptofmiddas Sedomis
that if one party stands to gain from a transaction, while the
other partydoes 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
wouldthereforebepracticingaformoftyrannybypreventing
peoplefromenjoyingmusicatnocosttothecompany.Among
other weaknesses, this argument can only be made if one is

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certainthatabsentthepossibilityofafreedownload,hewould
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


Sedomisnotparticularlycredible.Tosafos(BavaBasra12bs.v.
kegon)speaksaboutasquatterwhoenjoyslivingonaproperty
thatisnotcurrently beingusedby theowner.Whilecharging
thesquatterrentwouldbeaviolationofmiddasSedom,Tosafos
pointsoutthatitisabsolutelyforbiddentosquatonsomebody
elsespropertyinthefirstplace.Inotherwords,theconceptof
middasSedomonlylimitstheabilityoftheproprietortocharge
forservices,butitdoesnotentitlethebeneficiarytopartakeof
the benefit. If this applies to one seeking shelter, it should
applyafortiori,toonewhodownloadsmusic.Indeed,onemay
arguethatdownloadingmusicisitselfanactofmiddasSedom.
The Gemara (Sanhedrin 109a) records that Soddomites would
steal tiny quantities that on their own do not have real value,
butthecostofretrievalforthevictimissubstantial.Similarly,
downloadingasongisbyitselfinsignificant,butthecosttothe
companyofmillionsoffreedownloadsisprohibitive.

III.TheStrictApproach
In the recently published book, Copyright in Halacha, the
author,RabbiNachumMenasheWeisfish,consistentlyrefersto
two basic approaches to the issue of taking intellectual
property,whichhereferstoasthemajorityopinionandthe
minority opinion. Rabbi Weisfish does not explain precisely
howhedeterminedwhichopinionwasinthemajority.Forthe
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
severalimportantpracticaldifferencesbetweenthem:
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

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stealing the same way that taking tangible property is


considered stealing. (Rav Feinstein speaks of making an
unauthorizedcopyofatapeasbeinganissurgezel.)Whena

person conceives of an idea and makes it accessible to others


foraprice,hemaintainsownershipoftheidea.Thisownership
ismaintainedforanindefiniteperiodoftime,evenabsentlocal
copyright laws. Therefore, there would be no difference
between one who would otherwise not buy the material and
onewhowouldhaveboughtthematerial.Ineithercase,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,
stealingisprohibitedregardlessofwhetherthevictimisJewish
or not. Accordingly, downloading secular music would be
prohibited. The exact halachic source for the idea of stealing
intellectualpropertyissubjecttosomedebate.
ResponsaMachaneChaim(ChoshenMishpatII:49)pointsouta
possible precedent to the notion of stealing intellectual
property from the Gemara (Sanhedrin 59a) which prohibits a
nonJewfromlearningTorahonthegroundsthattheTorahis
considered an inheritance (morasha) for the Jewish people,
and for nobody else. Apparently, even though the nonJew
who learns Torah is not stealing anything tangible, he is
considered to have misappropriated intellectual property not
intendedforhisuse.
Maharam Schick (Responsa, Yoreh Deah 156) rejects the
viabilityofthehalachaofanonJewlearningTorahasasource
for intellectual property in general. First, the Gemara is likely
speakinginanhashkaficratherthanastrictlyhalachiccontext,
using the term gezel only as a nonliteral expression. The
GemarassubsequentcomparisonofanonJewlearningTorah
to adultery seems to demonstrate a clear aggadic tone to the
Gemara.Second,consideringitsDivineorigin,Torahmayhave
a unique status that cannot be equated with other intellectual
property.

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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
considersapitthatonedigsinapublicthoroughfaretobelong
tothepersonwhodugitvisavisthedamagesthatarecaused
bythepit.Whiletheindividualwhodugthepitiscertainlynot
the owner of any tangible section of the public thoroughfare,
hiscontributiontowardreshapingitgainshimacertainsense
of ownership of it. Similarly, argues Rav Shkop, one who is
recognized astheperson who developedanidea, even absent
technicallawsofownership,isconsideredbythehalachatobe
theowneroftheintellectualproperty.
Onecanquestiontheequationofliabilityfordamageswith
rights of ownership. It is entirely possible that one can be
consideredtheownerintermsofestablishinghisliabilityfora
pithehadduginthepublicdomainandstillnotassumethat
heisgrantedanyrightsofownership.
Rav Zalman Nechemia Goldberg has pointed to a Gemara
in Bava Metzia (34a) which allows one to sell a sheep while
retainingtherightstofutureproductionforoneself.Similarly,
onemaysellacomputerprogramormusic,whilestillretaining
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
originallypaidforthemusicfromusingit.
Rav Yosef Shaul Nathanson (Responsa Shoel uMaishiv
I:1:44)arguesthatasourcetoconsiderthemisappropriationof
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
maintainalowerstandard.

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IV.Thelenientapproach

Rav Shlomo Zalman Auerbach (cited in Copyright in

Halacha) maintains that the Torah


does not recognize the
conceptofintellectualpropertyandmisappropriationofany
such property would not fall in the category of stealing.
However, even so, there are several other halachic problems
withillegallydownloadingmusic:
TheGemarainseveralplaces(Nedarim28a,Gittin10b,Bava
Basra54b,amongothers)teachesusthat(atleastwithregardto
monetarylawbetweenaJewandagentile)thelawoftheland
isthelaw.SinceitisillegalintheUnitedStatestodownload
copyrightedmusic,itwouldbehalachicallyprohibitedtodoso
aswell(seeBeisYitzchak,YorehDeahII:75).
The Tur (Choshen Mishpat 368) develops a concept of
minhagbneihair(thecustomofthepeopleofthecity),which
is a particular restriction, even if not technically law, that is
agreeduponasethicalpracticeinthatparticularcity.Jewsare
boundtoobservethatpractice,andareperhaps,asmemberof
society,assumedtohaveagreedtoitssocialconventions.One
may argue, however, that the proliferation of sharing
websites is evidence to an absence of an established minhag
bneihairinthiscase.
A third concern relates to the prohibition discussed in the
Gemara (Bava Basra 21b) to take away another persons
livelihood. Obviously, if nobody pays for music it would be
verydifficultformusicianstomakealiving.Somemightargue
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 nonJews
(though many artists and record company executives and
employees are Jewish). (See Responsa Chasam Sofer, Choshen
Mishpat49,69and79.)
While it would seem that all agree that one should avoid
illegallydownloadingmusic,theremaybepracticaldifferences
betweenthestringentandlenientpositions:

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1. Whetheronemayborrowanmp3devicefromafriend
who has illegally downloaded his music, even for a
shortperiodoftime,mightbesubjecttodebatebetween

these two opinions. If the problem is one of stealing,


oneshouldnotusestolengoodsatall.If,however,the
only concerns are those of dina dmalchusa dina and/or
costing somebody their livelihood, it could be argued
that neither is violated by listening to a friends music
for a short time. Of course, if listening to your friends
music substitutes for your own purchase of the music,
even the lenient opinion would prohibit it on the
groundsthatyouaretakingawaythelivelihoodofthe
musicians.

2. Very often, software developers will attempt to lure


customersbyofferingfreetrialversionsofthesoftware
foralimitedperiodoftime.Whilemanycustomersuse
the trial version for the allotted time and then make a
choice whether or not to purchase the software, some
continuouslyinstalltrialversionsinsuccessionthereby
avoiding any need to ever purchase the software. It
wouldseemthatthestringentviewmayconsiderthisto
be a form of stealing, while the more lenient position
mayconsideritpermissibleonthegroundsthatnothing
illegalisbeingdone(anditisthereforenotaproblemof
dina dmalchusa). Clearly, it may still be a problem of
costing the company their livelihood, certainly if the
company is Jewishowned or employs a significant
numberofJews.

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
musicfromtheInternet.WhiletheexactTalmudicsourcethat
most precisely addresses this issue is a point of dispute, the
generalthemethatemergesfromthemajorityofposkimisthat

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oneshouldbeverycarefulabouttakingadvantageofmodern
technology in this way, particularly as it relates to the
livelihood of other people. The
life of a Jew demands

fulfillment of vasisa hayashar vhatov (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 vtov is not merely a hashkafic
concept,but a halachic obligation. The Ramban (Devarim 6:18)
writesthattheTorahcouldnotpossiblydelineateeverysingle
actionthatapersonmayormaynotdo,andthereforeprovides
an overarching obligation of doing that which is yashar vtov.
Evenintheabsenceoftheamplesourcematerialmentionedin
this essay, the basic sense of yashrus that a Jew must have
demandsthat hehold himself to a higher standard and avoid
activitiesthatareillegalandunethical.