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NODA B'YEHUDA and the CITY OF PRAGUE

THE CONCLUSION OF THE ARTICLE FROM HISTORICAL ACCOUNTS PAGE 6:

Reprinted with the permission of the editor of Jewish Law ( jlaw.com ).

Jewish Law and Copyright
Rabbi Israel Schneider

Photocopied Handouts

Rabbi Shmuel Wozner addresses the issue whether a teacher is permitted to photostat one article or essay, out of an entire publication, for classroom Ose.31 He rules that the copyright restrictions would not apply in this case. Although Rabbi Nathanson's extended definition of the copyright concept includes reproductions of an entire work, with but minor changes, it does not include the copying of a mere fraction of a publication. Consequently, a teacher who uses these photostated handouts is not in infringement of the author's rights. He does add, however, that the copies should not be circulated to the public but rather used only within the classroom setting. Rabbi Wozner comments that the teacher who uses photocopied material for classroom usage is not only well within his legal rights, but, in addition, has performed a mitzvah by sparing the students the additional expense of purchasing books unnecessarily!

Sometimes it may happen that one Posek's "Mitzvah" is another Posek's "Aveirah". Rabbi Yaakov Blau questions Rabbi Wozner's conclusion and advances that opinion that although a teacher would be permitted to copy an article for personal use, it would be prohibited to copy an article for classroom distribution.32 In the opinion of this writer, this dispute might hinge upon the aforementioned grounds for halachic protection of copyright. If the halachic legitimacy of copyright is based upon the statutory protection provided by civil law, it stands to reason that any exclusions which might exist in the civil law provisions will, similarly, be recognized by halacha as valid. Since the Copyright Act codifies the so-called "doctrine of fair use" as a limitation on the rights of copyright holders, then halacha too will award the public this benefit. If, however, there exists an independent halachic interdiction against the pirating of literary creation, then, it can be argued, this prohibition extends beyond the reach of the civil law.

Conclusion
Based on the above, it is clear that sufficient halachic grounds exist to protect an author's proprietary interest in his work. Indeed, Rabbi Moshe Feinstein33 rules unequivocally that one is prohibited to copy a Torah (cassette) tape without the explicit consent of its creator. From the phrasing of the responsum, it cannot be determined which line of reasoning was employed by Rabbi Feinstein. He adds, however that one who illegally copies a tape has committed a form of theft.

Obviously, this essay does not claim to be a comprehensive study of all the ramifications of copyright law within the context of halacha. Nevertheless, it may serve as a guideline to the many questions which still require definitive rulings.

NOTES
Rabbi Israel Schneider - Member of Kolel, Teishe Yeshiva; Researcher, Ofeq Institute

1. Responsa Chatam Safer, Choenen Mishpat, no. 41.
2. Rabbi Moshe Isserles, Responsa, no. 10
3. Encyclopedia Pachad Yitzchak Vol. 10. p. 157b, Takanot She'nitkinu.
4. Techumin, Vol. 6 (5745), p. 179.
5. Responsa Chatam Sofer, Vol. 6, no. 57.
6. Responsa Parashat Mordechai, Choshen Mishpat, nos. 7 and 8.
7. Responsa Chatam Sofer, Choshen Mishpat no. 79; Volume 6 no. 59.
8. Encyclopedia Judaica, Vol. 7 p. 1454. While a great portion of these "haskamot" were written for original works, nevertheless, many were issued for books already in the public domain.
9. Nodah B'Yehuda, Volume 2, Choshen Mishpat no. 24
10. Bava Kamma 20a
11. Techumin, Volume 6, (5745), pp. 195-197
12. Cited by Tosafot, Ketubot 98b.
13. Ibid.
14. Responaa Chatam Sofer, Choshen Mishpat no. 41; ibid no. 79; ibid no. 89; Volume 6, no. 57.
15. Bava Batra, 21b.
16. Defined there as one Parasang (appx. 2 1/2 miles).
17. Cited by Tosafot, Kiddushin, 59a.
18. It is interesting to note that Rabbi Sofer's analogy was later employed by a twentieth century author. "What happens to a poet when he poaches upon a novelist's preserves...." (Virginin Woolf).
19. Responsa, Yoreh Deah, Volume 2, no. 75.
20. Mar Shmuel's principle, cited in Nedarim 28a.
21.The responsum was written in Przemysl, a city in Galicia (Austrian Poland).
22. Sefer HaTerumot. 46:8.
23. Cited in Sefer HaTerumot, ibid.
24. Yoreh Deah, 165:8.
25. See Journal of Halacha and Contemporary Society, Vol. 1 no. 1, pp. 122-125, for Rabbi Hershel Schachter's treatment of the subject. In addition to the source material cited there, see Shiurei Halacha Rabbi Yosef Yehuda Leib Block, p. 57. It seems to this writer that copyright legislation meets the criterion developed by Rabbi Block for the applicability of halachic legitimacy for "Dina De'Malchuta Dina".
26. Techumin, Volume 6, (5745), pp. 181-182.
27. Ibid. pp. 185-207.
28. Bava Metziah, 34a.
29. See, however, Techumin, Volume 7, (5746). pp. 360-380, for debate between Rabbi Nechemia Zalman Goldberg and Rabbi Naftali Bar-han about validity of sale with seller's retention of intagibles.
30. Responsa Shoel U'Meshiv, Mahadura Kamma, 1, no. 44.
31. Responsa Shevet Halevi, Volume 4, no. 202.
32. Pitchei Choshen, "Laws of Theft and Fraud," p. 287, note 27.
33. Responsa Iggerot Moshe, Orach Chayim, Vol. 4, no. 40 sec. 19.

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