Halakha and Law – Lesson 6

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[Rabbi Michael Abraham] Benefit of discretion means the question of whom to give the terumah to. Say, if the terumah is the property of the priests, but I can decide which priest I give it to. So I can say, to this priest I’m giving it to you. That means I basically have some kind of power that has monetary value, because I can decide whom to give the terumah to. But they discuss whether benefit of discretion is actually considered property or not. But there too, it could be that the claim is that benefit of discretion is a kind of ownership over the terumah itself. So I have—there is an actual object here, the terumah. But the terumah as such is not my property; it belongs to the priests. And the fact that I can give it to whomever I want means I have a certain control over the terumah. And then that means this is really ownership of the principal for the sake of its produce; it’s not ownership of produce alone. Because ownership of produce alone really has no object to it, and that is something completely non-tangible. You can’t be the owner of the use of a house. There’s no such thing. When you rent a house, that’s a very interesting question—what exactly a house rental is—but in the accepted conceptions, it’s not ownership over uses. Either ownership of the principal for the produce, or various kinds of payment for uses and permission to use, but it’s not ownership. Okay? There is a Tosafot that wants to claim that it is literally ownership over use, that renting is the place where it is newly introduced that there can be ownership over produce—not ownership of the principal for produce, just produce. But that’s a very novel Tosafot. The accepted halakhic conception is that there’s no such thing—no ownership over produce, over the uses of a hammer. You can’t be the owner of the uses of a hammer. You can own the hammer for its uses, because ownership always has to be anchored in some tangible object. Benefit is an abstract thing, so you can’t own it. So copyright too is really another example of that same kind of difference in discourse. Now today I wanted to touch on this a bit anyway. I once wrote an article about it, and I wanted to present the solution I suggested for this issue. I think it’ll be an interesting supplement to our look at halakhic jurisprudence. Even though it’s not really a continuation of what we’ve been doing until now, we touched on copyright, and I want to show how you can still solve this problem. There are various—maybe I’ll bring a few examples. There are two books where you can find a lot of sources on this matter—maybe there are a few more, but the ones I used were Emek HaMishpat, by a Jew named Rabbi Cohen from Netanya; he was a judge on Rabbi Nissim Karelitz’s religious court. And there’s a book by Rakover on copyright, which gathers a huge number of references. By the way, that whole article came out of a Sabbath that Rakover invited me to lead. He has these weekend workshops for judges and jurists and the like, so he once invited me to lead one of them, and we dealt with slander and gossip. Among other things he prepares a little sourcebook for the Sabbath, and they study it together with the guests and discuss the sources a bit. Among the materials there was a responsum of Rabbi Chaim Palagi, in Chaim Sha’al, where he forbids reading a letter—that is, he asked what the halakhic source is for Rabbeinu Gershom’s ban. There are various bans, one of which is the prohibition against reading letters, reading and opening someone else’s mail. And he claims—actually he claims that Rabbeinu Gershom’s ban, at least in most cases—not divorcing a woman against her will and so on—but the other bans of Rabbeinu Gershom are really prohibited by Torah law. He didn’t invent the prohibition; he placed a ban on anyone who didn’t observe the prohibition. But it’s not that the prohibition itself was created by Rabbeinu Gershom. Now regarding opening letters, he brings several sources there; one of them is stealing a person’s mind—deception. So Rakover said to me, when we were talking before that Sabbath or before that weekend, “What a baffling midrash—Rabbi Chaim Palagi writes that this is connected to deception. Deception is some attempt to trick someone or something like that. But explain the point to me—what does this have to do with deception?” So I thought about the issue while preparing those workshops, and from there came my article on copyright. I’ll explain in a moment why it’s connected. In any case, I’ll bring you maybe one or two sources so you can see the approach, especially from one of those books I mentioned. After that Sabbath, I spoke with Rakover, and I told him, listen, the books you publish—the books—he has this institute of Jewish law, and he publishes various books collecting material on different topics. The books are very nicely edited, very well done, but they’re terribly superficial. Meaning, all you really do is sort opinions; you don’t look at the deeper layer, at their principled roots, you don’t get into the meat of it. He was a little offended; I was young and a bit insolent. But that was one of the things, by the way. When you think about the root of that responsum of Chaim Palagi, it opened up whole worlds for me. I think my claim is that, for example, cloning, genetic duplication—you can derive a great many things from here. There was some workshop at Bar-Ilan where I gave a lecture on this once, with Neal Hendel; there was a panel with Neal Hendel on this topic. And I argued that this too is really taken from here: ownership of information.

[Speaker B] What, you have to study the superficial layer too.

[Rabbi Michael Abraham] No, no, of course you do, I didn’t say otherwise. I wasn’t against it. On the contrary, it’s very useful work. I said that it would be worthwhile, after you arrange things, to ask too: in what way is this different, and why is it different from Israeli law?

[Speaker E] In short, where does it grow from?

[Rabbi Michael Abraham] Yes, like what we did regarding lost property, returning a lost item, for example. You see a difference. Now everyone goes over that Hendel ruling, and I haven’t seen one person ask himself why Jewish law is really different here from the legal world. Everyone takes it for granted that it’s different. Now the question is whether the Foundations of Law Act allows me to draw from Jewish law, doesn’t allow me to draw from Jewish law, discussions like that. But to my mind it’s much more interesting to ask why it’s really different. Why there’s a different mode of thinking here. In Sho’el U’Meshiv he writes: “And it is certainly the case that when an author prints a new book and merits that his words are accepted throughout the world, it is obvious that he has a perpetual right in it. And our complete Torah should not be as worthless chatter compared to theirs. And this is something reason itself denies, and every day we see that when one prints a work, he and his agents have rights.” But he doesn’t explain where it comes from.

[Speaker B] So he says—

[Rabbi Michael Abraham] It can’t be that the whole world recognizes this and only we would be backward in this area.

[Speaker B] Because the whole world recognizes it—that’s his derivation from the phrase “our complete Torah should not be as worthless chatter compared to theirs.”

[Rabbi Michael Abraham] And Rabbi Shimon Shkop writes this too.

[Speaker B] But if he says it’s “their worthless chatter,” that sounds like some kind of inferiority complex.

[Rabbi Michael Abraham] No, the opposite. It’s this kind of embarrassed argument: what, even those people, whose conversations are worthless chatter, understand that this is a correct idea, and we with the Torah won’t understand it? That can’t be. By the way, there really was Rabbi Mook in Haifa, who once published some collection—responsa Beit Yitzhak? I don’t remember exactly what his responsa was called. A zealot in Haifa, a real zealot. He has a responsum on the question of whether, if they’re chasing you and threatening to kill you, you’re allowed to hide in a church of heretics. Whether you may hide in a church, or whether you have to die rather than enter a church, because it’s a house of heretics. But never mind, a zealot is a zealot. Among other things, he attacks expressions like these. What do you mean, we learn from gentiles? If the gentiles think there’s intellectual property, then they’re idiots. What does that have to do with me—why should I learn a kal va-chomer from gentiles to Jews? What kind of thing is that? Where have we ever heard such a thing—that if the gentiles think something, then Jewish law recognizes it too? Rabbi Shimon Shkop writes at the beginning of his novellae on Bava Kamma: just as in all matters relating to a person’s rights it is agreed, according to both Torah law and the law of the nations, that whoever invents something new in the world is its owner with every right—so too for us as well. So he too is basically making that same move. But anyone familiar with the intellectual discourse has to ask himself: okay, I understand the interest, why you want this to be so. It makes a lot of sense, it creates proper social order, all good—but where is the source? Fine, there is no ownership over something non-tangible. How do you solve the problem that everyone is struggling with? And in Chok U’Mishpat they bring—and Rakover brings too—from contemporary halakhic decisors. Rabbi Wosner writes there in his approbation to the book Emek HaMishpat: “As for the substance of the law, certainly the Torah’s view inclines that there is a prohibition of theft.” And what about something non-tangible? A full-fledged prohibition of theft. He brings a whole series—Rabbi Elyashiv too—a whole series who say it is simply theft. For years and generations people have dealt with the issue of encroachment and tried to find a solution to it, and then a collection of relatively recent decisors, like Rabbi Elyashiv and Rabbi Wosner—presumably both are cited there—but they say: what do you mean, it’s theft; common sense inclines that it’s theft. “Common sense inclines” clearly means: I don’t have a source, but it can’t be that this is not theft; it has to be theft. That’s really the claim. Yes: “that there is a prohibition of theft in what another person has invented completely anew.” If it’s an idea that is entirely yours, then it is prohibited theft—whether in books of Jewish law and the like, or in other matters, and also according to the law of the kingdom everywhere in the world. And all the great rabbis of the generation suddenly learn—now here he doesn’t bring it as being by force of the law of the kingdom, but rather because since the law of the kingdom is this way, it is unthinkable that the Torah would not be. Meaning, he’s not trying to say it is prohibited because of the law of the kingdom; he brings proof from the fact that in the law of the kingdom it is this way, that it cannot be otherwise—just as we saw earlier. In other words, almost casually, they all say there is a prohibition of theft here. And what does a prohibition of theft mean? After all, for generations people have already discussed this question, and it’s clear to everyone that there can’t be theft here in the simple sense; there is no ownership of something abstract.

[Speaker B] Let me ask you—no one brought these sources twenty years ago?

[Rabbi Michael Abraham] I didn’t see any. The sources they brought in those books—they did that research; I didn’t. I saw no mention of this. So all this is something new in the later generations?

[Speaker B] He asked—

[Rabbi Michael Abraham] He—and orally—they don’t write all this here.

[Speaker B] It’s not written here?

[Rabbi Michael Abraham] It’s written in the approbation to his book, Emek HaMishpat. He simply interviewed them. It’s an approbation where he writes that they said this to him. Yes—no, inside the book or—

[Speaker B] In the approbation, Rabbi Wosner’s approbation. In Rabbi Wosner’s approbation, Rabbi Wosner writes this in the approbation to the book—

[Rabbi Michael Abraham] And he writes it following a conversation he had with the author. An approbation in which he writes that he heard it orally from all—what? In the approbation: Rabbi Wosner wrote the approbation to the book, and there he writes that “common sense inclines”—that’s Rabbi Wosner’s language—“as for the substance of the law, certainly the Torah’s view inclines that there is a prohibition of theft in what another person has invented completely anew.” Now inside the book, the author brings that he asked Rabbi Elyashiv, he asked—I don’t know—Rabbi Ovadia, I don’t remember exactly whom; he brings a whole list of decisors he asked, and they said yes, it’s theft, clearly theft. Theft? For generations the world has been circling around the question of how to formulate this prohibition, and everyone understands that there can’t be a prohibition of theft in the literal sense. And now everyone is saying—this brings us back to what you said earlier—it is completely clear that we can’t escape the fact that our way of looking today at something non-tangible has changed dramatically from what it was a few decades ago. Now again, the discussion of something non-tangible already existed in the time of the Talmud; it’s not that the discussion is new. But the concept of something non-tangible is perceived today in a completely different way from how it was perceived then, and that means Jewish law probably also has to be different. Meaning, there are—what we once talked about—halakhic rulings under exceptional circumstances. I gave the example of the Holocaust, something I spoke about not long ago, or I also talked about music. Decisors prohibit it, and they’ve never actually experienced it; they only imagine what a person going to hear a Guns N’ Roses concert is going through, and therefore they prohibit it, but they haven’t really experienced it themselves. And if there is something you haven’t experienced yourself, it’s not certain that you can truly issue a halakhic ruling about it. Again, unless it doesn’t depend on the experiential perception of the matter but on some formal prohibition or other—that’s something else. Say that a woman’s singing voice is a formal prohibition and doesn’t depend at all on what it does to you—but if you accept, as many decisors do, that it does depend on what it does to you—there’s a very well-known Seridei Esh and he has novel ideas on this—that it depends on what it does to you, then you need to understand that if you haven’t experienced it, it’s not certain you really understand what the person in that situation is going through. And certainly in the Holocaust, various situations that we were not in—and I hope we never will be—but situations so far removed from us that it’s very hard to understand or judge what exactly they mean. I gave there the example of ownership of money in the ghetto, yes? In a place where any Ukrainian kid could shoot you in the head and take all your money, there was Rabbi Gibrelter there who said: in such a place, there is no ownership. Now that’s not an opinion an outsider could have given; it would never have occurred to him to say such a thing. But someone who lives inside it understands. I remember I gave the example—and to me it’s a powerful example—of two people in an elevator that breaks down and is falling to the ground at top speed. You’ll be dead in two seconds; if you’re in the elevator, that’s obvious. In two seconds you hit the ground and are crushed—an elevator from the thirtieth floor, okay? Now you and one other person are in the elevator, and you want to write a will, but you don’t have a pen. You take the other person’s pen; he doesn’t want to give it to you. You forcibly take his pen, write a will, throw it like a paper airplane out the window, and crash. Both of you die. Did you violate theft? Did you violate theft? He didn’t give it to you. As long as you’re both alive, it’s his pen; you’re forbidden to take it without his permission. But someone who lives in such a situation—I at least can understand, though I’ve never been in such a situation—I can understand that someone in such a situation would say: listen, spare me, these are study hall pilpulim. I was in the situation, and I’m telling you that in such a situation there’s no problem with this. Our whole world is going to disappear in two seconds. Both his and mine. There won’t be a trace left of us, nor of that pen. So in those two seconds it’s a bit like an item swept away by the sea, by the way. Essentially we’re all inside one big case of an item swept away by the sea, okay? And therefore—maybe you could even bring proof from that; I hadn’t thought you might be able to derive proof from an item swept away by the sea.

[Speaker D] But maybe also from the lion, the bear, and the leopard.

[Rabbi Michael Abraham] It’s the same idea, yes. Or from an item swept away by the sea—it appears in the same list. So the claim is that when we live in this generation and understand what intellectual property means—you can describe it to someone who doesn’t live it, explain what the internet is and what information is and how it’s used. Maybe you can somehow explain it and he’ll manage to imagine roughly how the thing works. But he won’t feel it; he won’t experience what it means. Try explaining to him what a website is. For us today a website is a point in space. Even though of course it isn’t any such point in space. That point isn’t located anywhere. But today we see it as a point in space. Now if there were a halakhic decisor who hadn’t lived this phenomenon, he wouldn’t understand what you were even talking about. I can absolutely imagine people today saying that you can make a prayer quorum on a website on the internet. A prayer quorum! Meaning, each person is in another house, but we’re all surfing on some shared site, so let’s make a quorum. Let’s join the quorum. I don’t know if anyone would say that today, but I can understand that in a world where, say, we reach a stage where we stop leaving home altogether—altogether! Everything is done through the network. 3D printers transmit objects. Meaning, there’s no need to leave home for any purpose whatsoever. I believe that in that place they will make a prayer quorum on a website on the internet, with ten people, even though today we discuss what happens if you passed through a wall—do you join those who are here? Jewish law is full of all kinds of discussions like that: behind the synagogue, in front of the synagogue, things of that sort. But when you live in a different reality, it’s a different reality. I once talked about “do not form factions.” I said, why do you need a prayer quorum at all? No—that’s exactly the point. I keep the law as it is: you need a quorum and ten valid Jews, all true. But the gathering takes place on a website and not in a place. Because that changed. I’m not changing the law, and the whole point is that this is not a change in halakhic conceptions. It’s a change in the meanings they receive. The halakhic concepts continue to function, but with a different meaning. Okay. The same with “do not form factions.” According to Talmudic law, it is forbidden to establish two religious courts or two synagogues in one city. And today there is no city without several synagogues. You’ll tell me, fine, different communities. So what if they are different communities? Where does the Talmud say that different communities are allowed?

[Speaker E] And it’s not even in different neighborhoods; in the same city block there are three synagogues.

[Rabbi Michael Abraham] The point is that today the concept of communities is different from what it used to be. In the static world they had then, people were born, grew up, and died in the same place, more or less. They moved a bit, but basically it was a static world. So in a particular place there were people of the same kind, with the same custom, the same liturgy. And it was obvious that you don’t establish two places there; it just creates unnecessary conflict or unnecessary fragmentation. Now in our world today—again, even before the internet—the relevant place regarding, say, local custom is no longer a geographic place. It’s a place that combines within it an ethnic group. Meaning, the custom that originally was the custom of the place—not ancestral custom. When the Talmud says “the custom of your fathers is in your hands,” it means your fathers who lived in this place. Because the assumption is that both the fathers and the sons live in the same place. But it means local custom, not ancestral custom. Today, however, ancestral custom and local custom are no longer the same thing. After all, Rabbi Ovadia fought for the idea that in the Land of Israel it is the site of Maran, and here one should follow the customs of the Shulchan Arukh, because he understood—and apparently rightly—that the binding custom from the halakhic standpoint is local custom, not ancestral custom. When they say “the custom of your fathers is in your hands” in the chapter “A Place Where the Practice Is” in tractate Pesachim, it’s because the fathers were simply in that same place earlier, that’s all. It’s just a mode of expression. The real custom is local custom. But today, no—today everyone understands that custom is ethnic custom, not local custom. Why? Because place today is a dynamic thing. What is place? Today I’m here; tomorrow morning I’m in Australia.

[Speaker E] It’s not—he didn’t really go according to Maran’s custom; he went according to the custom of Eastern Jewry, as opposed to the custom of Western Jewry.

[Rabbi Michael Abraham] That depends on what he did. I’m asking what he wrote. He did different things. He wrote “the site of Maran,” he wrote the Shulchan Arukh—that’s what he meant. What he did in practice—well, the Ben Ish Chai at times, yes, he was Iraqi, so—

[Speaker C] He wanted against that. What? Yes, he was against it.

[Rabbi Michael Abraham] So there’s—he acted in a very—

[Speaker C] very—

[Rabbi Michael Abraham] flexible way, contrary to the declarations.

[Speaker C] Moshe Bar-Asher—

[Speaker E] says his division isn’t correct. There are Eastern Jews, wait, there are Western Jews, according to Rabbi Ovadia, and “our brothers who dwell in lands north of the Mediterranean Sea.” That’s it—that’s how he divides the Jewish world. Forget Rabbi Ovadia for the moment.

[Rabbi Michael Abraham] In any case, I’m saying the point is that in our world, place—even in the pre-internet world—place is already losing the significance it once had, that static place. Everyone were farmers, you had land, you almost couldn’t move, you made your living from there, it was your land, your parents’ land, your grandparents’ land. Today, what’s the problem? I work, I lecture, so I lecture here, tomorrow morning I lecture at a university somewhere else, or I’m a teacher, or I’m an engineer, whatever—so I work.

[Speaker B] In the time of the Talmud, were Jews almost all farmers?

[Rabbi Michael Abraham] In the Talmud? I think so.

[Speaker B] I know that in exile it was always the case that the Jews were—

[Rabbi Michael Abraham] No, in the Talmudic period—definitely agriculture. The Amoraim—“do not appear before me on the day of the market assembly,” Rava says that in Babylonia. They worked in the fields. So the typical Jew worked in agriculture, even in Babylonia. It wasn’t exile like we know from later generations.

[Speaker B] Wait, but in the Talmudic period there were already big cities. In a city with, say, twenty thousand Jews in the Talmudic period—

[Rabbi Michael Abraham] I assume they did establish more because there wasn’t room. You understand? So it may be there was permission because there wasn’t enough room; one synagogue and not everyone fit, so they built another synagogue. By the way, in Alexandria there really was a huge synagogue, so maybe there truly there was only one. The Talmud describes that they would wave flags so people would know when to say Amen.

[Speaker B] Those are the first synagogues or something like that?

[Rabbi Michael Abraham] What, about several synagogues in Babylonia? I don’t remember.

[Speaker B] I’m not talking about Babylonia, but in the early Geonic period and such, they referred to some distinction between an ordinary settlement and—

[Rabbi Michael Abraham] a large city that has responsibility, and who collects from whom, and the settlement’s communal needs. It’s all based on the assumption that the economy is a basic agricultural economy. That’s why I say: it radiates into many things that aren’t connected to land at all. Local custom has nothing to do with land, but you understand that the conception of land lies in the background. And now here too, in the context of copyright, when you live in a world of internet—and again, I myself don’t live so much in the world of the internet, but I already understand what it is. There are people for whom that really is their world; they roam there, and as far as they’re concerned they’re moving around in the world. I haven’t yet reached the stage where I feel that way. But it’s clear to me that there are people for whom that is the world; that’s simply where they live, that’s their space. So all of Jewish law can change. Everything can change. Now here you can understand that the decisors—even though they are not yet the internet generation—already understand the issue of copyright; after all, it’s not what it was a hundred years ago. There is no doubt there is a point here. It’s a very interesting claim. Meaning, how did you turn something non-tangible into something that can be owned? I understand that you think there has to be ownership over it. Fine. But just because you think there has to be ownership, that’s all right—that’s the desired state. But where does the actual state come from? How do you reach the conclusion that there really is ownership?

[Speaker D] Regarding a website as like land, then say if someone owes me rent for a website, would that be exempt from an oath like rent on land is exempt from an oath?

[Rabbi Michael Abraham] No, because with land I assume part of the idea is that it’s not movable. With a website?

[Speaker D] And slaves too are compared to land.

[Rabbi Michael Abraham] Slaves are compared to land, and that really raises the question what the underlying idea is, but the basic thing is land. Documents are compared there to it too. But the basic law is about land. Slaves are compared to land. And land—part of it is that it’s immovable. And there really are laws about land that don’t exist regarding a slave, because a slave, though compared to land, is movable land. And there are things that require fixed land, not just land in general. So maybe with a website you could apply laws of land, but not laws of fixed land. So there is room to examine that. For example, one who transfers a slave by placing the bill of divorce in the hand of the slave, if the slave is bound—then it’s a bound slave. Even though a slave is compared to land, provided he is bound. Bound and even asleep. So the claim I want to make is the following. I said: the lightbulb went on for me with Chaim Sha’al of Rabbi Chaim Palagi. The topic of deception appears in tractate Chullin. And the sugya there brings several cases of deception, but in total there are only two types of cases. Each type has several examples, but there are two types. One type is situations where, say, a guest comes to you, you open a new barrel of wine and say to him, “I opened a new barrel in your honor.” That’s costly, because once the barrel is opened, the wine stops being preserved. That means you’re honoring him greatly. When in truth, you had planned to open that barrel anyway; you didn’t do it for him. That’s deception. Okay? That’s one example of deception. One type of examples is basically fooling someone. Rashi explains that the point is that you receive gratitude you don’t deserve. That’s the definition of deception according to Rashi there, and all the decisors later copy Rashi’s words. And somehow it became standard that the term deception means stealing gratitude—receiving gratitude you don’t deserve. A second kind of deception there in the Talmud belongs to the laws of buying and selling. Say you sell a person a car. If you sell him the car at a price more than one-sixth above market price, that’s overcharging. But if you sell him the car, and there’s no problem with the price, but you didn’t disclose a relevant detail about the car—for example, you sold him a car without an engine. A fairly relevant detail in a car, that it has no engine. But the price is the price of a car without an engine. Meaning, you didn’t take too high a price. Okay? Then there are no laws of overcharging here. The sale doesn’t get reversed under the laws of overcharging, but there is deception here.

[Speaker D] Why isn’t that a mistaken transaction?

[Rabbi Michael Abraham] It’s not a mistaken transaction because I think you can regard it as monetary value. So you want me to return the money to you?

[Speaker G] I returned it—here’s the car. That’s the equivalent value I’m returning to you.

[Speaker D] Ah, so the sale is not voided—then why, what is the deception here? The sale is void.

[Rabbi Michael Abraham] What, the car will stay with you? I’m not taking it. I’m not returning your money; the car is the money. The car has monetary value, so I’m leaving it with you as equivalent value, not as the merchandise you bought.

[Speaker D] If it’s not a case where the sale is reversed, so it needs to—

[Rabbi Michael Abraham] If the sale is reversed, I’m leaving it with you as equivalent value. It’s my car; now I’m paying it to you.

[Speaker D] I’m not obligated to accept a car.

[Rabbi Michael Abraham] Why not? Of course you are; equivalent value is like money. I decide what I pay, not you.

[Speaker E] It’s not worth it for you that he return the money to you; that’s what it’s worth on the market today.

[Rabbi Michael Abraham] According to the Talmud’s view, equivalent value is like money. Okay? Except that it depends—damages are paid from the best quality. Now “best quality,” the Talmud says on page 9 in Bava Kamma, is either land or cash, because cash is liquid and can do everything, so that too is considered best quality. But a creditor is paid not from best quality but from middle-quality property. Middle-quality can also be equivalent value; equivalent value is like money. By the way, even regarding best quality the Talmud basically says equivalent value is like money—sorry, even regarding best quality it says equivalent value is like money. Certainly when someone pays with middle-quality property, and for a woman’s marriage settlement it is inferior quality property—then all the more so, you can pay with equivalent value. You can’t tell me what to pay. Again, if it’s a deposit I have to return your actual deposit, of course. But if I owe you money, I can repay you with equivalent value too. So in what respect—

[Speaker B] That’s the ancient version of people today paying in ten-agorot coins. What? It’s the ancient version of people paying today in tiny coins.

[Rabbi Michael Abraham] Okay, that’s not exactly equivalent value—

[Speaker E] Because a thousand shekels in tiny coins is in practice worth less—

[Rabbi Michael Abraham] than a thousand shekels, because of the costs of hauling it and depositing it in the bank.

[Speaker B] Okay, so I don’t know, the question is—

[Rabbi Michael Abraham] whether hauling costs are indirect damage or not—there’s room to deliberate.

[Speaker B] Why also that—if you pay me in gasoline, if someone owed me money and suddenly repaid me with a car that I have no use for—

[Rabbi Michael Abraham] Assuming that not—

[Speaker B] But now I have to start advertising and finding people and dealing with lawyers. That’s the same problem as the thousand shekels in all those coins.

[Rabbi Michael Abraham] That’s the problem with the thousand shekels. Right.

[Speaker B] And that’s what I said, like the concept of a thousand shekels in tiny change.

[Rabbi Michael Abraham] In any case, the second type of deception that appears in Chullin is deception in buying and selling. I sell you a car, a car without an engine, at the price appropriate for a car without an engine, but I didn’t reveal a relevant detail. And here of course it has nothing at all to do with gratitude. So if I received gratitude unjustly, how does that fit the definition of gratitude? In Maimonides these laws go to different places. Gratitude of the first sort appears in the Laws of Character Traits, because it’s a matter of personal traits, while the deception of the second sort appears in the Laws of Sale. But the Talmud links the two things. And deception, by the way, is prohibited even against a gentile according to most opinions, and it is a Torah prohibition. The Ritva writes that it is a Torah prohibition; that is, most of the medieval authorities say it is a Torah prohibition, and it is forbidden even with regard to a gentile. Even according to the one who says theft from a gentile is permitted, deception is forbidden by Torah law even against a gentile.

[Speaker D] What about deception in betrothal? There—does it count as a mistaken transaction so that the betrothal is void, or is it considered deception, so the betrothal remains valid and you just committed the prohibition of stealing the woman’s understanding?

[Rabbi Michael Abraham] Mistaken transaction. It’s a mistaken transaction, not deception.

[Speaker D] Say you’re saying I concealed—like the car where I didn’t say it had no engine—so say I’m marrying off a couple and one side conceals some item of information.

[Rabbi Michael Abraham] No, a person is not equivalent value. Equivalent value is like money because if you sell it elsewhere you’re in the same position. Here not so. She is married to him and not married to someone else; she didn’t want him, he’s ill—

[Speaker D] So there it’s not a matter—

[Rabbi Michael Abraham] of deception but of mistaken transaction, and it is reversed. Yes. In any case, and there’s also no price—betrothal is always done with a perutah, so there’s no way to compare the price to the merchandise. Once the merchandise is not the merchandise you wanted, it’s a mistaken transaction, end of story. My claim was basically this: what do these two things have in common? In both of them, I deceived someone, right? It’s deceit. And indeed in common jargon deception is understood as a synonym for fraud and lying. But clearly it’s not right to identify those two things. If someone asks me how old I am and I tell him nineteen, I lied to him. Did I steal his mind? No, I didn’t deceive him—even if he didn’t notice, even if he doesn’t see that it isn’t true, that’s still not called deception. In my view, deception is where I lie to someone and in so doing withhold from him information that he is entitled to know. That is called deception. And if, for example, someone is a guest in my home and I open a new barrel of wine for him, on the face of it he isn’t entitled to know anything. Rashi says: since he gives me gratitude for it, then yes, he is entitled to know whether I really opened a new barrel for him or not, because in exchange for that information he is giving gratitude. That’s Rashi’s novelty with gratitude. But the basis of deception is not taking gratitude from someone when it isn’t due. Gratitude only explains why the information is information he is entitled to. And now, if you withhold from me information that I am entitled to, you stole the information from me. “Stealing the mind” is the literal translation: you steal information from me. When do I steal information from someone? When that information is due to him; in some sense it is his. So if I take that information from him, that is deception. That’s my claim. And I think that is the common denominator of both kinds of deception that appear in the sugya in Chullin. Because also when you buy a car from me without an engine, you are entitled to know what you bought. And if I don’t give you that information, apart from whether I cheated you monetarily, that’s deception. I stole information from you that was really due to you. In contrast, if you ask me how old I am and I tell you nineteen—you aren’t entitled to know how old I am. Do I owe you something? I owe you nothing. So it isn’t nice to lie; it’s a lie, fine—but it’s not deception. I didn’t steal anything from you, because it wasn’t yours. That information is not your information, and if I took it from you or hid it from you, that isn’t called stealing it, because it isn’t information that belongs to you. In the case of the new barrel, the information is due to him because he gives me gratitude—

[Speaker C] gratitude.

[Rabbi Michael Abraham] That’s what Rashi says; that’s Rashi’s novelty. Yes. Because he gives me gratitude for it.

[Speaker C] If now I brought someone a bar mitzvah gift—a gift, a set of books worth five hundred shekels, and I got it for three hundred shekels—did I deceive him?

[Rabbi Michael Abraham] Deceive him?

[Speaker B] His mind wasn’t stolen.

[Speaker C] I could have given him a gift worth five hundred shekels, so therefore—

[Rabbi Michael Abraham] What if you didn’t tell him it was six hundred? I think even if you didn’t say anything. It seems to me, seems to me—but that still needs checking.

[Speaker C] What, do I owe him something? What, I’m giving him a gift.

[Rabbi Michael Abraham] Wait. Gratitude—you’re giving an expensive gift, five hundred shekels. Later, when he returns the favor at your bar mitzvah, he’ll give you back a five-hundred-shekel gift. Usually there’s some accepted reciprocity.

[Speaker B] Then it turns out you got him.

[Rabbi Michael Abraham] Maybe yes, maybe no, but you gave him that possibility.

[Speaker B] What, someone who gives a gift has to say how much he bought it for?

[Rabbi Michael Abraham] No, but if it appears to be something expensive and in fact it wasn’t expensive, that’s what needs examination. Otherwise, no, you don’t need to tell him every time how much you paid. He can check himself. But if he checks himself—

[Speaker B] he won’t know how much you paid.

[Rabbi Michael Abraham] Exactly. So if the item is expensive in itself, and therefore his checking won’t reveal the result, then you need to tell him that you got it cheaply. Again, if you say nothing at all—let’s say I can wager there will be decisors who say you don’t need to. But it’s not certain. From the plain meaning of the Talmud, apparently you receive gratitude from him and you withhold information from him. According to Rashi? Yes. No, I’m saying from the plain meaning of the Talmud—and all the decisors bring this Rashi.

[Speaker B] No, but like what you’re saying—therefore you take gratitude from him—if—

[Rabbi Michael Abraham] he gives—

[Speaker B] you a gift in the same amount, then maybe it’s not called taking. It could be it’s not called taking.

[Rabbi Michael Abraham] Okay. In any case, that’s the claim. So what does that mean? What I tried to argue as a result is that this concept of deception is really the source from which one can reach the conclusion I presented earlier: that there is ownership of information. Because if there were no ownership of information, how could you steal it? When you steal information from someone, that basically means the information belongs to him. Now yes—so I encountered this in Chaim Sha’al of Rabbi Chaim Palagi, where he says that when you open someone else’s letter without permission, you violate deception—which Rakover told me was some baffling midrash. It’s simple now. To me too it now seems—yes, you steal information from him that belongs to him. The letter is addressed to him; it’s his letter. You are not supposed to see that information—

[Speaker D] You steal the information from him.

[Rabbi Michael Abraham] Now what does “steal” mean? After all, the information is still with him; he’ll get the letter. It’s just that now you know it too. And about that I brought a Talmudic passage: the Talmud in Sanhedrin says that on the day of Rabbi Eliezer’s death, his students came to visit him. He had been under excommunication since the story of the oven of Akhnai. And it says there that he complained: why didn’t you come ask me questions of Jewish law? After all, Rabbi Eliezer was “a plastered cistern that does not lose a drop.” And among other things he says there:

[Speaker E] A lot—

[Rabbi Michael Abraham] “I learned much Torah and I taught much Torah, and I learned much Torah and I took away from my teachers no more than a dog lapping from the sea, and I taught much Torah and my students took away from me no more than a paintbrush from a tube.” Like a brush taking from a paint box, from a bowl of paint. Now the obvious question, of course, is this: when you learn something from someone, what do you take away from him? What, did he lose the information—like the stories about the rebbe who buys the melody from the shepherd and then the shepherd forgets it? That would mean I took something away from him. But here what’s the problem? The information remains with him. The fact that I took the information—that I learned something from him—doesn’t diminish him. Rashi there indeed writes—I think he means what I’m saying, though I don’t remember that Rashi exactly. I claim that ownership of information—information has value when it is unique, right? If everyone has the information, then it is worth less. Therefore, depriving someone of the uniqueness of information is called taking the information from him.

[Speaker D] Is there double payment on that? Double-payment penalty? I don’t think so.

[Rabbi Michael Abraham] I don’t know, I’m not—

[Speaker G] familiar with a source for that.

[Rabbi Michael Abraham] In any case, the claim is that regarding deception in any area, nowhere is it mentioned that you have to pay. That’s a new idea that would emerge in our context. Because today, information really has become something that is traded, and then compensation starts to become relevant; maybe we would even discuss double payment. But there, you can only see the basic idea—that there can be ownership over information, and the value of the information depends on how unique it is. And if you reveal someone’s secret, you disclose it to others, then you stole information from him, even though the information remains with him. It remains with him, but it is no longer unique. The beneficiary says: this is my information, I

[Speaker E] created it; it’s like a book that says it’s forbidden to copy it.

[Rabbi Michael Abraham] Unique doesn’t always mean that only he alone has it. He can say: I’m selling this only to two people, I want there to be three. That’s my uniqueness, after all, I’m the owner. I can determine what scope of people knowing it I am willing to allow. Don’t take it to a fourth person; I want three.

[Speaker E] No, but you can take this book and give it to your friend and to a sixth and a seventh person to read.

[Rabbi Michael Abraham] If he permits it, then you can.

[Speaker E] Right, but you’re not allowed to quote from it, to take a quotation and publish it on the internet.

[Rabbi Michael Abraham] So I’m saying again, it’s all a question of definitions, and it’s all a question of—no—if it really doesn’t fit into that definition, you won’t be able to find a source for it in Jewish law; then it really would not be forbidden from the standpoint of Jewish law, that’s the claim. But clearly that isn’t enough, because today it has already become something of value, something people pay for and buy and so on. Therefore, you can’t escape the fact that information, and the digital perspective we have today, project onto the way we shape Jewish law.