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Ore and let davven.™

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Wednesday, July 26, 2006


(Mar Gavriel was attacked by some blogtrolls for proposing to copy a scholarly book that is expensive. Here is a half- and fast-baked overview of some aspects of the question.)

There are several issues here:

US law. I'm not an expert in this, but as far as know, it allows to make partial copies under these circumstances. I'm not sure about complete copies - there was a de-facto guideline for courts once that held it was legal to make copies for non-commercial purposes and not exceeding a certain number - often 7 is stated.

Newer legislation might have changed, though, among other reasons because with newer media like CDs (music) and CD-ROMs (software) the loss of quality is less. Also lobbies have been more pronounced.

Dine demalchuse. Much disputed, as you might know. Some say it only refers to laws that have to do with the king's treasury, read taxes, customs, official fees. Others say it refers to simply everything including laws that the majority of the people don't care about, like jaywalking which actually only plays a rôle in determining the guilty part in case of an accident. Frankly, those that hold the minimum are more convincing, and those that have a broader definition often argue with secondary (but maybe important) things like preventing anti-Semitism.

Din. Wow, you really want to know, huh? For this is a very difficult field. In short, you'll have difficulties to find many poskem who'd simply state yô, no problem, go ahead, copy and sell it. But there is no concept of intellectual property in Haloche. This is what haskomes in sforem were originally for: They weren't imprimatur stamps, blurbs or sale-increasing forewords by celebrity rabbis, but their main purpose was to say something like "The honourable rabbi Plôni has put a lot of work and time into his project, which came out nicely, and so I declare that anyone who'll reprint it during the next 20 years without his approval shall be under cherem." This alone shows that without such a device, copying wasn't considered forbidden.

Another possibility for a halachically valid copyright is a partial sale. The seller states at the time of sale what exactly is excluded from the sale, for example the right to reproduce it. (An interesting turn is that you could get the opposite problem of dine demalchuse: If you forbid to copy any part, this would violate rights you have according to US law.) Anyway, even for those who hold partial sales are possible for non-material issues, still the conditions of the seller stating at the time of the sale aren't usually fulfilled. It certainly isn't enough to have a sticker on the software CD saying if you break the seal you accept the conditions, because it's yours already. (Back to dine demalchuse - there are more and more court decisions saying these seals or the end-user licences you have to click OK when you install a programme aren't good, because it's known that nobody reads them anyway.) Maybe though, it might be considered self-understood that the seller makes this kind of partial sale - I'm not sure if this is halachically enough.

Next thing is the question if you have to pay the publisher something. If you wouldn't have bought it, you'll hardly find a dayyen who says you still have to pay - it's a case of "this one gains, and that one doesn't lose anything." If you would have bought it, rather than use the library copy, and disregarding all the points above, you'd still not have to pay the full price, because a photocopy (or a copied CD) doesn't have the same value as an original.

If it comes to the crunch, the publisher would have other disadvantages in addition. He is the one who wants money from you (hammôtze meichaveire olev horaye), and you have the right to invoke halachic opinions in your favour, even if the dayyen holds differently (kim li).

Morals. Fuzzy thing that. I could claim "we call that mitzves and haloche", but there is an element of codified morals. (By the way, personally I feel bootlegs are not fair towards the author, and to a lesser degree, the publisher.) Still, I wonder why in pre-modern times, neither Jews nor goyyim cared much about copyright, and if such an obviously time-bound feeling is relevant or not. Pressure from lobby groups is not a legitimate part of morals, unless it fits the moral anyway, in which case it doesn't add anything.

Lastly, publishing houses are producing books for money, as a rule. But authors might be happy if they get publicised, and authors of scholarly works typically even more so.

I hope it's clear that I don't simply give a hetter here. Go and see YLOR for more and a psak. When I'm grown up and open a publishing house, I'll see to it that I include a cherem haskome.

Update: more in the comments section.



Blogger Phillip Minden said...

Q. e. d.

The 'troll' wasn't about questioning the practice of copying, but rather about insulting MG. A bit also about implying a violation of US law and haloche without any supporting facts but all the more decidedly.

What is stupid about the transcription, or as you condescend to call it, transliteration? I mean, not impractical, wrong or the like, but stupid?

Anonymous people who call others names and claim things without even trying to give an argument meet the common definition of 'troll', I'd think. Look it up in, no wait - you think everything in Wikipedia is false, don't you?

Wednesday, July 26, 2006 4:18:00 PM  
Blogger Phillip Minden said...

Listen, why don't we take the opportunity to talk about the original question, not about transcriptions and trolls? Stay anonymous or use a pseudonym, and mingle among the others who might amend the things I wrote above off-hand.

Wednesday, July 26, 2006 4:43:00 PM  
Blogger Jen Taylor Friedman said...

From an authorly perspective: copying means that people buy less books (my mother wrote textbooks; sometimes schools would copy the books instead of buying them. She also wrote other books, whose royalties went up copy by copy), which means smaller print runs, which means less sales...it's a vicious cycle which has immediate side-effects. When your income is royalties, people making copies means you can't put shoes on the baby. You know I don't attack MG without good reason; I have very strong feelings about copyright laws because they directly affect my lifestyle.

Wednesday, July 26, 2006 8:00:00 PM  
Blogger Phillip Minden said...

I understand that. There are good reasons for copyright laws - in addition to those you mention, an enlightened state is interested in furthering the belles lettres, science and scholarship, and it isn't exactly an incentive for a full-time author to know that everybody is allowed to copy his works for free.

Especially with small-circulation books (like the one that inspired the current discussion), there is also the vicious circle that the mere production costs have to be covered. If this can't be attained because of expected illegal copies, the book will either not be printed, or the costs are covered through a higher retail price.

But the attacks claimed it was a clear matter that copying is against US law and against haloche, while in fact, both are far from clear about it, to say the least.

(In the Din section, I forgot to mention the opinion that it is allowed to copy something that is out of print, and that this includes all former editions, maybe even identical reprints in a different cover and the like.)

In my professional area of influence, I see to it that the employees don't copy books, and if, nay: when I go into authoring and publishing professionally, I'll look for all reasonable means to prevent copying. But, unless my halachic insight changes, I won't print "All copying of books is strictly forbidden according to Jewish law", as you see so often.

Thursday, July 27, 2006 6:14:00 AM  
Blogger Jen Taylor Friedman said...

If something is out of print, you are supposed to contact the publisher and ask permission to copy the work. They will generally allow you to, or make you a copy, on payment of a fee - which is how it should be.

Agreed that legally it's not clear - but I still think that morally it's pretty obvious, at least such a case as copying a whole book because you don't want to buy it.

Thursday, July 27, 2006 12:19:00 PM  
Blogger Phillip Minden said...

Blackherring, you use expressions like "you are supposed to", "which is how it should be", "morally pretty obvious".

As I said, I understand the undesired effects of wild copying, and growing up and living in close contact with the "general" society, I share the feeling that copyright rules are good, but on an academic level, I don't know if this is correct. It might not make a practical difference for me or for you, but it afflicts our perception of people who behave differently. Declaring somebody a thief is no small matter in my eyes.

So, it might help me if you explain why or by whom you are supposed to, who or what says this is how it should be, and what moral system is so clear that it is pretty obvious. ('System', because even outside of Judaism, morals is a system of behavioural rules, not a cluster of diffuse feelings.)

Friday, July 28, 2006 4:29:00 AM  

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