34 replies to this topic

[Rabbi Shapiro]

I am not saying anybody has to follow what I say - everyone can follow their own Rav - but I can only tell you what I think is correct.

Just writing something on a tape does not make it so, nor does it constitute an agreement. Remember - not long ago, it used to say on the tapes "This tape is sold on the condition it will not be reproduced." That went on for years, until they realized it's not sold on condition at all. The point is not what it says on the tape but the reality of what buyer and seller understand. Such a lease is not a real lease, as I explained above. As far as the Loshon is concerned, it was written very skillfully, and what it quotes in the name of "all preeminent poskim" is 100% correct, and nobody, including myself, would disagree with it. But it is not relevant to our discussion.

It says: Any misuse of this CD to facilitate copying is bona fide theft etc. That is true. But it does not say that all preeminent poskim agree that copying this tape if you would not have otherwise purchased another one constitutes "misuse." Note that the text does not say "Any copying of this CD is bona fide theft." There is a reason for that.

And when Rav Elyashev says he "agrees with the concept" it is also not a contradiction to anything. I did not hear that Rav Elyashev agrees with the psak that if you write this on the tape it is prohibited to copy it. He agrees with the concept that leasing a tape and withholding the rights to copy it would would prohibit copying. Or something to that effect. The "concept" is not the issue. The issue is if the concept applies the way they implemented it.

Again, everyone is free to follow their own Rav, and Rabbi Belsky shlita does not need my Hashkama. But I can only tell you what I believe.

[Moderator #3]

I was in a Judaica store today and looked at the CDs. The vast majority did not have such a "Lease Agreement" on them. The two that I found that did were both Shwekey CDs. Others, such as the YBC CD next to one of the Shwekeys, simply said that it is prohibited Halachicly to copy the CD under any circumstances.

And on each and every one of the Shwekey CDs that had the leasing agreement, the price label was stuck either partly or mostly on top of the agreement so that you couldn't read all or, in some cases most, of what it said.

I took one of the Shwekey CDs and brought it to the guy behind the counter, pointed to the leasing agreement and asked him what it means. He said "It's some legal thing. Has to do with the copyright I think."

I don't really believe that the customers who buy one Shwekey CD and one YBC CD, think that they are making two totally different types of transactions - one a purchase; and two, a lease with conditions.

I don't understand what we gain with this leasing agreement. The artists stand to lose more by it. If people are told they can't copy the tape if they would otherwise not have bought one, the artist never loses a penny. If we don't tell them that but instead make a "lease agreement" that nobody really considers meaningful, people will copy the CDs and the artists will lose money.

ממה נפשך - if someone will follow the Halachah if he is told he can't copy the CD instead of buying it, the artists can never lose a penny. If he will not follow that Halachah, he is most certainly not going to refrain from copying the CD because someone printed some lease agreement on it, that he never agreed to and probably never even read (even if the price sticker does not cover it).

The only concern is people being moreh heter to copy the CD by fooling themselves into saying they would not have bought another one. But that's not where the artists are losing lots of money from, and printing a leasing agreement on the back of the CD is not going to help. The artists will probably lose a lot less money by making a regular sale and telling people they are not allowed to copy the tape if they would have bought it.

[Menorah]

The question is can a person ever really know that he truly would not have purchased the CD if he didn't copy it? Perhaps, even though he now thinks he wouldn't have purchased it, he would have later decided to in fact buy it but now never will since he made a copy some earlier time.

Another thought is that even if he wouldn't have purchased a particular CD, he would have purchased a different CD from the same singer had he not copied the first one. Or if not that, perhaps he would have otherwise purchased a CD from a different singer but one that is produced by the same production company (producer) as the one he earlier copied. Or, if not that, he would have purchased a different CD from a local retailer had he not made an earlier copy.

So the issue that prevents copying a CD you would have certainly otherwise purchased ("taking business/income away"), can very well apply even if you wouldn't have otherwise purchased the CD.

Should these factors not preclude one from even copying a CD he wasn't planning to purchase?

[Rabbi Shapiro]

It's not that complicated. Many people will make a copy of the CD to use in their car, or to use in their computer for example. They'd never buy a new CD for that - not the identical one and not another one (besides, the prohibition doesn't work like that, but that's a long story). It's just a matter of convenience. The artist is not losing a penny here. There's nothing wrong with copying it like that.

[Menorah]

Rav Shapiro,

What about copying a friend's CD that you had no plans to purchase? Wouldn't my concerns expressed in my last comment possibly apply to such a situation?

[Rabbi Shapiro]

The question is can a person ever really know that he truly would not have purchased the CD if he didn't copy it? Perhaps, even though he now thinks he wouldn't have purchased it, he would have later decided to in fact buy it but now never will since he made a copy some earlier time.

Another thought is that even if he wouldn't have purchased a particular CD, he would have purchased a different CD from the same singer had he not copied the first one. Or if not that, perhaps he would have otherwise purchased a CD from a different singer but one that is produced by the same production company (producer) as the one he earlier copied. Or, if not that, he would have purchased a different CD from a local retailer had he not made an earlier copy.

So the issue that prevents copying a CD you would have certainly otherwise purchased ("taking business/income away"), can very well apply even if you wouldn't have otherwise purchased the CD.

Should these factors not preclude one from even copying a CD he wasn't planning to purchase?

If you would have bought a CD from the same company had you not copied the one you copied, don't copy it.

In general, the factors you mention really don't make a difference in and of themselves. If in your assessment, you are causing the artist (or the company) a loss, then you should not copy the CD. If not, then you can.

[Menorah]

Rav Shapiro,

But can one truly trust his own judgement on a matter that can either cost or save himself money, potentially at the expense of someone else (the artist/producer)? Perhaps, in his desire to save money, he is subconsciously suppressing the fact that he would in fact have made a purchase of a CD if he could not copy it, and is unfairly telling himself he would not have otherwise purchased it.

[Rabbi Shapiro]

A person has to be honest with himself. If he feels he cannot trust his judgement then he should not. But there is no Halachic reason that, if a person holds he does know that would not buy another CD, he needs to be concerned about a subconscious maneuver.

(Especially since it is not clear that the entire problem of יורד לתוך אומנתו של חבירו is a real Halachic prohibition to begin with. It's unethical and should not be done, but it is not at all that clear that it is an actual Halachic איסור. However, the main point here is not this but rather as I stated above - if a person holds he would really not buy the CD, there is no Halachic reason he needs to worry that he really would.)

[Ellie]

I recently was at a wedding where they had a famous singer. At the end of the wedding,they gave out a CD made specially for the wedding of his best songs. I left early so I didn't get one, but my sister who left later did. Am I allowed to make a copy of the CD if I was invited to the wedding, and could have gotten one?

[Rabbi Shapiro]

I recently was at a wedding where they had a famous singer. At the end of the wedding,they gave out a CD made specially for the wedding of his best songs. I left early so I didn't get one, but my sister who left later did. Am I allowed to make a copy of the CD if I was invited to the wedding, and could have gotten one?

Yes.

[Menorah]

Someone told me that Rav Moshe says it is an issur of "Gezel" to make a copy....

[Rabbi Shapiro]

There are three separate questions here:

One: Is intellectual property is recognized Halachicly? Example: If I compose a song, can someone come and make CDs of it and sell it without my permission? In this case, I did not even make a copy of a tape. I just made my own tape.

Two: If I make a tape for personal or commercial use that causes the artist to lose money because I would have otherwise purchased the tape.

Three: If I make a tape for personal use that does not cause the artists to lose any money at all.

I am discussing case #3. In the first 2 cases (which comprise the list of your sources), the artist is losing profit that he would have made by selling copies of his CD. Because of what I did, he will not make that profit.

But in case #3, the artists does not lose a penny. With or without my actions, he sells the same amount of tapes. My action does not impact on his life or his assets in the slightest. Therefore, there can be nothing wrong with my action.

[Menorah]

Can the Rov please clarify for me whether his position described allowing copying in the limited circumstances mentioned here would be disagreed with by Rav Moshe, per the relevant psaks in the Igros Moshe? If Rav Moshe's psak would not disagree with the Rov's position here, how would the Rov's position here fall within the parameters of what Rav Moshe prohibits in the IM?

Yasher Koach

[Rabbi Shapiro]

Can the Rov please clarify for me whether his position described allowing copying in the limited circumstances mentioned here would be disagreed with by Rav Moshe, per the relevant psaks in the Igros Moshe? If Rav Moshe's psak would not disagree with the Rov's position here, how would the Rov's position here fall within the parameters of what Rav Moshe prohibits in the IM?

Yasher Koach

I am not disagreeing with Rav Moshe. He is talking about people copying a tape instead of buying it in which case you are causing the artist a loss of revenue. In my case, you are not causing anyone a loss since you would not have bought it either way. The point is that you can not violate Hasagas Gevul or Gezel if you do not cause anyone a loss. In a case where your copying a tape causes someone else a loss of sales, it is prohibited. But if it does not cause them a loss, then there is no prohibition on the Torah that would prohibit you to copy it. And of course, if you have a doubt as to whether you would or would not have purchased the tape, then of course don't copy it.

[Catechizer]

The disagreement here is very narrow. I found this from Rabbi Belsky who was quoted above as disagreeing with Rabbi Shapiro. It appears he does not disagree at all with the underlying halachic principle that if you would not have purchased the tape there is nothing you forbidding you from copying it. 

 

 

QUESTION 76: DOWNLOADING AND COPYING MUSIC

I argue with people about the ethics of downloaded music files from the Internet. I say that downloading songs or copying your own songs to give to someone else, without a copyright owner's permission, or not compensating the owner, is stealing. What do you say about this?

RABBI BELSKY

Rabbi Moshe Feinstein ztl said that it's not permitted to copy any item that is being sold by the creator of that item. Every time you copy it, you're taking away sales from him. Anybody who downloads it, copies it, or does something else is really just turning someone else's money into ashes. And that's really the bottom line. It's taking something from someone else.

This is one of the areas where people say, "Everyone does it, and it really should be mutar (permitted)". People copy tapes and download from the Internet. Everything becomes "public domain". There's nothing private. People just download it and copy it and they'll wipe the owner out.

But even if everyone does it, it's wrong. You're taking away something from someone and you're harming him.

Sometimes people object to this argument and say, "Well, in that case, I'm probably not even allowed to copy down a shtikel (piece of) Torah that I heard." But that's not true - the Shach says "Ein gezel b'divrei Torah (there's no stealing when it comes to Torah)", that is, if you copy it down for yourself.

The guideline here involves whether or not what you're doing is taking away a sale from the owner. One might say, if asked this question, "Oh, I would never have bought that anyway." But in fact you shouldn't say that. You do like it ... and you would have bought it.

However, if you buy one and make a copy for yourself so that you can have, say, one in the car and one at home - that kind of copying is permitted. No one buys two of something for such a purpose, so copying the merchandise in this case doesn't take the place of a sale. If you told a person who wanted one copy for the house and one for the car that he had to buy two, then he wouldn't buy two. He would figure a way to carry it back and forth each time.

Since buying two copies for such a purpose is never done, then making a copy for yourself for two locations is not taking away a sale.

QUESTIONER

Is copying music a different type of stealing than any other type of stealing? Or is it just like any kind of stealing? Is there a principal that stealing is stealing and there are no distinctions? Is it just like walking over to someone with a gun? In this case we're talking about intellectual property. So is that a lesser degree of stealing?

RABBI BELSKY

The concept of 'stealing' intellectual property has limitations because in certain cases it is permitted to copy an idea. For example, if someone comes up with some idea about how to sell something, that idea is probably not subject to being copyrighted or patented. But a song is copyrighted, and people do business by selling records or tapes with songs. This is an item that brings a livelihood to people. Therefore, if you're taking it, you're taking away the livelihood of a person.

That's very important to remember. Someone sweated nights and invested money and time in order to create a certain item that the public is interested in, and then he's ready to sell it. And then it turns out that some Napster type of enterprise gets its hands on it, and people end up paying zero for it.

 

Nobody argues on Rabbi Shapiro's principle that "you can not violate Hasagas Gevul or Gezel if you do not cause anyone a loss." The only point of disagreement is that Rabbi Belsky is saying that someone who says he would not have bought the CD instead of copying it is lying to himself.  (One might say, if asked this question, "Oh, I would never have bought that anyway." But in fact you shouldn't say that. You do like it ... and you would have bought it.) Rabbi Belsky agrees that you can buy an extra copy of the CD for your car, because if you would not have bought it, you can copy it.

 

Rabbi Shapiro is simply saying that Rabbi Belsky's statement that you are lying if you say you would not have bought it is not always true. A copy for your car car is not the only case where you would not have bought it. But everyone agrees you can make a copy for your car, Rabbi Belsky is saying that a car is the only case where you would not copy it. (I personally could swear on a sefer Torah that many CDs that I would not buy, I would nonetheless use if I could get them for free. I think that is pretty obvious. I don't understand why Rabbi Belsky insists that  everyone is lying to themselves about this.) But irregardless of all that , there is nobody arguing in the halacha and the question is only people's honesty. Everyone agrees that if you would not have bought the CD you can copy it.