The rapid development of technology over the past few centuries has certainly left an impact on the world of halacha¸ or Jewish Law. Poskim, the formulators of the halacha, have had to make decisions on a variety of topics to accommodate fast-paced advancements in areas ranging from travel (When does one crossing the International Date Line celebrate a holiday?) to home appliances (Under what circumstances may one use a refrigerator on the Sabbath?). One issue that has been particularly relevant in recent years is that of digital piracy. The ubiquity of personal computers, the Internet, and the spread of peer-to-peer programs like Napster and BitTorrent have made a never-ending stream of media accessible to many Orthodox Jews. Naturally, this has kindled an interest in the matter of copyright. Does Jewish Law provide any protection to the author of an original work? What are the halachic implications of violating a copyright?
These questions were particularly troubling to me, as I am an avid pirate, regularly sharing gigabytes of music, movies, and software a week. Of course, as a practicing Orthodox Jew, I wanted to be sure that I was not violating any halachic prohibitions. Thus began my voyage through the vast sea of Jewish Law for clarity on this issue.
Soon after starting this project, though, it became clear that there would be no simple answer to these questions. Most of the rabbinic literature on the topic of intellectual property rights deals with physical media such as books and audio tapes. How these rulings apply to digital piracy is not always obvious. Furthermore, many of the responsa are terse and cryptic. This is increasingly frustrating when the rabbis, as they often do, disagree with each other. For these reasons, I decided that I was not prepared to choose a side of the debate. What follows is an overview of some of the legal models used by the poskim to reach their respective positions.
In an article published in Techumin, an Israeli halachic journal, Rabbi Zalman Nehemiah Goldberg, rosh yeshiva of Sadigua and the Jerusalem College of Technology, deals with a particular set of questions involving the legality of making unauthorized copies of audio cassettes. To answer these questions, Rabbi Goldberg writes a detailed analysis of a novel approach to the issue of copyright: shiyur.
To understand the legal concept of shiyur, Rabbi Goldberg describes a case from the Talmud. This case involves a person who gives a coin to a poor man, stating that he may only buy a shirt with the money. The poor man is not legally permitted to purchase anything other than a shirt. The Talmud explains that this case is an application of the rule of “whoever violates the wishes of the [original] owner is considered a thief” (Bava Metzia 78a). But what exactly is the poor man stealing? Rabbi Goldberg first presents the possibility that he is stealing the coin, as he only acquires the money on the condition that he...