wjohn@reed.UUCP (Willis Johnson) (08/04/85)
*** REPLACE THIS LINE WITH YOUR MESSAGE *** This is a slight revision of a letter which I sent to Eliyahu Teitz. Now that Reed is out of cherem (vide articles in net.news & net.micro.mac) I'm reposting to the net. **************** I just read the entire backlog of net.religion.jewish articles. I hadn't realized that there were so many chareidim out there. I'd always thought my own romance with technology to be aberrant. I wonder what the ARI z'al would have thought of this newtwork by which weekly sedra lessons are zapped by phone, microwave & satellite le kol afsei haaretz. Do you suppose that, per the Benei Yisesesachor, Ma Bell's infrastructure will some day, suddenly crumble as it yields up its last netzuts kedusha with the posting of the address of a kosher bakery in Albuquerque? A friend posed me a question the other day & it's given me pause. "What are the Talmudic /ethical implications of using stolen software?" Out here in the hinterlands (I'm in Portland, Oregon) where even an Igres Moshe is impossible to find, I get asked some very difficult questions by my very modern friends. [Gabei kedushas ha-shem, by the way: I read a couple of articles from people who were questioning the sanctity of shemos in binary or magnetic form. There's a teshuva in Igres Moshe on that topic. He poskins that they are not holy. I can't provide you with a citation as, out here in the hinterlands...] So, I'm writing to you in the hope that we might engage in some divrei torah via computer mail. * * * * * * * * * * Hanidun: Are computer programs property? What constitutes property and does ownership extend to ideas? In what ways might intellectual property differ from tangible property? Commercially marketed software is ordinarily said to have a "half life" based on the amount of time which will pass before it becomes readily available at no cost from sources which do not pay royalties to the copyright holder. If the copyright holder acknowledges in advance that his product is "perishable" does that constitute a de facto acceptance of its unauthorized reproduction by "bootleggers?" * * * * * * * * * * Two halachik analogies present themselves immediately: 1) hasagas gevul, as in the case of copyrights on printed books. I think there's a discussion of this in the introduction to Tosefos Yom Tov's commentary on the Mishna. This validates the idea of intellectual property as a means of earning a parnassah. However, in the case of the (effective) granting of a copyright on the mishna there was a time limit. And this brings me to the second point: 2) eyushi meiish, as in the discussions in the (second perek of?) Baba Matsiah (Elu matsias shelo, velu chaiv lehakriz...) of the intangible connection between an owner & his property. Under a variety of circumstances a normal person could be expected to give up all hope of recovering his lost object & it would become hefker. The case there of someone who sees his property floating down the river and is running after it seems analogous to attempts made by software vendors to copy protect their software even though they think of it as "perishable." Don't the software vendors market their programs ol smakh that they will be copied? 3) Where does dina dmalkusa dina fit into this? Presumably, here in golos (& consequently NOT under hamalkus harashaais), we are bound to obey secular law so long as it does not conflict with halacka. However, dina dmalkusa dina may not apply in all countries either because A) they have no laws which address the issue of software piracy, or B) the case of eretz yisroel is being considered. For the sake of discussion, I'd like to avoid such arguments as "It's a violation of U.S. law. Dina dmalkusa dina. It's assur. Q.E.D." Eliyahu Johnson aka Willis Johnson aka ...tektronix!reed!wjohn
slerner@sesame.UUCP (Simcha-Yitzchak Lerner) (08/06/85)
> *** REPLACE THIS LINE WITH YOUR MESSAGE ***
to save space, I am not includeing the original...
While you don't want a responce of dina d'malchut dina, there are
specific laws protecting intellectual property, and these laws
specifically include software. It is a theft not only in the eyes
of the law, but you (not personal you) ARE taking away from someone's
parnosa (mine!!).
Aditionaly, the licence agreement is a contract that you accept when
you buy the package, and breaking the seal **in halacha** is an acceptable
kinyan, obligating you to keep the agreement. The dinim of vows would
thereby aply.
Also, halacha does recognize copywrite concepts, and software is
generaly deemed to fall under this type of restriction. True, there
is a time limit, but then, even a few years of protection is not the
same as none.
And finally, software vendors DO NOT ship with the expectation of being
robbed (thereby implying they have already given up hope...). They are
activly fighting it, and are adapting new technology to make it almost
impossible [hardware key/keyring proposal by ADAPSO - more info in
net.micros.pc if you're interested].
In summation, not only would it be a chilul hashem for a jew to steal
software, but this halachic situation would be dubious at best...
Peace
--
Opinions expressed are public domain, and do not belong to Lotus
Development Corp.
----------------------------------------------------------------
Simcha-Yitzchak Lerner
{genrad|ihnp4|ima}!wjh12!talcott!sesame!slerner
{cbosgd|harvard}!talcott!sesame!slerner
slerner%sesame@harvard.ARPA teitz@aecom.UUCP (Eliyahu Teitz) (08/15/85)
> > While you don't want a responce of dina d'malchut dina, there are > specific laws protecting intellectual property, and these laws > specifically include software. It is a theft not only in the eyes > of the law, but you (not personal you) ARE taking away from someone's > parnosa (mine!!). > I never knew it was robbery to limit someone else's parnasa ( income ). The Torah relates laws of 'hasagat g'vul', encroaching on someone's boundary. If I have a store in a city, another person is not permitted to open an identical store in the town because he will be taking away my livelihood. This, I would imagine, ( I don't have my sources wit me now ) does not restrict me from opening a store at all. If I were in New York I doubt there would be a prohibition against my opening another store in a different neighborhood. Also, if my prices ae different than my competitor's then I might be able to stay in business. The laws are more complex than this, and I will have to research the question ( as I promised when the original letter was sent me, I haven't forgotten yet ). In any case, the poblem of taking someone else's livelihood is not such a simple topic. > Aditionaly, the licence agreement is a contract that you accept when > you buy the package, and breaking the seal **in halacha** is an acceptable > kinyan, obligating you to keep the agreement. The dinim of vows would > thereby aply. > Again, do you have sources as to why a contract is considered a vow? THe laws concening the two ae totally different. If I break a contract I can be brought to court. If I break a vow I have committed a grave sin, but there is really nothing else that can be done. > Also, halacha does recognize copywrite concepts, and software is > generaly deemed to fall under this type of restriction. True, there > is a time limit, but then, even a few years of protection is not the > same as none. > Do you have proof that software is copyrightable under halacha? Also, does halacha have a statute of limitations as far as copyrights ae concerned. When discussing halacha one must quote sources as accurately as possible. I try always to quote. Unfortunately my memory is not perfect and I forget sources. However, I do not make blanket statements of halacha without at least mentioning that I remember seeing something comparable to what I am quoting. If I just want to give my opinion of what I think the halacha should be I say it is my opinion. One must be vey careful when quoting halacha not to misrepresent personal opinions as halacha. > And finally, software vendors DO NOT ship with the expectation of being > robbed (thereby implying they have already given up hope...). They are > activly fighting it, and are adapting new technology to make it almost > impossible [hardware key/keyring proposal by ADAPSO - more info in > net.micros.pc if you're interested]. > While software vendors are trying hard to prevent future robbery they might well be selling programs knowing full well that they will be pirated. They might have resigned themselves to this fact, which would constitute yi'ush. Howeve, in addition to yi'ush, one needs shinuy r'shut, changing of ownership in order to have no problem with g'neva ( see g'mara Bava Metsia, exact page escapes me now ). When I copy a program it is in my ownership. Therefore the copying itself is not a shinuy r'shut, and even though there was yi'ush there might be a problem of g'neva ( robbery ) with my copying of the soft- ware. This is by no means meant to be a thorough discourse on the subject, but it should start some discussion. > In summation, not only would it be a chilul hashem for a jew to steal > software, but this halachic situation would be dubious at best... > Why a chilul hashem, unless someone else found out about it. We are discussing the problems of robbery, and not all the problems inherent in commiting a sin. > Peace > Well said. Eliyahu Teitz.
david@aecom.UUCP (David Suna) (08/23/85)
In article <1856@aecom.UUCP> teitz@aecom.UUCP (Eliyahu Teitz) writes: > > While software vendors are trying hard to prevent future robbery they > might well be selling programs knowing full well that they will be pirated. > They might have resigned themselves to this fact, which would constitute yi'ush. > Howeve, in addition to yi'ush, one needs shinuy r'shut, changing of ownership > in order to have no problem with g'neva ( see g'mara Bava Metsia, exact page > escapes me now ). When I copy a program it is in my ownership. Therefore the > copying itself is not a shinuy r'shut, and even though there was yi'ush > there might be a problem of g'neva ( robbery ) with my copying of the soft- > ware. This is by no means meant to be a thorough discourse on the subject, > but it should start some discussion. > > Eliyahu Teitz. > Although it is true that in order for a kinyan to be made yi'ush is not sufficient, the gemarah in Baba Kama (sorry Eliyahu not Baba Metziah) in perek Merubah deals with another type of shinui that would place an object totally out of the r'shut of the original owner. This shinui is a shinui in the chafetz itself. For example, the gemarah discusses a case where someone steals a young sheep and the sheep subseqeuntly grows fat (or thin as the case may be), there is then an arguement as to whether this constitutes a shinui in the chafetz. Now although there is no shinui r'shut for the program there is a shinui in the chafetz of the program (i.e. it has been transferred to another disk). Also, I would be interested in hearing whether there actually is a shinui r'shut. If the program is considered the property of the author then although I have the program in my hands it could still be considered in the r'shut of the author. For a precedent to this we have the concept of pikadon in the hands of a shomer. Many rishonim hold that the pikadon is in the r'shut of the original owner although it is in the physical r'shut of the shomer. If so then when someone transfers a program to their own disk they have in essence created a shinui r'shut. I would like to point out that all of these discussions are really of little help to the actual copier since the gemarah only says that someone who supsequently buys the stolen object from the thief has no obligation to return it to its original owner. The thief himself is no less responsible for the act. This may only help those who copy a copy of a program. This seems to be an important issue especially with the price that programs can demand. I would be interested in a more authoritative view on the subject. (i.e. the psak of a rav and not just personal impressions of gemaras that we all haven't looked at in a while). David Suna
teitz@aecom.UUCP (Eliyahu Teitz) (09/04/85)
> In article <1856@aecom.UUCP> teitz@aecom.UUCP (Eliyahu Teitz) writes: > Although it is true that in order for a kinyan to be made yi'ush > is not sufficient, the gemarah in Baba Kama (sorry Eliyahu not Baba Metziah) Thanks for the correction. > in perek Merubah deals with another type of shinui that would place an object > totally out of the r'shut of the original owner. This shinui is a shinui > in the chafetz itself. For example, the gemarah discusses a case where > someone steals a young sheep and the sheep subseqeuntly grows fat (or thin as > the case may be), there is then an arguement as to whether this constitutes > a shinui in the chafetz. Now although there is no shinui r'shut for the program > there is a shinui in the chafetz of the program (i.e. it has been transferred The question now is whether it is considered a shinuy ( change ). Just because I change the electrical charge of a piece of magnetized plastic have I change the disk. There is no noticable physical change ( at least to the human eye ). Does this count as a change or not? > to another disk). Also, I would be interested in hearing whether there actually > is a shinui r'shut. If the program is considered the property of the author > then although I have the program in my hands it could still be considered > in the r'shut of the author. For a precedent to this we have the concept of > pikadon in the hands of a shomer. Many rishonim hold that the pikadon is in > the r'shut of the original owner although it is in the physical r'shut of the > shomer. If so then when someone transfers a program to their own disk they > have in essence created a shinui r'shut. I think the comparison is faulty. When I give someone an object to watch I will eventually be getting my object back. When I buy software, or anything for that matter, the seller is not going to get his object back, unless he wants to buy it back. When I buy a program I have no intention of returning it to the author. So it is not similar to a pikadon. Our situation is a regular sale and with the completion of the sale there is a shinuy r'shut Eliyahu Teitz.