Techumin – 5765

Outline

A. Possible sources for copyright in Jewish law

1. The dilemma
2. Encroaching on another’s trade
3. Payment for benefit
4. Acting contrary to the owner’s intent
5. An enactment or the law of the land

B. Ownership of an abstract entity

1. Can there be ownership of an abstract entity?
2. What is the deficiency in ownership of an abstract entity?
3. An abstract entity not attached to a tangible object

C. Geneivat Da’at

1. Theft or falsehood?
2. Creating unearned gratitude
3. Taking information from another

D. Prohibitions that follow from the prohibition of geneivat da’at

1. Stealing novel Torah insights
2. Reading another person’s letter

E. Copyright – the creator’s ownership of his information

F. Unique information is an asset

G. Information is an asset because it is not attached to a tangible object

H. The duty to compensate

I. The implications of grounding copyright in geneivat da’at

A. Possible sources for copyright in Jewish law

The dilemma

The question of intellectual property, and copyright in particular, in Jewish law, arose in recent generations, mainly since the invention of printing.[1] From both a legal and a halakhic standpoint, the discussion should be divided between two distinct questions: the creator’s right to restrict the use of his work and to collect payment for its use (an economic right), and his right to demand that his name be mentioned on the work and that its content not be altered when it is used or presented (a moral right).[2] This article deals mainly with the economic right.

This topic must be discussed on three different planes: whether there is ownership of copyright; whether infringing it constitutes a prohibition (theft, or some other prohibition); and whether there is a duty to compensate. There is a certain interdependence among these questions. For example, if there is no ownership, there can be no prohibition of theft, and so forth.

The question of copyright has been discussed extensively in the halakhic literature of recent generations, yet it seems that a substantial gap still remains regarding the grounding of actual rulings in sources, especially as Navon notes. On the one hand, there is a clear sense that infringing copyright ought to constitute a halakhic prohibition, and there is also a tendency to seek a halakhic basis for obligating the infringer to compensate the creator in certain circumstances.[3] Most halakhic decisors, at least in our generation, agree with this general approach. On the other hand, beyond general statements that the act is prohibited, it is difficult to find a clear halakhic anchor for that prohibition. As we shall see below, the prohibitions of theft and unauthorized benefit do not, at least on their face, lend themselves easily to this topic; yet many decisors tend to ignore this and rule, without substantial halakhic justification, that the matter is prohibited. For that very reason, some decisors in fact maintain that they cannot prohibit it. Examples of both types will be presented below.

The principal aim of this article is to propose a firmer halakhic basis for the very determination that there is ownership in copyright, and accordingly for the determination that its infringement involves a prohibition, whether of theft or stealing. We shall propose a source for these determinations in the prohibition of geneivat da’at, which, according to most positions, is a Torah-level prohibition. In light of the explanation we will propose, we will try to clarify a number of points that, in my view, remained obscure or insufficiently understood in earlier halakhic discussions. As we shall see below, the proposed approach also carries a good many practical legal consequences.

Encroaching on another’s trade

Halakhic decisors have attempted to ground copyright in a variety of halakhic principles. Some have tried to base the prohibition on the rule against encroaching on another person’s trade, or on unlawful trespass. But Rabbi Batzri already noted[4] that this has no special connection to the question of copyright. Those issues concern a person’s right to engage in a certain trade and earn his livelihood from it, as against the right to compete. Questions of copyright and intellectual property concern a person’s right to unique knowledge or to his own invention.

One implication that sharpens this distinction is the territorial question. With respect to trespass and encroachment on another’s trade, there are definitions tied to a city or a country, beyond which there is no problem in engaging in the same profession. By contrast, stealing knowledge is not territory-dependent. If a person has rights over knowledge or a unique invention, those rights apply everywhere, without limitations of distance.[5]

More generally, one may say that in questions of unlawful competition there is no unique reference to the person who originated the knowledge; he is treated like anyone else active in that field.

 Payment for benefit

Some have tried to drive the pegs of both the prohibition against infringing such rights and the obligation to pay for intellectual rights into the topic of benefit. The accepted halakhic rule is that if one party benefits and the other incurs a loss, the beneficiary is liable, as in Bava Kamma 20-21 and Shulḥan Arukh, Ḥoshen Mishpat 363:6. Even here, however, there is no complete answer to the question of copyright, because in straightforward halakhic terms there is a requirement that the benefit be derived from an object owned by the one from whom the benefit is taken, or from his monetary investment.[6] And there is a more essential problem: in the laws of payment for benefit, the discussion does not concern the creator’s rights over his creation, but rather the benefit produced from an object, or a monetary investment,[7] of the party from whom the benefit is derived. By contrast, the topic of intellectual property seeks a basis for a person’s very right over an invention or unique knowledge in his possession.[8]

Acting contrary to the owner’s intent

Rabbi Zalman Nechemia Goldberg proposes, as a source for the prohibition against infringing copyright, the rule of acting contrary to the owner’s intent. This is a novel extension, and it too has generated several disputes,[9] but for our purposes it should be noted that here as well there is no discussion of copyright as such, but of use of a cassette tape, which is the subject of Rabbi Goldberg’s article. Yet copyright can be infringed even without any use of an object purchased from the creator. For example, one may hear of an invention from its creator, or discover it accidentally or intentionally, and make use of it. In such a case, it is difficult to invoke this rule as the basis of the prohibition. Therefore, at least with respect to the essential question of copyright itself, it seems difficult to find a satisfactory answer in the rule of acting contrary to the owner’s intent.

An enactment or the law of the land

Seemingly, the required conclusion, see for example Navon, is that the prohibition against infringing copyright must be grounded in a rabbinic enactment, or else it will remain merely a moral prohibition. It follows that the duty to pay monetary compensation for such infringement can also be grounded only in an enactment.[10] On the other hand, as Rakover and Emek Ha-Mishpat have shown, a great many decisors took it as obvious that there is a prohibition here, and for most of them there is also a duty to compensate, apparently as a matter of basic law. Most do not even trouble to explain this. They write it, or state it orally, as Emek Ha-Mishpat records from many contemporary decisors, as an obvious matter not open to dispute.

We will cite only two examples to illustrate the matter, one a direct statement, and the other an incidental written remark. The author of Sho’el U-Meshiv, first edition, part I, sec. 44, wrote:

It is certainly the case that when an author prints a new book and merits that his words be accepted throughout the world, it is obvious that he has a perpetual right in it… Shall our complete Torah be no worse than their idle chatter?! Reason itself rejects such a notion, and daily practice shows that one who prints a work has a right in it, as do those who come through him. (It is certainly the case that when an author prints a new book and merits that his words be accepted throughout the world, it is obvious that he has a perpetual right in it… Shall our complete Torah be no worse than their idle chatter?! Reason itself rejects such a notion, and daily practice shows that one who prints a work has a right in it, as do those who come through him.)

And Rabbi Shimon Shkop wrote at the beginning of his novellae to Bava Kamma:

Just as, in matters touching a person’s rights, it is agreed by Torah law and by the laws of the nations that whoever brings forth something new into the world is its owner with respect to every right… (Just as, in matters touching a person’s rights, it is agreed by Torah law and by the laws of the nations that whoever brings forth something new into the world is its owner with respect to every right…)

And among oral statements by contemporary decisors, Emek Ha-Mishpat, p. 2, note 6, records several references. In the name of Rabbi Yosef Shalom Elyashiv he writes that he does not understand how one could dispute that a creator has ownership and rights over his creation. Rabbi Wosner likewise wrote in his approbation there:

As for the substance of the law, the Torah’s view certainly inclines to the position that there is a prohibition of theft and so forth with respect to that which one’s fellow has invented entirely anew, whether a book of Jewish law and the like, or other matters as well; and so too is the civil law everywhere in the world. (As for the substance of the law, the Torah’s view certainly inclines to the position that there is a prohibition of theft and so forth with respect to that which one’s fellow has invented entirely anew, whether a book of Jewish law and the like, or other matters as well; and so too is the civil law everywhere in the world.)[11]

If so, it seems that we still must find a firmer halakhic source, one rooted at the Torah level, since our ability today to institute an enactment, especially where there is no full agreement regarding it and no authorized institution accepted by the entire public to do so, is very problematic. Beyond that, it does not appear from the words of most decisors that they intended to institute an enactment. They seem to be expressing an opinion by force of existing Jewish law.

B. Ownership of an abstract entity

Can there be ownership of an abstract entity?

One might ask what could almost be called a heretical question: why must we find a source at all? If decisors indeed assume as obvious that copyright infringement is theft, then apparently it is included in the ordinary law of theft; this assumption runs throughout Emek Ha-Mishpat, and see further below. Yet even though this does appear from the words of several decisors, it is difficult to ignore the basic problem underlying the confusion in this area: copyright consists of rights over an abstract entity, namely the work itself, which is a mere idea.

Maimonides, in Laws of Sale, chapters 21-22, especially 22:13-14, addresses the impossibility of applying ownership to abstract entities, and writes:

A person can transfer, whether by sale or by gift, only something that has substance. But a thing that has no substance cannot be acquired. How so? A person cannot transfer the smell of this apple, or the taste of this honey, or the appearance of this crystal, and so too anything similar. (A person can transfer, whether by sale or by gift, only something that has substance. But a thing that has no substance cannot be acquired. How so? A person cannot transfer the smell of this apple, or the taste of this honey, or the appearance of this crystal, and so too anything similar.)

This principle is firmly established in Jewish law. It is presumably for this reason that the author of Sho’el U-Meshiv and Rabbi Wosner, cited above, needed support from the law of the land throughout the world.[12] But that is not sufficient, for in the end, in order to establish a halakhic prohibition against infringing copyright, we also need a halakhic source. Thus, the problem of the creator’s ownership or rights over his creation requires clarification, and above all a search for a Torah source that can ground it.

The author of Emek Ha-Mishpat, especially in sec. 15, proposes a general direction for halakhically grounding copyright. In truth, it would be more accurate to say that he claims that the problem, or at least that part of it concerning ownership of ideas themselves, as distinct from the question whether theft applies to them, does not exist in the first place. His basic argument is that there is no barrier to a person’s having ownership of abstract entities. According to him, the problem of a thing that lacks substance concerns only the possibility of transferring such ownership, or of effecting it, and Maimonides’ intent in the passage above was not to say that there cannot be ownership of the appearance of the crystal. His intent, according to Emek Ha-Mishpat, is only to say that one cannot convey such an entity to someone else.

The author of Emek Ha-Mishpat goes further and argues, in his introduction to sec. 15, that although it is now almost universally accepted in the halakhic world that there is no ownership over things that lack substance, in his view there is no source for this at all in the medieval or later authorities.[13] We will now discuss this claim and, through it, show the possibility of saying that there is indeed a problem in ownership itself.

What is the deficiency in ownership of an abstract entity?

It seems that the reason why, even if there is ownership of an abstract entity, it nevertheless cannot be transferred further, may be one of two possibilities that divide into four. There are two principal ways in which Jewish law regards acts of acquisition: either as a purely legal-formal act, or as something that expresses, or verifies, the formation of definitive intent. In light of this division, one may understand that the impossibility of transferring an abstract entity stems either from the absence of definitive intent with respect to such entities, or from the fact that no act of acquisition is defined for them.

Each of these two directions can itself be divided into two sub-possibilities: is the problem with the abstract entity the fact that it is subordinate to the concrete entity that bears it, or is there an essential problem with an abstract entity even when it stands on its own and is not subordinate to some other tangible entity? The practical difference would concern abstract entities that stand independently and do not appear on concrete entities that carry them. Copyright seems, if anything, to be such a type of entity.

If so, there are four principal possibilities here:

1. There is no definitive intent on the part of the transferor or the transferee when they relate to an abstract entity.
2. There is no definitive intent regarding an abstract entity attached to, or borne by, a concrete entity. One’s attention is directed to the tangible object, not to the abstract entity borne on it.
3. Jewish law has no act of acquisition that transfers an abstract entity when it is borne by a tangible entity. At most, one can transfer the concrete entity, and ownership of the abstract entity then follows. For example, ownership of the appearance of a diamond follows ownership of the diamond itself.
4. Jewish law has no acts of acquisition for abstract entities at all.

In light of the above distinction, one may return to Maimonides in Laws of Sale and understand him, as he is usually understood, to mean that there is no ownership at all of abstract entities, while still claiming that this is only so when the abstract entities are borne by tangible objects. In such a case, ownership of the tangible object determines ownership of the abstract property appended to it. But on that reading, with respect to wholly abstract entities, such as ideas or works in the case of copyright, perhaps ownership, or some set of rights, may exist.

In light of what has been said above, perhaps one could add another element that would explain the possibility of ownership of information, at least when it is a genuinely new creation. We saw that the difficulty in transfer or ownership of something lacking substance can be explained in different ways. Two main directions emerged: lack of definitive intent and absence of an act of acquisition. If the problem is lack of definitive intent, then one can say that with respect to an idea or a creation there is complete definitive intent, certainly today, when ideas are worth large sums of money and have become a marketable commodity. In that case, the entire problem of a thing lacking substance simply does not arise with regard to a creation. By contrast, the absence of an act of acquisition is relevant to information as well, though we are not addressing solutions based on situmta here. Still, here there is room to distinguish between a problem in transfer and theft and a problem in ownership itself. If there is indeed a problem in ownership itself, as we noted above against the sweeping claim of Emek Ha-Mishpat, then the element of definitive intent will not necessarily help.

An abstract entity not attached to a tangible object

The author of Emek Ha-Mishpat brings proof for his position from several commentators, medieval and later, in the topic of reservation in Bava Batra 63a and 147b-148a, in the Rosh and especially from a responsum of the Rashba. According to him, one can reserve abstract entities,[14] and therefore it is clear that Jewish law recognizes ownership over them. Accordingly, he maintains that Maimonides means only that the transfer of such entities is impossible, whereas ownership absolutely is possible. On this reading, it is clear that his understanding is not that ownership of the abstract entity simply follows the object that bears it, for if that were so one could not reserve it either. He apparently assumes that one cannot perform an act of acquisition upon an abstract entity, or that there is no definitive intent to acquire such an entity. Accordingly, where ownership does not require an act of acquisition, it exists even with respect to abstract entities.[15]

But according to the two possibilities we raised, one may distinguish between Maimonides’ case and the case of copyright, and say that even if one cannot transfer a thing lacking substance, copyright can indeed be transferred, because it is not borne by any concrete object. If so, the problem of transfer with respect to copyright may not exist at all.

Yet the same can be said about ownership itself. We noted above that in order to understand that there is, in principle, a possibility of ownership over copyright, there is no need to interpret Maimonides, following Emek Ha-Mishpat, as referring only to transfer and not to ownership. One can say that there is no ownership of abstract entities that are borne by tangible objects. But when such entities appear separately, there is indeed a possibility of ownership over them, as explained above.

Emek Ha-Mishpat himself argues that although there is ownership of abstract entities, the prohibition of robbery does not apply in such a case, see there from sec. 24 onward. He therefore resorts to the prohibition against benefiting from another’s property, or from another’s monetary investment. In this way we find ourselves straining against the explicit words of several decisors who wrote clearly that the matter is prohibited as outright theft.[16] The author of Emek Ha-Mishpat senses this and presses their language into a reading consistent with his own view.[17]

His principal proof for the rule that there is no robbery with respect to an abstract entity is from Maimonides, Laws of Shofar 1:3, that one who hears the blast of a stolen shofar has fulfilled his obligation, because there is no robbery in sound. Here too one can distinguish between an abstract entity attached to a concrete object, namely the shofar, and an abstract entity such as copyright, which stands on its own. Perhaps with an entity of that sort, just as there is room to speak of ownership, there is also room to understand that one who infringes it violates the prohibition of theft.[18] Beyond that, the sound of the shofar is not, apparently, an abstract entity at all; rather, it is not an entity in any sense. It is a form of use of the shofar itself. Therefore ownership does not apply to it at all, and consequently neither does robbery. In such a case it is clear that ownership is determined only with respect to the shofar itself, and sounding it is at most a use of a stolen shofar.[19]

In any event, all this still requires a source. Even if these distinctions are possible, from where do we know that they are actually correct? We must adduce a halakhic source that addresses ownership of abstract entities not borne by tangible objects, such as ownership of ideas or information, and thereby show that these distinctions are indeed valid. The claims of Emek Ha-Mishpat themselves are not grounded in a Torah source, apart from the Rashba’s reasoning in the responsum, and at most they raise the possibility of distinguishing between transfer and ownership. But he still must show a Torah source for that very point. As stated, the simple assumption is that the problem lies in ownership itself, and that is how many excellent authorities understood it. The same is true regarding the law of theft: such a distinction seems possible here as well, but it still requires proof. On the face of it, the simple meaning of Maimonides and other decisors indicates that theft is inapplicable to any abstract entity, and perhaps ownership as well, and from where do we know that the Torah distinguishes in such a case?

More than that: there seems to be a fundamental difficulty in Emek Ha-Mishpat’s very assumption that works or ideas are abstract entities. The examples in Jewish law of abstract entities are air above a house or courtyard, the appearance of an object, and the like. All of these are indeed existing things, only abstract. They are not rigid bodies, perhaps they have no mass, and some perhaps do not occupy space, such as the appearance of a crystal. By contrast, a work is an idea or information, and these are not abstract entities but things that do not exist in the world at all. So long as the work is not embodied on a disk, in a book, in a picture, and so forth, it does not exist in the world in any sense, even in the most abstract sense. This seems to be the reason many decisors do not discuss the work itself, but rather the object produced from it, the object that bears it. From there they move to the laws of acting contrary to the owner’s intent, payment for benefit, and so forth, as explained above.

Above we saw that the fact that a work is wholly abstract, that is, not borne by a concrete object, may make it easier to locate ownership and to determine that theft applies to works, since the work is not subordinate to some other concrete object. Here we see the opposite side, which precisely makes it more difficult to treat infringement of copyright as theft, and even to treat the creator as having rights in his creation. This consideration sharpens the need to find a source that will decide whether a creation is indeed an entity susceptible to ownership and to theft, or whether it is similar to, or perhaps even more problematic than, the abstract entities discussed in the earlier halakhic sources.[20]

In the next chapter we will propose a discussion of the prohibition of geneivat da’at, in which, at least according to some of the medieval authorities and decisors, one may find a source for the possibility of ownership of information, and even a prohibition of theft, or stealing, with respect to information. The halakhic possibility thereby opens of grounding copyright and intellectual property upon sharper halakhic foundations, as actual Torah prohibitions under the laws of theft.

C. Geneivat Da’at

Theft or falsehood?

The prohibition of geneivat da’at is discussed extensively in the topic of Ḥullin 94.[21] It is explained there that it is forbidden to steal the mind of any person, even a gentile, and so all the decisors ruled. In contemporary usage, the term geneivat da’at denotes deception, when one person steals another’s understanding and misleads him. But in the halakhic context it is difficult to say that every falsehood is geneivat da’at, for if that were so, there would have been no need to establish a separate term for it.

Still, from the discussion in that passage in Ḥullin, and as ruled by Maimonides and the Shulḥan Arukh, Ḥoshen Mishpat sec. 228, there seemingly emerges a conception that geneivat da’at is indeed bound up with the concept of falsehood. The prohibition appears in two main contexts:

1. The context of sale – when the seller does not disclose to the buyer a defect in the item being sold.
2. The context of misleading a person about one’s relationship to him. For example, when someone repeatedly urges another to dine with him while knowing full well that the other cannot possibly come. The one who presses the invitation creates in the other a feeling that he is very important and dear to him, whereas in fact the invitation rests on the knowledge that the other will not come.

Accordingly, in Maimonides too, the prohibition of geneivat da’at appears in two different places: in Laws of Character Traits and in Laws of Sale.

From the common denominator of these two contexts, it would seem that the basic definition of geneivat da’at is indeed a prohibition belonging to the family of falsehood, deception, or fraud. Yet such an understanding is not necessary, and probably not even plausible. The Ritva, in the passage in Ḥullin 94, and see there editor’s note 257 citing parallel medieval authorities, rules that this is a Torah prohibition and brings its source, in the name of Tosafot, from the verse Do not steal. That verse teaches the prohibition of stealing money, in contrast to the verse Do not kidnap in the Ten Commandments, which deals with kidnapping. If so, geneivat da’at is learned from the very same source from which the prohibition of stealing money is learned. This indicates a conception that geneivat da’at belongs to the family of prohibitions of theft, not necessarily to the family of falsehood. That is also what the very term geneivat da’at appears to imply. Several later authorities already noted that this also seems to emerge from the Mekhilta, Mishpatim ch. 13, and the Tosefta, Bava Kamma, ch. 7, halakhah 3: There are seven thieves, and the first among them is the one who steals people’s minds. (There are seven thieves, and the first among them is the one who steals people’s minds.)

Some, however, understood the prohibition to be rabbinic, at least in some of its contexts.[22] Below we will clarify the topic on the assumption of the Ritva and his camp, that this is a Torah prohibition learned from Do not steal. In any event, it would appear from here, contrary to what we suggested above, that the foundation of the prohibition of geneivat da’at is not falsehood but precisely theft. On that basis, however, the classification of the second context, namely that of the person who urges another to come dine while knowing he will not come, which belongs to Laws of Character Traits, requires explanation.

Thus, even from this schematic description, at least two principal questions emerge:

1. What is common to the two contexts in which the prohibition of geneivat da’at appears? Is there a single shared foundation of prohibition in both?
2. What is the relationship between the prohibition of geneivat da’at and the prohibition of theft, or more generally the concept of stealing? At first glance, what we have here is fraud or deception, which belong to the family of falsehood, not theft.

It may be possible to distinguish, for this purpose, between the two contexts of geneivat da’at, since in the context of sales law one may perhaps see a greater connection to the theft of money. In any event, in the context of Laws of Character Traits, the difficulty is certainly acute.

In light of the above, it seems that the prohibition of geneivat da’at stands between two foundations, or two poles: falsehood and theft. In this language, the questions we raised above are: is there a common foundation to these two contexts, and what is it? And what is its relation to the foundation of theft?

One might seemingly explain everything in terms of the pole of falsehood. What is distinctive about theft is that it is done through deception. Theft, unlike robbery, is a taking done secretly and under concealment. That is how the Sages explain the rule that a thief pays double, and fourfold or fivefold, whereas a robber pays only the principal: the thief fears human beings more than he fears the Holy One, blessed be He, unlike the robber. On that basis, one might explain that theft itself is a prohibition belonging to the family of falsehood and deception, and that the foundation of the two contexts lies precisely in their falsehood dimension. But this seems insufficient, because theft also contains an element of wrongdoing toward another person, and especially toward another’s property. It is indeed true that one unique feature of theft, as compared to robbery, is the element of deception, but that is not the only element in theft. Beyond that, on this suggestion it would have been more fitting to derive geneivat da’at from the verse Keep far from falsehood, not from the verse Do not steal.

It therefore seems that we must seek the answer specifically closer to the pole of theft, not to the pole of falsehood. Yet, as we have already noted, it is not at all clear what it is that is stolen when a person presses his fellow to come and eat with him while knowing he will not come.

Creating unearned gratitude

In order to explain this, let us first briefly discuss the essence of the prohibition of geneivat da’at. The accepted definition of its foundation appears in Rashi on the passage in Ḥullin, who repeats in several places that geneivat da’at is the creation of unearned gratitude. Several decisors have raised difficulties against this from various places where there is no situation of creating unearned gratitude, see the Baḥ and Sema on Ḥoshen Mishpat sec. 228, the Encyclopaedia Talmudit, and elsewhere. One might have inferred from this that geneivat da’at is indeed a kind of theft, but what is stolen is gratitude, which is given to the deceiver without consideration. Yet this explanation may be relevant to the prohibition in Laws of Character Traits, but not to the prohibition in Laws of Sale, where it is harder to see the connection to gratitude.[23]

It therefore seems more likely that Rashi’s definition is only one possible form of the prohibition, namely that it exists also where unearned gratitude is created, but that the foundation of the prohibition is something else, and does not always appear when gratitude is created, see also the examples below. As stated, that foundation must also be common to the prohibition in sales law.

Further evidence may be brought that the definition of the prohibition is not the creation of unearned gratitude:

1. In Shevuot 39a it is stated that one who has no money owing to him from his fellow, yet sues him and puts him under oath, violates geneivat da’at. What gratitude is there here? See Encyclopaedia Talmudit, note 69a.
2. The Rema, Yoreh De’ah 254:2, writes that if a ruler sends charity to Jews, it should not be distributed to poor gentiles, even secretly, but rather one should do what the ruler instructed. And although it is forbidden to take charity from a gentile, as explained there in the Shulḥan Arukh, the Shakh and Taz write there that this involves geneivat da’at toward the ruler. But what has gratitude to do with this? The ruler is the giver of the money, not its recipient. It is difficult to say that the ruler acquires unearned gratitude toward the Jews.

Taking information from another

It therefore seems proper to explain that the foundation of the rule of geneivat da’at is the taking of information from another. When a person does not convey to another information that relates to him, in situations where he is obligated to convey it, he violates a prohibition of theft; that is, he is considered a thief of the information.

This principle can explain both contexts in which the prohibition appears. When a person does not inform his fellow of defects in goods he is selling him, he conceals from him information that belongs to him.[24] Even if the price he took was the fair price for such merchandise, there is still here a theft of information from the buyer. So too, when a person urges his fellow to come eat with him, while knowing that the other will not come, there is a concealment of information, or a conveyance of false information, to the other, because the other thinks that he is his friend and loves him, whereas in fact he is not.

Of course, if he does not urge him at all, and the other merely makes a mistake and thinks that he loves him, he has no obligation to inform him that he does not love him quite so much. In order to violate the prohibition of geneivat da’at there must be an act of taking of the information. Only one who causes the false information is deemed a wrongdoer.[25] So too it is explained in the passage in Ḥullin there: if the deceived person errs not because of the deceiver, then the deceiver does not violate the prohibition of geneivat da’at.

Take, for example, the dispute among the medieval authorities regarding geneivat da’at in the case of a gift, see the Rosh, Rashba, and Ritva on that passage. The Rosh holds that in the case of a gift there is no prohibition in concealing defects, and one does not violate geneivat da’at. The reason is that in such a case the information does not belong to the recipient of the gift, and therefore there was no act of taking; alternatively, what was taken from him was not really his. In such a situation, unearned gratitude is certainly created. Therefore, if indeed the taking of unearned gratitude were the essence of the prohibition of geneivat da’at, one should seemingly also prohibit this in the case of a gift. There are indeed medieval authorities who prohibited it, and it may be that according to them the creation of unearned gratitude is indeed the essence of the prohibition, not merely an example. Moreover, even if the foundation of geneivat da’at belonged to the family of falsehood prohibitions, what difference would there be between a seller and a giver of a gift? Seemingly, whenever the other person is mistaken one should alert him to that fact.

Let us continue to examine this through a three-way dispute among the medieval authorities on the passage in Ḥullin regarding the rule that one may not sell a slaughtered non-kosher animal to a gentile in a place where it may be assumed to be a properly slaughtered kosher animal. From Rashi, on 94b, s.v. inhū, it appears that the prohibition applies only when one explicitly tells him that it is kosher-slaughtered. Tosafot there, s.v. inhū, noted an inconsistency in Rashi, and held that one violates the prohibition even without saying so. However, Tosafot imply that everything depends on whether the gentile will come to the conclusion that he is receiving kosher meat, and whether that mistaken conclusion arose because of the seller; that is, the distinction between speaking and not speaking is factual. The Rashba there, however, tends toward the view that one violates the prohibition in every case, and no distinction should be made at all.

According to Tosafot, everything depends on whether the gentile is in fact misled because of the seller. Seemingly, they view this as akin to a case in which the other person’s property is effectively in one’s hands, since he has in his possession ‘the gentile’s information,’ even if he did not actively take it. But according to Rashi, an explicit statement is required: there must be an act of taking the information in order for one to count as having stolen the other’s mind, as explained. According to the Rashba, one sees more clearly that this is treated as though the other’s property were in one’s possession, and it does not depend at all on whether the gentile was misled because of him or not; what determines the matter is that the gentile is being fed false information. Generally speaking, in all these cases the gentile feels gratitude for nothing. Seemingly, if the definition were unearned gratitude, what difference would it make whether he spoke or did not speak? As noted, one could reject this and say that even for stealing gratitude there must be an act of taking.

As for the relation between geneivat da’at and ordinary theft, this must be discussed in light of the prohibition as it applies to a gentile. As is explained in the passage in Ḥullin, and as all decisors ruled, the prohibition of geneivat da’at applies even toward a gentile. By contrast, the prohibition of stealing or robbing money from a gentile is the subject of dispute among the medieval authorities. The Ritva raises this very difficulty in the passage in Ḥullin against Tosafot, who derive the source for geneivat da’at from the verse Do not steal: how can geneivat da’at with respect to a gentile be forbidden, while ordinary theft, which derives from the same verse, is permitted with respect to a gentile?[26]

The Ritva resolves the difference between the two kinds of theft through linguistic nuances in the verse, but we still must clarify the matter on the conceptual level. Why is it that with ordinary theft from a gentile there is at least a possibility that it is permitted at the Torah level, whereas geneivat da’at from a gentile is prohibited according to all? Seemingly, this hints that geneivat da’at is not part of the general law of theft but is a separate rule of its own, perhaps derived through an inclusive reading of the same verse. But this seems forced, because on that understanding it is not clear why the Sages would have derived the prohibition of geneivat da’at specifically from this verse.

Perhaps one may say, following Rabbi Shimon Shkop in Sha’arei Yosher, gate 5, that theft from a gentile entails a legal-juristic prohibition according to all, even according to the view that there is no halakhic prohibition of robbery from a gentile. Proof for this comes from the Yere’im, cited in Magen Avraham 637:3, who writes that where the requirement is ‘yours,’ one cannot fulfill the obligation with an etrog stolen from a gentile, even according to the view that stealing from a gentile is permitted, because in the end the etrog is not his. In other words, using a gentile’s property without permission is a legal wrong of theft, but the Torah did not see fit to add a separate religious prohibition to it.[27] If so, one may say that geneivat da’at from a gentile involves an additional halakhic prohibition beyond the legal wrong. Perhaps the reason is the concern that the thief’s character traits will be morally degraded, though this is no more than an attempt at the rationale of the verse.

According to all that has been said in this chapter, it seems that the foundation of the rule of geneivat da’at can be understood literally: it is a stealing of understanding, of another’s understanding or information. It is not mere deception, and not merely a rule of sales law. It is a kind of theft, but what is stolen is a person’s information or his understanding.[28]

This resolves well the two questions we raised above. Geneivat da’at belongs to the family of theft prohibitions, not necessarily to the family of falsehood prohibitions.[29] And further, as we have seen, the two halakhic contexts in which the prohibition of geneivat da’at appears share a common foundation that lies closer to the pole of theft than to that of falsehood: in both, information is stolen.

D. Prohibitions that follow from the prohibition of geneivat da’at

Stealing novel Torah insights

We will conclude the discussion of geneivat da’at with two apparently puzzling examples that sharpen and prove our point. The author of Maḥaneh Ḥayyim holds that one who states another person’s Torah teachings in his own name is a full-fledged robber. Maharam Schick argues that this is not robbery, because novel Torah insights have no substance; nonetheless, in his view one still violates the prohibition of geneivat da’at.[30] At first glance this is astonishing. What has geneivat da’at to do with this? If one does it openly, will he still be called a thief? And especially if the definition of geneivat da’at is the creation of unearned gratitude, what relevance does gratitude have here? Moreover, it is clearly implied that the prohibition is directed toward the owner of the insights, not toward the listeners; yet the owner of the insights is not misled by him at all. Thus, even if we understand geneivat da’at in its simple sense, namely as a prohibition against deceiving, here he is not deceiving that person at all. Maharam Schick’s ruling can be understood only in light of what we explained above: the foundation of the prohibition in infringing copyright is the stealing of information. On that basis, it is clear that saying another person’s Torah words in one’s own name is literally a theft of that other person’s understanding. This is a prohibition toward the owner of the insights, grounded in the theft of the insights as information that belongs to him.

Reading another person’s letter

A similar consideration to that of Maharam Schick, and perhaps even more explicit, appears in the responsum of Ḥikekei Lev by Rabbi Ḥayyim Palaggi, Yoreh De’ah sec. 49, who discusses the prohibition against reading another person’s letter. He maintains that this prohibition exists at the Torah level even prior to the ban of Rabbenu Gershom, and that the ban was intended only to reinforce the prohibition. In discussing the source of the prohibition, he raises the possibility that it is an instance of geneivat da’at. Here too any reader will wonder: what has geneivat da’at to do with this, certainly if the definition is the creation of unearned gratitude? Perhaps if the prohibition were merely one of deception there would be some room for his view, though even then only with difficulty. But we already rejected that possibility in understanding geneivat da’at. Rather, here too one must arrive at our understanding of geneivat da’at: it is the theft of information. Reading another person’s letter is the theft of personal information that belongs to him. Therefore the connection to the rule of geneivat da’at is entirely literal.[31]

Rabbi Ḥayyim Palaggi’s words yield an even broader principle: the prohibition against violating a person’s privacy also rests on the prohibition of geneivat da’at, because a person’s private details are information that belongs only to him. This would include even reading the letter of a gentile, since if the foundation of the prohibition is geneivat da’at, then geneivat da’at is prohibited even toward a gentile, as mentioned above.

There is still room for further consideration regarding Maharam Schick’s own view, for he himself disputes the author of Maḥaneh Ḥayyim and holds that robbery does not apply to rights in novel Torah insights, because they are a thing lacking substance. If so, it is not clear how theft can apply here. Perhaps in truth this is only a category within the laws of robbery, but even according to him there is certainly ownership of things lacking substance, such as information. Robbery may not apply to the matter under discussion, but there is still room to define the stealing of such things.[32]

In the following chapters we shall see several references, not necessarily halakhic in character, that point to the foundation of stealing information as a kind of theft. There, too, the precise definition of the theft involved will become clearer.

E. Copyright – the creator’s ownership of his information

In light of everything said here, it seems that there is room to ground the prohibition against infringing a creator’s rights in his work in the rule of geneivat da’at. The idea embodied in the work is information that belongs personally to the creator, as all the decisors cited above wrote. It is certainly no worse than personal information contained in a letter. In addition, we have seen that one who takes information from its owner is considered a thief of information and violates the prohibition of geneivat da’at. According to our approach, the rulings of all the decisors mentioned above fall neatly into place: one who infringes copyright is considered an actual violator of theft under Torah law, though the relationship between stealing and robbery requires separate discussion and cannot be addressed here.

Both with the use of information contained in a letter and with infringement of copyright, the issue is not specifically use of the information for the sake of monetary profit. The prohibition exists in every case, by virtue of the very fact that information belonging to someone has been stolen. The issue is not the value of the information but the information itself, as though it were an actual object. Of course, the duty to compensate still requires discussion, and see below.

Infringing copyright is likewise regarded as theft of information. At the beginning of his book, Rakover cites several sources for such a view, at least on the linguistic plane.[33] For example, in the introduction to Sefer Ha-HaShlamah, the author informs his readers that he is following in the path of Rabbi Ha-Maor of blessed memory, but not as one who ‘steals his words.’ Likewise, in the warning printed in the book Teshuvah Me-Ahavah:

Whoever turns his eyes toward sinful wrongdoing and says, ‘What is yours is mine’ is wicked. And about him too Jeremiah the prophet, peace be upon him, spoke in the name of God: ‘Concerning the prophets, says the Lord, who steal My words, each man from his fellow.’

These may perhaps be understood as merely rhetorical expressions and not as substantive determinations, but semantics too points, in some measure, to essence.

In various Talmudic discussions it appears that there is indeed a treatment of one who steals ideas or unique information as a kind of thief. The Maḥaneh Ḥayyim cited above brought proof from Sanhedrin 59a, that a gentile who studied Torah is liable to death. The Gemara asks why this is not counted among the seven Noahide commandments, and answers, in one answer, that it is included in the prohibition of theft: It is an inheritance for us, not for them. From this he inferred that one who infringes copyright is literally a robber, and accordingly he is disqualified for every matter for which a robber of money is disqualified.

F. Unique information is an asset

The Netziv, in Meshiv Davar part I, sec. 24, brings proofs for this from aggadic passages. The Gemara in Avodah Zarah 19a, and likewise in Eruvin 54a, states that when one learns Torah, the Torah becomes called his Torah; from this the Netziv infers the halakhic principle of ownership over novel Torah insights. To this proof from aggadah[34] one may add a proof from the rebuke of Rabbi Eliezer the Great to his students for not having come to learn from him, Sanhedrin 68a:

I learned much Torah and taught much Torah. I learned much Torah and diminished my teachers no more than a dog lapping from the sea. I taught much Torah, and my students diminished me only like a brush in a tube… (I learned much Torah and taught much Torah. I learned much Torah and diminished my teachers no more than a dog lapping from the sea. I taught much Torah, and my students diminished me only like a brush in a tube…)

At first glance, one who learns Torah from someone does not diminish the teacher in any way. If so, why is Rabbi Eliezer’s learning from his teachers described as subtracting a little from their knowledge? How is it like removing a few drops from the sea from which a dog laps? Rashi there addresses this difficulty and explains that Rabbi Eliezer means the difference between him and his teachers, and that this difference is as small as those drops compared with the sea. But this interpretation seems strained in the language of the Gemara.

The matter fits well, however, if taking information is regarded as a diminution, whether it is done without permission, as in theft, or with permission. It is true that ‘a candle for one is a candle for a hundred,’ and the information still remains with its owner as before; but after the information is taken, whether with permission or without, it is also in the possession of the taker, and no longer remains uniquely in the owner’s possession. We learn from this that only unique information is an asset, and harming its uniqueness in the hands of its owner is harm to that asset, and that is geneivat da’at. Of course, there is no prohibition when this is done with the owner’s consent, as in Rabbi Eliezer’s learning, but when the taking is without permission it is theft or robbery.

Perhaps this is also Rashi’s meaning there when he wrote that the deficiency on the teacher’s side lies in the gap that exists between him and his student. That gap points to the quantity of information still found only in the teacher’s hands, the uniquely held information. Only such information is regarded as an asset. In the terminology of the Netziv cited above, one might say that when the Torah that is taken is known to all, it is no longer this learner’s Torah but the property of the many. From here we infer that information constitutes an asset only if it is unique to its owner. If it is public knowledge, then there is no longer any prohibition in taking it, for nothing has been taken here that can count as an asset. This is true both for personal information, of which Rabbi Ḥayyim Palaggi speaks in the Ḥikekei Lev cited above,[35] and for the creation with which we are concerned here. When these items of information are publicly known, they are no longer regarded as their owner’s asset, and they may be taken without permission. There is, however, still room to discuss how large the group is to whom the information must be known for this to be so.[36]

From everything stated in the last chapters, it seems that one can extract from the rule of geneivat da’at a principle of ownership over information, for otherwise theft would not apply to information. It further appears from here that with respect to rights in information there is also room for theft, and perhaps robbery, not merely ownership in the abstract, and this is contrary to the view of the author of Emek Ha-Mishpat cited above.[37] That is, from here one may derive a source for the first two levels of the discussion of copyright. The third level, that which concerns the duty to compensate, will be addressed in chapter H.

G. Information is an asset because it is not attached to a tangible object

To complete the circle, let us return to the discussion in chapter B above, and to the dispute over whether Jewish law allows for ownership of abstract entities. We raised several possible distinctions between abstract entities connected to concrete, tangible objects and entities that exist separately, such as copyright. On the other hand, we also saw a distinction between abstract entities and rights in a creation that cannot even be called an entity. We concluded that discussion by asking whether these distinctions, though seemingly possible, do in fact exist in Jewish law, and we sought a source for that.

In light of our discussion here, the very existence of the concept of geneivat da’at teaches that even if there is no ownership over abstract entities generally, information is different from other abstract entities: with respect to it there is a possibility of ownership, and accordingly of theft as well. We propose the following explanation. In our view, the reason is that information is an entity not connected to a concrete object, and therefore it can be acquired in its own right, as explained there. The fact that a creation is not an entity at all will presumably characterize only those who hold that a creator has no right over his creation, such as the Ḥatam Sofer, Rabbi Akiva Eger, the Maharsham, and their camp. They will probably explain the rule of geneivat da’at differently, and we have already seen that the commentators may indeed disagree in their understanding of this rule, or else they will dispute the extension we have made from geneivat da’at to copyright infringement.[38]

According to our view, there is no need at all to resort to the puzzling claim of the author of Emek Ha-Mishpat, at the end of sec. 15, that the idea of the work is a product of the brain, which is itself a tangible object, and therefore the idea is transferable. According to our approach, precisely the fact that information is an entity not tied to a concrete object is what makes it possible to define ownership and a prohibition of theft with respect to it, as explained.

H. The duty to compensate

But if we ground ownership of a creation in the concept of geneivat da’at, then just as Jewish law does not impose a duty to compensate for geneivat da’at, so too, seemingly, there would be no duty to compensate for infringing copyright. Yet one must ask whether the exemption from compensation in geneivat da’at stems from the fact that a theft of this kind has no monetary value, or whether it follows from the fact that what we have here is not theft in the full legal sense. According to the first possibility, one may say that in copyright infringement there is indeed a duty to compensate, because such rights, at least in some cases, do have value. But according to the second possibility, if there is no theft here, we have no source from which to derive a duty to compensate.

We have seen that several decisors derived the duty to compensate from the obligation to pay for benefit. Navon, in his article, concludes that the problem is still unresolved, because the duty to pay for benefit exists only where one benefits from objects owned by the party from whom the benefit is taken; see also Emek Ha-Mishpat and Rabbi Zalman Nechemia Goldberg’s article cited above, section 11, where they proved that even benefit derived from another’s monetary investment obligates payment, though with a creation there is not necessarily a monetary investment. According to our approach, however, if there is indeed ownership over information, then even if we do not yet have a full legal prohibition of robbery or theft, there is still enough here to ground a duty of compensation by force of the rules of payment for benefit, obligating the one who benefited from it.

Still, one might raise the argument that in copyright infringement there can be no duty of restitution, as there is in robbery or theft, because the information still remains with its original owner.[39] Yet one must take into account the point we learned from the discussion of the passage in Sanhedrin cited above, namely that information constitutes an asset only if it is unique to its owner. That uniqueness is in fact no longer present in the owner’s possession, and therefore there is room to obligate the infringer to make restitution. Even if in practice it is impossible to restore the uniqueness of the information to its owner, this is like one who stole an object that is no longer physically present in his possession, and he must compensate the victim in money.[40]

I. The implications of grounding copyright in geneivat da’at

Our remarks do not answer every possible case of taking a creator’s right. There is room to distinguish between one who copies a tape and one who distributes it commercially; between one who copies software from a disk he lawfully purchased and one who copies without a disk, or from the publisher’s disk; between a situation in which the publisher has covered his investment and one in which he has not; between a first edition and a second edition; between a visual creation, such as a picture, and an intellectual creation; between novel Torah insights and other forms of creation; between one who cites novel Torah insights not in the name of the one who said them, or in his own name, which concerns the moral right, and one who uses them for profit; between a genuinely new creation and proofreading or notes on an existing book; between copying in the original quality and copying in inferior quality; between copying one song and copying the entire tape. One must likewise discuss: is there a prohibition? Is the person obligated to pay? Can he bequeath it? Can he transfer or distribute it? What is the status of the copy itself? And so forth.

Nevertheless, our proposal, by grounding the matter in the concept of geneivat da’at, sheds light on several points in the discussion of copyright, and we will mention them briefly:

1. First, on the conceptual-analytic plane: the principal difficulties pointed out by Navon in his article do not exist according to our proposal. If what we have said is correct, there is a way to ground copyright, as well as all other intellectual property, in Torah law itself.
2. The author of Emek Ha-Mishpat, sec. 11, notes that purchase and inheritance of rights cannot occur unless they are borne by a tangible object. But according to our approach there is room to say that such rights can be acquired even without the concrete object, and see there the decisors who take that position. This follows from our claim that the need for transfer through a concrete object is true only of abstract entities that are carried on tangible objects. On this hinge the disputes regarding the inheritance of copyrights that have not been printed and do not exist in any other tangible form, for example novel Torah insights or an idea learned orally.
3. According to our proof from the passage in Sanhedrin, only unique information is regarded in Jewish law as an asset. If so, information that has been publicly published, as distinct from information sent privately to someone, as in the case discussed in Ḥikekei Lev, would seem not to be subject to any prohibition if taken and used, unless this was stipulated at the time of publication, or there is an implicit understanding that the owner so stipulates. Once it has been publicly published, the information no longer constitutes the asset of its discoverer or originator.

Of course, there is room to discuss the distinction between a discoverer and an inventor. A discoverer uncovers laws of nature, and it is difficult to prohibit technological or theoretical use of laws of nature that someone discovered under the rubric of geneivat da’at. But an inventor brought a new creation into the world, and it is considered his property.

4. In chapter F we saw that there is a duty of restitution even with respect to the uniqueness of information, which is also considered an asset. If the uniqueness of the information is indeed the asset that has been harmed, then there is a duty of restitution, as in ordinary monetary robbery and theft, and not merely an obligation of payment for benefit, though that too may exist. Accordingly, where it is possible to restore the uniqueness of the information to its original owner, one should certainly do so. For example, when the copier has in his possession a disk, or a printed book in his own edition, he should destroy them, or at least erase the information from them. Payment of compensation is only a means of restitution, and that only if there is no practical way to restore the uniqueness to its owner. See Emek Ha-Mishpat 28:66-70, where he discusses this issue and concludes that one cannot compel the person to return or destroy the tape. His assumption is that the prohibition and the obligation to pay derive from the law of benefit. According to our approach, that does not seem correct.
5. Beyond that: if payment is indeed by force of the law of benefit, then in every case we must ask whether the injured party actually suffered a loss, for otherwise the infringer is not obligated to pay. For that reason, the author of Emek Ha-Mishpat resorts to the rule of meshtershi, which obligates payment even without loss.[41] But if the obligation is indeed one of restitution, as in ordinary theft, then there is an obligation to pay even if the injured party did not suffer a loss in the ordinary sense, because he lost the uniqueness of the information.
6. It follows, of course, that this can also affect the valuation used to determine how much must be paid. According to our approach, the valuation is based on the value of the uniqueness of the information, even though this is not simple to appraise, and not on the concrete loss. See Emek Ha-Mishpat, part three, where he discusses at length the valuation of payment in the various scenarios.

[1].   See at length in Prof. Nahum Rakover’s book Zekhut Ha-Yotzrim Ba-Mekorot Ha-Yehudiyim, Jerusalem 5751, hereafter: Rakover. Also in Rabbi Yaakov Avraham Cohen’s Zekhuyot Yotzrim, which is the fourth volume in his Emek Ha-Mishpat series. For a concise survey of the substantive problems in this area, and additional references, see Ḥayyim Navon’s article, ‘Copyright in Jewish Law,’ Tzohar 7, Summer 5761, hereafter: Navon. A few additional references will be mentioned below.

[2].   See, for example, Rakover. It seems that the author of Emek Ha-Mishpat does not sharply distinguish between these two.

[3].   One might have raised the argument that even if there is no clear source, neither in the Torah nor in the words of the Sages, for the principle of ownership over copyright, and even if we lack the authority to derive new expositions from the verses or to institute new enactments, there is still room for the reasoning that had the Sages lived in a world in which this question was relevant, for example our own, they themselves would have prohibited it. This seems implied by the words of the author of Sho’el U-Meshiv and of Rabbi Yosef Shalom Elyashiv, whose statements will be cited below at the end of chapter A. A similar line of reasoning appears in Iggerot Moshe, Orah Ḥayyim IV, sec. 60, regarding the use of a Sabbath clock to activate electrical devices: had such a thing existed in the time of the Tannaim and Amoraim, they would have prohibited it, just as they prohibited instructing a gentile. From that comparison one may learn that it is possible that the matter would even have been prohibited at the Torah level, since Beit Yosef, Orah Ḥayyim end of sec. 244, cites the Semag, prohibitions 75, that instructing a gentile is prohibited by Torah law from the verse No labor shall be done. There is still room for hesitation as to whether the intent of Iggerot Moshe is that automatic activation by a Sabbath clock is included within the prohibition of instructing a gentile, and thus merely expands that prohibition, or whether it is a further new exposition from the same verse. Below, later in this article, we will propose that the prohibition against infringing copyright derives from the prohibition of geneivat da’at, and here too there is room for hesitation: even if copyright infringement is included in the prohibition of geneivat da’at as presently defined, perhaps had the Sages lived in our time they would have included such infringement within geneivat da’at, and perhaps even derived a new exposition from the verse Do not steal – do not infringe another person’s copyright.

On the other hand, there are those who argue that precisely because there is no reliable source in the words of the Sages prohibiting infringement of copyright, and the entire prohibition is drawn only from gentile culture, it is clear that there is no prohibition at all. See Navon, especially around note 11, and Rakover, p. 91, who cite Rabbi Monk in Responsa Pe’at Sadek, sec. 158, who writes that this permission is utterly self-evident.

[4].   In his article ‘Copyright,’ Techumin 6, 5745, p. 179.

[5].   This was noted in Responsa Parashat Mordechai, Bonat, Ḥoshen Mishpat sec. 7, and elsewhere. Some defined that, for purposes of copyright, the ‘state’ is the whole world, but that seems to be only a formal definition and does not answer the substantive problem.

[6].   Rabbi Zalman Nechemia Goldberg, in his article ‘Copying from a Cassette without the Owner’s Permission,’ Techumin 6, 5745, pp. 185-207, broadens the possibility of using the principle of payment for benefit. See also Navon’s article cited above, and Emek Ha-Mishpat.

[7].   See Rabbi Goldberg’s article cited above, section 11.

[8].   There is room to distinguish between unique knowledge and an invention, and below we will note this briefly. On this, see Emek Ha-Mishpat. Below we will also see the decisors’ treatment of the degree of novelty in the creation under discussion.

[9].   See, for example, Rabbi Bar-Ilan’s article, Techumin 7, 5746, pp. 360-367, and Navon.

[10]. The discussion here is principled and halakhic. One can regard infringement of copyright as prohibited by force of the law of the land, by force of artisans’ agreements, by situmta, and the like. Our concern here is a principled halakhic perspective on a creator’s rights in his creation, even if he and the user of his creation both live on a desert island.

[11]. According to their approach, the words of those decisors who discussed prohibiting infringement of the rights of authors through bans, enactments, and the like, among them Rabbi Akiva Eger, the Ḥatam Sofer, the Maharsham, and others, require explanation. See Emek Ha-Mishpat sec. 20, who cites Rabbi Wosner as explaining that they referred only to books that contain no creative novelty. That is a very strained reading of their language, as he himself explains there.

[12]. It seems from their wording that they did not mean to ground the law itself in the law of the land, for in that context what matters is only the law of the particular state in question. Rather, they seem to mean that they are bringing support for their position from what is accepted in all legal systems throughout the world, and inferring from that something about the approach of Jewish law itself. The author of Responsa Pe’at Ha-Sadeh, see above note 3, cries out bitterly against this and sees in it a mistaken borrowing from gentile law and the customs of the nations.

[13]. In my view, the author of Emek Ha-Mishpat, with all due respect, exaggerated somewhat here. This determination depends on differing understandings of many complex discussions, such as a thing not yet in existence, ownership of fruits, rental, acquisition of mere words and obligations, and more. From quite a number of medieval and later authorities it emerges that the problem lies in ownership, not only in the imposition of an acquisition. The topic of reservation, which he discusses extensively, is only one of the relevant discussions. True, from the Rashba’s responsum on reservation cited there, and from several other medieval authorities there, his position is indeed proven; but it is difficult to assume that all authorities would agree, especially since there is no source for this in the Gemara passage itself. Even from the Rashba’s own wording it appears that he presents this as his own reasoning. See also the commentators on the topic of reservation in Bava Batra 63 and 148, and in the Tur, Shulḥan Arukh, and their commentaries on Ḥoshen Mishpat 209:6 and 214:5.

I will bring only one example out of several. The author of Netivot Ha-Mishpat 276:4, also cited by Emek Ha-Mishpat in sec. 24, wrote that if a person has ownership over something tangible, then it is obvious that he can also bequeath it, because there is no reason to say that after his death it becomes ownerless. On that basis, in the dispute among the medieval authorities regarding the inheritance of the air above a courtyard or a house, the Mordekhai and Ba’al Ha-Ittur, cited by the Rema there, hold that the air can be inherited, while the Ran holds that it cannot, where most of the medieval authorities maintain that one cannot inherit air because it lacks substance, it follows that there is no ownership at all of such air. Otherwise, according to Netivot Ha-Mishpat, it could be inherited as well. This also seems to be, to some degree, the intent of Maharam Schick in his dispute with the author of Maḥaneh Ḥayyim, see Emek Ha-Mishpat sec. 24. Below, however, at the beginning of chapter D, when we discuss Maharam Schick’s approach to geneivat da’at, we will see that it is difficult to understand him that way.

It should also be noted that there is a group of decisors who hold that there is no ownership over a creation, among them the Ḥatam Sofer, Rabbi Akiva Eger, the Maharsham, and others, all cited in Emek Ha-Mishpat secs. 17-23. He interpreted their intent as referring only to works that do not involve genuine creativity, but the plain meaning of their language indicates that the problem is with anything lacking substance. It may be, however, that they intended only words of Torah, regarding which several decisors wrote that there is an obligation to transmit them to the public, and therefore only in that context is there no ownership. On that reading, nothing can be inferred from there regarding other intellectual property in secular works. Still, see Emek Ha-Mishpat 20:257 and onward, where he himself rejects that suggestion.

[14]. See also Rabbi Zalman Nechemia Goldberg’s article cited above, and Rabbi Bar-Ilan’s response cited above.

[15]. If there is indeed a possibility of ownership over such entities, it is difficult to see why there should be no definitive intent to impose that ownership, and it is certainly difficult to say that Jewish law has no act of acquisition defined for them. Emek Ha-Mishpat’s distinction is therefore conceptually difficult, and it is all the more difficult to say that this novel principle is universally agreed upon, as he claims.

[16]. See, for example, the citation above from Rabbi Wosner, Iggerot Moshe, Orah Ḥayyim IV, sec. 40, note 19, Sdei Ḥemed, the Alef system, Shiurei Ha-Pe’ah rule 35, and Maḥaneh Ḥayyim cited there, among others. See also Magen Avraham 156:2, Rabbi Akiva Eger and Sha’arei Teshuvah there, in the name of the Tanhuma, from the verse Do not rob the poor. This appears in the approbation to Sefer Ha-Baḥur, which many cite as the earliest source prohibiting infringement of copyright, namely that one who prints without permission is a robber. See Rakover, p. 130.

[17]. He argues that the foundation of the prohibition of benefiting is theft. See Rabbi Zalman Nechemia Goldberg’s article cited above, Techumin 6, sec. 12/1, where he proved, at least regarding the obligation to pay, that this is not so. Accordingly, our difficulty with Emek Ha-Mishpat returns in full force.

[18]. See the dispute among Maharam Schick, Maḥaneh Ḥayyim, and Sdei Ḥemed cited in Emek Ha-Mishpat sec. 24. According to our view, the matter fits very well.

[19]. See Avnei Milu’im, responsum 21; Kehillot Ya’akov, Nedarim sec. 44. Below we will note that such an understanding is necessary in Sdei Ḥemed’s position mentioned above where he disputes Maharam Schick.

[20]. In Emek Ha-Mishpat sec. 23 he wrote this distinction in order to explain the views of the dissenters who hold that there is no ownership over a creation.

[21]. For a detailed survey, see Encyclopaedia Talmudit, entry ‘Geneivat Da’at.’

[22]. See Encyclopaedia Talmudit there, note 12, and the editor to the Ritva there, note 258.

[23]. Several decisors have already noted, see Encyclopaedia Talmudit there, that geneivat da’at applies mainly where the seller charges the realistic price for the merchandise. That is, he sells a defective object but takes for it the lower price appropriate to a defective object. If he were to charge the price of a non-defective object, this would amount to overreaching, and perhaps outright theft. On that basis one could have said that here too there is an issue of stealing gratitude, for the buyer receives an object that he thinks is complete at a discounted price, and gratitude is thereby created. But beyond the fact that this is not what the decisors seem to mean, it is clear that even where there is overreaching there is still a prohibition of geneivat da’at, though gratitude has no relevance there.

[24]. As we will see below, this is what distinguishes geneivat da’at from ordinary falsehood: every statement that is untrue is falsehood, but it becomes geneivat da’at only when the information ‘belongs’ or ‘is due’ to the person from whom it is concealed.

[25]. According to our approach, Rashi’s definition of geneivat da’at as taking unearned gratitude may serve as one possible, though not necessary, example of the theft of relevant information. Perhaps the gratitude itself is what is stolen, but that too is an example of stealing a person’s understanding. Both stealing information and stealing gratitude are examples of stealing understanding.

[26]. It should be noted that the Ritva is not troubled by the very conceptual connection between geneivat da’at and ordinary theft, but only by the fact that ordinary theft with respect to a gentile is disputed, whereas geneivat da’at is, according to all, prohibited even with respect to a gentile. That itself indicates, as we argued above, that the Ritva sees in geneivat da’at an element of theft, namely the theft of another person’s understanding. This fits his own position that the prohibition of geneivat da’at is derived through a full exposition from Do not steal.

[27]. One might have said that there is no prohibition at all, only that the requirement of ‘yours’ is not fulfilled, but Rabbi Shimon Shkop did not explain it in that way.

[28]. In Bnei Yissaskhar, Derekh Pekudekha, prohibition 36, thought section, letter 4, it is written that stating someone else’s novel Torah insights in my own name, that is, infringing the moral right, is a form of kidnapping, at least when one does so for honor or money. On this see also Rabbi Shaul Yisraeli’s article in Techumin 4, 5743, pp. 354-360. Grounding the matter in kidnapping intensifies the relationship between geneivat da’at and the broader sphere of theft.

[29]. A falsehood that is not geneivat da’at would be where a person lies with respect to information that does not belong to the other person, that is, information that the other is not necessarily entitled to know.

[30]. See above note 18.

[31]. Examine his language there carefully; it strongly supports our interpretation. See also the wording of Ibn Ezra on Genesis 31:20 and elsewhere.

[32]. This supports Emek Ha-Mishpat’s understanding of Maharam Schick, mentioned above, that ownership applies even to ideas, and that his dispute with the author of Maḥaneh Ḥayyim concerns only the possibility of robbing ideas.

[33]. See there, first gate, second chapter, especially notes 8-9. See further there, where he discusses whether this definition is relevant even when the person does not mention the innovator’s name, or only when he attributes the words to himself.

[34]. It seems to me that here the aggadah speaks incidentally, and this reveals the way the Sages related to the taking of information, rather than serving as a direct derivation. Therefore, in my opinion, there is no barrier here to learning Jewish law from aggadah.

[35]. Thus, with respect to a personal secret known in the presence of three, which for several halakhic purposes is no longer included within the category of a secret. See Ḥafetz Ḥayyim, laws of talebearing, end of rule 9, and laws of evil speech, end of rule 2.

[36]. The fewer people know the information, the more it is ‘worth.’ True, this concerns only the amount of compensation, but with respect to the prohibition itself the matter requires discussion. Interestingly, here too one can see an analogy to the rule of information known to three regarding evil speech and disclosure of a secret. See the well-known words of Rashbam on Bava Batra 39b and Tosafot there, and the commentators, regarding the question whether knowledge by several people turns information into public information that is no longer a secret and may be disclosed. The Ḥafetz Ḥayyim also discusses this rule of three there; the matter is longstanding.

[37]. One must discuss whether the wrongdoer here is a damager or a thief. That question touches on the relationship between theft and damage, and this is not the place for it.

[38]. See above note 3.

[39]. So too Sdei Ḥemed wrote, distinguishing between the sound of the shofar, where there is no theft because the shofar itself can be returned, and rights in novel Torah insights, where nothing can be returned.

[40]. If we were to ground this in the law of damage, rather than in the law of a robber or thief, the matter would be easier to understand, even on the side that the information itself is the asset. On that approach, the information is damaged rather than stolen. According to our approach, however, the asset is the uniqueness of the information, and therefore it can indeed be characterized as theft or robbery, and not necessarily only as damage. See above note 37.

[41]. It should be noted that this innovation too, of Rabbi Shimon Shkop and Ketzot Ha-Ḥoshen, is by no means universally agreed upon. Still, see Emek Ha-Mishpat sec. 28, where he discusses whether one can impose liability under the rule of ‘your property is in my possession,’ which is stronger than the rule of meshtershi.