Intellectual Property: When Halacha Has to Deal with New Categories

It is always fascinating to see how poskim deal with issue, concepts, and categories that are new to Halachic discourse. They have many options at their disposal – they can integrate them, ignore, them, or find precedent to explain why they are not new at all. One telling example is the question of intellectual property and copyright law. Classically, Halacha recognized ownership of tangible objects. The paradigm of stealing was the case of a weapon being stolen out of someone’s hand. Ideas were not owned. Even more than that, it was often acceptable to copy others ideas – it was a sign of respect. For example, the fact that a large majority of Chiddushei HaRashba and Ritva copy the Chiddushim of the Ramban is a sign of the prominence of the Ramban, even when they don’t cite him directly.` However, when the outside world started recognizing a notion of intellectual property, poskim had to decide how to respond. The shiur and sources are available here .
One approach was to allow the fact that the world recognized this category to directly affect the Halachic system. This was the approach of the Shut Shoel UMeshiv. Before attempting to provide a Halachic framework, he argues that if secular law recognizes intellectual property – לא תהא תורה שלנו כשיחה בטלה שלהם – it can’t be that our law is not as complete as theirs. If the whole world recognizes people’s rights to their own creations, even on the level of ideas, we do as well. Once he has established this, he notes that “stealing” this type of property would be hasagat gevul, taking away from someone else’s livelihood. However, the basic recognition of that category stems purely from the conviction that Torah must recognize that which is compelling morally and legally to the rest of the world. [Of course, this all assumes that there is nothing in the Torah that militates against this notion. No one thinks we just give in to outside morality when it contradicts Torah.]
The Beit Yitzchak took a totally different approach. He was not bothered by the possibility that secular law and morality could posit a category that Halacha did not, and thus asserted that m’ikar hadin it did not exist. However, he noted that we could integrate intellectual property into a category that is definitionally extrinsic – dina demalchut dina. Halacha’s assertion that we must respect secular law provides a mechanism by which we can functionally accept secular law without integrating its values into our system.
[I also included a teshuva by Rabbi Moshe Feinstein – see there for details.]
Rabbi Asher Weiss, in a shiur I heard last year, had a few suggestions. First, he asserted that Halacha must recognize intellectual property for the very simple reason that it is real. Who can deny that the ideas of Steve Jobs at Apple have more value than an apple?! In other words- misvara, we must recognize the truth to the claim that there is intellectual property. I will note that I have always been impressed by Rabbi Asher Weiss’s common sense as a posek, embracing that Halacha must make sense. Second, there is a notion of minhag hasocharim – the norms accepted by the business community must be accepted.
The third, most brilliant ledaati, which finds precedent for this elusive category, is the category of chamas. Chazal explain that the sin of the dor hamabul was that they would each steal less than a shaveh perutah. Thus, in the aggregate they would destroy people’s livelihood, but none of them could be prosecuted in court. From here he argued that there is an issur to do something, which while not formally theft, lends to a society that destroys other people’s financial well being. If no one respects intellectual property, then inventors, writers, and the like will have no way of supporting himself. Thus, even if no one can properly be called a gazlan, they have all participated in chamas.
All of these positions can and should act as models of how to deal with new issues that arise in Halachic discourse.

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