Platonism – Lecture 11

Table of Contents

• Teleological reasoning versus causal reasoning in Jewish law
• Returning a lost object, despair, and the Maharal
• Halakhic distress over intellectual property versus freedom in legal design
• Platonism in Jewish law, legal convention, and rabbinic enactments
• Maimonides, Laws of Sale 22, and the basis for the difficulty with intellectual property
• Defining intellectual property as information and the implications of the absence of ownership
• Halakhic solutions that bypass ownership, and the difficulty with “moral rights”
• Halakhic decisors who argue from the “simple logic” of ownership, and the critique of that approach
• A restrictive reading of Maimonides: not “abstract” but “not a thing”
• Rabbi Chaim Palagi, the ban of Rabbeinu Gershom, and “deception” as theft of information
• Rabbi Eliezer, information that does not physically diminish, and the value of exclusivity
• Intellectual property, DNA, discovery versus creation, and ownership of information
• The distress as evidence of Platonism and the halakhic “gymnastics”
• Debt, value, money, and ownership of the abstract
• Morality and Jewish law, dina de-malkhuta dina, and metaphysical intuition

Summary

General Overview

The speaker uses the topics of returning lost property and intellectual property to show that halakhic reasoning operates causally, in the mode of “because” and “due to,” rather than teleologically, in the mode of “in order to” and “for the sake of,” which is common in ordinary legal thinking. He presents a recurring halakhic difficulty in which shared moral values exist both in Jewish law and in secular law, yet in Jewish law it is hard to shape the law according to those goals because halakhah is constrained by perceived property facts. He connects this to a Platonic dimension in Jewish law, involving “imposed” facts and ideas that do not depend on the legislator’s choice, and shows how the difficulty of grounding intellectual property is both a Platonic problem and may also lead to a possible Platonic solution: ownership of information as a real entity.

Teleological reasoning versus causal reasoning in Jewish law

The speaker argues that in ordinary legal thinking, laws are designed in order to serve goals, so the reasoning is “in order to” and “for the sake of,” with an objective guiding the law. He claims that in halakhah, the reasoning is causal, meaning that the law is determined “because” of certain facts that bind the system, and from there the laws of property, returning lost objects, and intellectual property are derived. He says halakhah works this way even when it is obvious that those facts do not lead to a just solution, because the halakhic plane deals with the question of property facts, not the question of justice.

Returning a lost object, despair, and the Maharal

The speaker cites the Maharal, who says that it is obvious to everyone that even after the loser has despaired, morality says the lost object should still be returned, and therefore from a moral standpoint despair has no significance. He argues that in halakhah there is an assumption that if the person has despaired, his ownership of the object has lapsed, and therefore there is no duty to return it. So the discussion is not “is this just or moral,” but factual: is it his or not his. He suggests a possible explanation of despair as related to emotional anguish, but says that this does not withstand the test of the sources, and he brings up “despair without awareness” to stress that the halakhic question revolves around factual status, not frustration.

Halakhic distress over intellectual property versus freedom in legal design

The speaker says that in the legal world there is no distress, because “you decide whatever you want,” and intellectual property laws are designed according to goals. In the halakhic world, he says, there is a strong tone of distress because people want to protect creators’ rights but “can’t manage to” because of the limitations imposed by the property facts of halakhic law, and so “my hands are tied.” He points out that this distress actually exposes rigidity and lack of flexibility in halakhah, contrary to its image as flexible, and stresses that the need for solutions such as rabbinic enactments does not cancel the question of why there is distress in the first place.

Platonism in Jewish law, legal convention, and rabbinic enactments

The speaker argues that the distress reflects a “Platonic dimension” in halakhah, in which there are Platonic facts in the world that do not depend on human beings and therefore are not “in my hands.” He contrasts this with a non-Platonic view in which law is a convention of the legislator that can be shaped however he wants, and he compares this to Aristotle in the Categories. He responds to a question about a law given to Moses at Sinai and argues that this is a fact that looks like “a fan” rather than a tradition, and that the Sages “saw the ideas” the way one sees reality. He adds that “Aristotelians also see” but deny it because of philosophical rationalization, and he compares this to the debate over whether divisions into categories in the world are imposed or arbitrary. He connects this to a theme according to which rabbinic laws are “not in the object but in the person,” because only the Holy One, blessed be He, “can create the world,” while the Sages enact rules of behavior that do not alter ideal reality, whereas Torah-level laws are perceived as imposed upon the object itself.

Maimonides, Laws of Sale 22, and the basis for the difficulty with intellectual property

The speaker quotes Maimonides, Laws of Sale, chapter 22: “A person cannot transfer ownership, neither by sale nor by gift, except of something that has substance… A person cannot transfer ownership of the smell of this apple, or the taste of this honey, or the appearance of this crystal.” He interprets this to mean that ownership applies only to something tangible, and not to abstract things such as qualities. He says that even when people speak of “ownership of produce,” the accepted understanding is not that there is abstract ownership of usage rights, but rather “ownership of the body for its produce,” always anchored in a tangible object. He distinguishes between “benefit-right” and ownership, and argues that benefit-right is monetary value but “not ownership,” so taking it is not theft but damage that requires compensation rather than restitution.

Defining intellectual property as information and the implications of the absence of ownership

The speaker illustrates intellectual property with a disc containing a song, and clarifies that the discussion is not about stealing the disc as an object, but about “the information engraved on the disc.” He emphasizes that in the computer age one can “take information without taking any tangible thing,” and this is “intellectual property in its purest form.” He argues that the basic problem troubling halakhic decisors is that if information is “something with no substance,” then one cannot own it, and therefore taking it is not theft, which creates the need to determine how to protect it halakhically. He says the value considerations are similar to those of legal scholars, but halakhah cannot simply declare ownership for utilitarian reasons, and so distress arises.

Halakhic solutions that bypass ownership, and the difficulty with “moral rights”

The speaker brings proposed solutions: encroaching on another’s livelihood, trespass, payment for benefit, professional custom, dina de-malkhuta dina, and “you shall do what is upright and good.” He argues that trespass in this context is “a borrowed expression” and not the Torah prohibition of moving a field boundary, and that these solutions generally protect livelihood or create an obligation to pay and compensate, but do not establish ownership over the creation itself. He stresses that “moral rights” in law, which require attribution to the creator, are the “most refined” part of ownership because they do not depend on money, and are therefore especially hard to protect halakhically when the solutions bypass the concept of property. He raises the possibility that there is no halakhic “essence” of intellectual property and that the halakhic truth is simply “there is no ownership,” even if that conflicts with intuition.

Halakhic decisors who argue from the “simple logic” of ownership, and the critique of that approach

The speaker describes halakhic decisors who say that it is “simple logic” that a person has ownership over his creations, and who even speak in terms of theft. He mentions collections such as those of Rabbi Dayan Cohen of Netanya, as well as attributions to things said in the name of Rabbi Elyashiv and perhaps Rabbi Wosner. He quotes Rabbi Shimon Shkop, who argues that “even the gentiles recognize this,” and asks, “shall our complete Torah not be like the law of the gentiles?” He explains that the claim rests on the indication that every reasonable person understands that this is how one ought to act. He notes that these statements are seen as strange and are criticized because Maimonides and halakhah seemingly indicate that there is no ownership over an abstract thing.

A restrictive reading of Maimonides: not “abstract” but “not a thing”

The speaker presents his argument that Maimonides does not imply that there is no ownership of abstract things, but rather that there is no ownership of what is not a “thing” at all, but merely a “property.” He emphasizes that in Maimonides the examples are smell, taste, and appearance, which are always properties of an object, and he compares this to a car’s speed or color as properties rather than substances. He argues that ownership of the substance “drags along” ownership of its properties, so it makes no sense to transfer ownership of a property by itself. But, he says, it may be that an “abstract substance” that is not a property of something else could be an object of ownership. He again connects this to Platonism and argues that intellectual property may be possible once one recognizes information as an abstract “something” rather than a conventional fiction.

Rabbi Chaim Palagi, the ban of Rabbeinu Gershom, and “deception” as theft of information

The speaker brings a responsum of Rabbi Chaim Palagi concerning the ban of Rabbeinu Gershom against opening a letter, and argues that in his view the ban did not create a prohibition but strengthened an existing Torah prohibition of “deception.” Based on that, he interprets “deception” literally as theft of information, and shows that in the Talmudic passage in Hullin the examples divide into two contexts: laws of character and conduct, such as inviting someone to a meal when it is obvious he will not come, and laws of sale, such as concealing a defect in merchandise. He explains that the common denominator is withholding information “that is coming to you,” and distinguishes between a lie that is not deception, such as lying about one’s age when the other person has no right to that information, and deception, which is taking information that belongs, or is due, to someone else. He places this on a spectrum in which theft stands between lying and robbery, and argues that deception “belongs to the worlds of theft,” not to the worlds of falsehood.

Rabbi Eliezer, information that does not physically diminish, and the value of exclusivity

The speaker brings an aggadic passage in Sanhedrin about the day of Rabbi Eliezer’s death, where he said, “I learned much Torah… and I did not diminish from my teachers even as much as a dog lapping from the sea.” He proposes a reading according to which taking information can be considered diminution even if the information remains with the source. He argues that the value of information depends on exclusivity, so when information becomes common property it loses its value as an economic asset, and in that sense to “take” information means to damage its exclusivity. He compares this to “a candle for one is a candle for a hundred,” and argues that for information there is no such rule in terms of value, so one can understand why harming information can be described in terms of theft.

Intellectual property, DNA, discovery versus creation, and ownership of information

The speaker expands that seeing information as an object also makes it possible to speak of ownership of DNA as information belonging to a person in the context of medical ethics, even though the information was not “created” by the person but by the Holy One, blessed be He. He compares this to the claim that Einstein “discovered” relativity rather than “invented” it, and argues that one can in principle claim ownership even over information that was discovered rather than created. He says that in the current age it is easier to relate to information as an asset that people speak about every day in terms of ownership, and he stresses that this is what makes possible a halakhic way out that creates intellectual property in the full sense of actual ownership.

The distress as evidence of Platonism and the halakhic “gymnastics”

The speaker concludes that the need for “very powerful intellectual gymnastics” in order to generate intellectual property in halakhah is an indication of a distress that does not exist in the legal world. He argues that the distress itself shows that without “a metaphysical source” there is no ownership in halakhah, and the solution he proposes is based on a metaphysical source in which information is “a kind of something” that can be owned. He says that both the question and the solution have a Platonic character, whereas in the legal world the move from goals to the shaping of law is made directly, without helplessness.

Debt, value, money, and ownership of the abstract

The speaker is asked about debt and benefit-right, and replies that benefit-right is not ownership but monetary value. He argues that debt is connected to ownership of “the concept of value,” and that money is a tangible representation of abstract value that exists even before money, and one can own value. He presents a distinction in Maimonides between “betrothal cannot be effected with a loan” and the possibility of betrothal with “store credit,” and explains that in his view a loan is a gift and the obligation to repay is a commandment, whereas in store credit the borrower has “value that is mine.” He argues that money in the bank is a deposit of value and not a loan, and from here he criticizes discussions of bank interest that do not distinguish between a deposit and a loan.

Morality and Jewish law, dina de-malkhuta dina, and metaphysical intuition

The speaker is asked why one should seek a halakhic foundation for copyright if one can rely on state law, and he responds that the moral motivation exists but is not the central theoretical issue. He says that the tension between halakhah and morality does not trouble him on the philosophical level, even if it does trouble him practically, and that the moral problem can be solved through dina de-malkhuta dina, trespass, and payment for benefit. He argues that his drive is metaphysical-halakhic: “it cannot be that there is no ownership of information,” because he feels there is a real object here, and therefore he identifies this as a Platonic intuition rather than a moral decision.

Last time, at the end of the previous session, I only presented the framework of the discussion about intellectual property, and I said that I want to use the topic of intellectual property similarly to what I did with returning lost property. In both of these topics, I wanted to show that the form of halakhic argument or reasoning is actually different from what is accepted in ordinary legal thinking. In ordinary legal thinking, the reasoning is teleological. Meaning, I shape the laws of returning lost property, or intellectual property, or property law in general, in order to serve certain goals. In other words, the law will be such-and-such in order to achieve such-and-such. The key words are “in order to” or “for the sake of.” So the reasoning is goal-based, target-based. In Jewish law, the reasoning is causal. That is, the law is such because—not “in order to,” but rather “because” or “due to.” In other words, Jewish law is subject to a certain set of facts, yes, facts that are imposed upon it, and from that it derives the laws of ownership, returning lost property, intellectual property, and the like. And this happens even in places where it is clear that those facts imposed upon us do not lead to a just solution. I quoted the Maharal, if you remember, who discusses the laws of returning lost property and says that everyone understands that even after the loser has despaired of recovering his lost item, morality says you should return it to him. He worked for it; it’s his; I just found it—why not give the person back what belongs to him? Therefore, from the standpoint of morality and justice and so on, it is obvious that despair has no significance. No significance at all, as they say. Meaning, the obligation to return the lost item is not dependent on morality; it is not dependent on the question of who the owner is in some theoretical sense. If it was his, he worked for it—give it back. What difference does it make whether he despaired or not? From the halakhic standpoint, there is some assumption that says that if a person despaired, then his ownership of the object has lapsed, and therefore there is no obligation to return it to him. We are not discussing this on the plane of what is just or moral; we are discussing it on the plane of facts: is it his or not his? And the facts underlying property law in this context are the facts. They are not subject to goals of justice or morality; they stand on their own. On the contrary, property determines the laws of returning lost property, and not the goal of returning lost property that determines the laws of ownership. Rabbi, maybe with regard to Jewish law concerning lost property too, perhaps here as well the consideration is moral. If the purpose is to prevent the anguish of the owner, when he suddenly sees that his property is in someone else’s hands, then if a person has not despaired, his heart hurts, but if he has already put it out of his mind… That’s an interesting suggestion. I don’t think it survives the test of the halakhic sources. One thing that occurs to me now, for example, is unconscious despair—despair without knowledge. The whole discussion of despair without knowledge is a situation where the person has, as it were, despaired implicitly, not in practice; he doesn’t even know that the item was lost. In such a case it is clear that when he discovers it, the frustration is there, and therefore I would have expected the first argument to be: what do you mean—there’s no frustration, so what’s the problem? Take it, do whatever you want, there’s no frustration. But that’s not the question. The question is whether there is potential despair or not. In short, everything revolves around the facts. Fine, that’s another discussion. So what I want to say is the same thing with regard to intellectual property, and I did this briefly in the previous class. I’m muting here because there are noises. I did it briefly at the end of the previous session just so the framework would be built. And what I said was that in the laws of intellectual property too, you can see a difference between the accepted modes of reasoning in the legal world and the reasoning that appears in the halakhic world. In the legal world, the laws of intellectual property are shaped in order to achieve goals—various goals, we’ll see that in more detail shortly. In the halakhic world, the laws of intellectual property want, but fail, to base themselves on causes, and therefore there is a very strong feeling of distress in the halakhic world that you will not find in the legal world. In the legal world there is no distress at all. You decide whatever you want—what’s the problem? In the halakhic world there is distress because there is tension between what I would like to be the case and what I am able to do. In other words, it seems my hands are tied. I also think it is proper to protect a person’s rights in his creation, because that will advance humanity—it doesn’t matter, for various reasons. In that sense, obviously this bothers halakhic decisors just as it bothers jurists in any legal system. But unlike other legal systems, which say: fine, if that’s what I want, no problem—then let’s determine that the creator has a right to his creation. Everything is fine; there is no problem; there is no distress there. It’s a question of what should be done, you reach a conclusion, and that’s what you do. In the halakhic world there is a very strong message of distress. We desperately want to give the creator possession or ownership of his creation, but we cannot manage it; our hands are tied. Why? Because the facts of property law say that in such a case there is no ownership. So what can I do? I really want to. Again, as in the laws of returning lost property: the goals or values—justice, morality, and so on—are completely shared. Meaning, in Jewish law too, the same considerations exist as in the legal world. But in the legal world, they move directly from those considerations to shaping the law itself. No problem—if those are the considerations, let’s shape the law so that it reflects them. In the halakhic world, those are indeed the considerations, but we cannot implement them. We cannot act in a way that will lead us to the goals that we ourselves want to reach. As opposed to that, isn’t this precisely a place where there is legitimacy and room for a rabbinic enactment? To start taking the issue and advancing it? Those are the solutions people find—they really do make rabbinic enactments. I’m talking about the question why there is a need for that in the first place, why there is some distress in the background. Obviously that’s exactly what they do there. But why is there any distress at all? The distress exists, and the expressions of distress are very strong; I think they are very illuminating. Now notice: many times people accuse halakhic decisors, or Jewish law itself, of basically doing whatever they want. Fine, you can say this, you can say that; you see that it depends on worldview. If someone has this worldview, you can expect him to rule this way; if someone has a different worldview, he’ll rule differently. Suddenly here we see a kind of rigidity: the decisors really want to do something, but they do not actually succeed or are unable to do it. In other words, contrary to the very, very flexible image of Jewish law—or at least sometimes there is a very flexible image of Jewish law, and many times people accuse decisors of not being flexible enough because Jewish law does allow flexibility—here, in this case, I am pointing to a very fundamental characteristic of Jewish law, in contrast to other legal systems, namely lack of flexibility. And in that sense, this seemingly looks surprising. And precisely because of that, I think it teaches more than anything about the Platonic dimension in Jewish law; that is how it connects to our series. Because basically what this means is that there are some Platonic facts that exist in the world and do not depend on me—I do not create them. This is not Aristotle. In other words, they are not in my hands; they are imposed on me. And now I conduct myself according to those Platonic ideas or facts, and that’s it, there’s nothing I can do. Even though I would really like it to be otherwise, it’s not something I can make happen, because I am bound by the facts. To look at the legal system as a kind of facts—that is Platonism. As opposed to the non-Platonic conceptions—I’ll give them a name later in the context of law—where law is in our hands. Meaning, it’s a convention, like the way Aristotle understands the categories. It’s a convention. In other words, we decide that the law will be such-and-such, and then the law will be such-and-such. It’s in our hands. Whatever we formulate is what will be. “We” meaning the legislator, not the judge, yes? So the legislator allows himself to shape the law according to what seems right to him. So I’ll begin now—that’s the framework. That’s why it was important for me to discuss intellectual property and the laws of returning lost property. Rabbi, this Platonism that the Rabbi is talking about—what is it? Is it a law given to Moses at Sinai? Do we know for certain that the Sages knew, that they received by a law given to Moses at Sinai, Platonism and not Aristotelianism? It can’t be a law given to Moses at Sinai. Obviously not. So that’s why I’m saying: how did they know it? How did they know there is…? After all, how do you know there is a fan in front of you? No, but when the Sages came to interpret the Torah and discuss it, if they had decided to choose the Aristotelian approach and not the Platonic one, everything would have looked different. Again, it’s not a matter of choice. They were Platonists. They simply understood that… this is reality. It’s a fact. It has nothing to do with a law given to Moses at Sinai. It’s a fact, like the fact that there’s a fan here. They saw the ideas and acted accordingly. How did they know it? They saw. Like how do I know there’s a fan here? I see it. They saw ownership; they saw ownership hovering there, marriage hovering there. Right. I’ll tell you more than that. I claim that the Aristotelians also see it. You see it and I see it. But what happens is that we rationalize it afterward. We say, wait—but there is no such thing as a fact of ownership. What fact of ownership? What fact is there here? It doesn’t occupy space, it has no mass. It doesn’t look to us like a fact the way a physical fact is a fact. And therefore we deny what we see. In my view, almost everyone sees it. What we call intuition. Our intuition tells us something on this issue. It’s just that many people rationalize it and say: wait a second, that can’t be. This is something built into us, but it can’t be that we really see here something that is a fact. There are no such facts. We are not Platonists. And therefore, this is exactly what I gave in the introduction about the struggle between Plato and Aristotle. I think everyone understands that the divisions of categories in the natural world, in the scientific world—the divisions of categories are not our divisions. They are in the world. Why do many people deny that, at least consciously, even though unconsciously many people admit it? Because philosophically they disagree with it. They see it exactly like me and like Plato. But philosophically they disagree with it. Because what do you mean? Obviously this is just a definition. The fact that you define all kinds of dogs as dogs—that’s a definition. Why not define some of them as foxes? Draw the line between the groups differently. You decide where to draw the line. Or wolves—that’s more accurate. Why draw the line differently? You decide where to draw the line. Not true. I do not decide where to draw the line. The line is imposed on me. I see that there is a line there. Okay? If that seems immoral to you, and you really want to create a different line, then create a different world. What happened? Create a different world when you become the Holy One, blessed be He. I cannot create a world in which there is no fan in front of me when there is a fan in front of me. I can make a rabbinic enactment. That’s what people do. But I cannot change reality. Reality is reality. That is exactly the point. Meaning, there is here some sense of helplessness or distress, which reflects very strongly the Platonic outlook that reigns here. As if there are some facts here that we are—again—subject to, in principle. We do have the possibility of making rabbinic enactments, and in that sense changing the world in some way. But this connects to things we saw—I don’t remember if we saw them here; no, we didn’t see them here. But it’s also connected here: the common theme that rabbinic laws apply to the person, not to the object itself. And the reason for that is that people understand that only the Holy One, blessed be He, can create the world. The Sages can make a rabbinic enactment, and those enactments do not change reality itself. They do not touch the world of Platonic ideas. They only establish Aristotelian behavioral rules for human beings. Behavioral rules that have no basis in external, objective reality, but that obligate us because such is the law. But that is not a fact. And Torah-level laws are perceived as laws applying to the object itself. What does that mean? It means there are some facts here imposed on me. These are not floating rules of conduct—just rules of conduct that could have been determined this way or that way. No, they could not have been determined this way or that way. We determine them because this is the truth, this is reality. These are the facts. And if you don’t like it—if you really don’t like it—I’ll make rabbinic enactments, and somehow exempt myself from going according to the facts. That still does not change the facts. But it exempts me from following the facts. The facts themselves cannot be changed. But the facts also spare me a great deal of agonizing. Because I say: what can I do? It’s not moral, it’s not fair, but these are the facts, there’s nothing to be done. It also spares me the need to decide; it frees me of responsibility. I am the mirror of the world. The world looks like this. What’s the question? No, so I’m saying, you can also formulate this Platonism in a very problematic way. I don’t see anything problematic. If you think it exempts me, I don’t think like you at all. But even if you think it exempts me, that is the truth. What can you do? It also exempts me from hesitation over whether there’s a fan in front of me. Why? Because I see it. So is it better to be blind and not see, so that there will be hesitation? What kind of argument is that? If that’s the fact, that’s the fact. Let me share the screen. The point of departure here—I want to flesh out what I’ve said so far in a general way. Maimonides, Laws of Sale, chapter 22: “A person transfers ownership, whether by sale or by gift, only of something that has substance. But something that has no substance cannot be acquired. How so? A person cannot transfer ownership of the smell of this apple, or the taste of this honey, or the appearance of this crystal, and similarly anything of that sort.” There is a general statement here by Maimonides that ownership can only exist over something that has substance. Over qualities such as smell, taste, appearance—abstract things—there is no ownership. Ownership exists only over tangible things, not over abstract things. Even when we speak about what halakhic terminology calls “ownership of produce rights,” so-called rights of use or something of that sort—which are ostensibly abstract things—in fact, in Jewish law, at least according to the accepted view, there is no such thing as ownership of produce rights. What there is, is ownership of the object for its produce. Meaning, if I have the rights to use a hammer, those are not rights over the uses of the hammer; rather, it is a kind of ownership of the hammer—just not ownership over all aspects of the hammer, only over the possibilities of using it, and not over its body as such; I cannot burn it or make a bonfire out of that hammer. But it always has to be anchored in the object itself, the tangible object. Ownership disconnected from a tangible object does not exist in Jewish law. That is at least how people usually understand this statement of Maimonides, although the statement doesn’t start with Maimonides—it starts in the Talmud, but Maimonides summarizes it in this way. Now, what about the benefit-right in terumah and things like that? Benefit-right is not ownership. It is money-value, but it is not something I own. I cannot transfer a benefit-right to someone else; the acquisition would not take effect. No, but I can sell it; I can betroth a woman with it. No—because it has monetary value. Not because I have ownership. It’s like saying that a woman says: dance before me, and with that I become betrothed to you. When I dance before her—not me, someone who knows how to dance—then that thing has monetary value. You can pay for it, buy a ticket to such a performance. So I betroth her with that monetary value, but that doesn’t mean there is something here that I own. I don’t own my dancing; rather, I gave her pleasure, and by that I transferred to her something of monetary value. So betrothal does not have to be with something that is mine and passes to the woman. Okay, now what difference does it make—if it’s worth money to me, why do I care whether it’s ownership or not? “Why do I care” is a question of reasons. But first of all, the fact is that there is nothing here that I own. I cannot own that thing. Rather, someone can cause me a diminution in the monetary value under my control, and then he has to pay me or compensate me for that—but not because he took something from me. He prevented something from me; he did not take something from me. When you take something from me, there is a duty of return—that is theft. If, say, benefit-right was taken from me, that is not theft but damage. Do you understand the difference? Theft is taking something that belongs to me, and therefore there is a duty to return it. If that thing no longer exists in the world, then one must compensate me with money. But compensation is not the basic obligation; the basic obligation is to return to me what is mine. In benefit-right, when something was taken from me, the basic obligation is not to return anything to me, because nothing was taken from me. It’s damage—someone damaged something of mine. And when someone damages something of mine, he must compensate me for it because it has monetary value. But it is not an object that belongs to me; it is not something that belongs to me; this is not property law in the sense of ownership. This Maimonides is basically the basis that creates the whole problem here in the laws of intellectual property. Because intellectual property is essentially defined as ownership of something abstract. And last time I illustrated what intellectual property is. There is a disc on which a song is burned that I composed, arranged, performed—it doesn’t matter, all those acts created some work of art. Now we are discussing ownership of the work of art. If someone steals my disc, that has nothing at all to do with the question of intellectual property. The disc is a tangible object, and I own it like any other object; if he took my disc, he has to return a disc. Of course, a disc worth twenty agorot, unrelated to the work burned onto it. Okay, the disc. When we talk about intellectual property, we are talking about ownership of the information burned onto the disc, not the disc itself. The information burned onto the disc. When you take the disc and make use of the information in it, my claim against you is not that you took my disc, but that you made use of the information burned onto that disc, and the information is mine, not that the disc is mine. If you could somehow take my information without touching the disc—today it’s very easy for us to understand this; in the past people had to explain this in tremendous detail because it was hard to imagine such a thing. Today there is no problem at all; hackers do it all the time. They take my information without taking anything tangible from me. Everything is fine—they just get in, pull various tricks inside the computer, and take my information. And that is exactly the expression of intellectual property, and here you can’t even get confused. When someone takes a disc, you might get confused and think they took my disc. Of course that is not the discussion there. But when someone takes information stored on my computer without taking anything tangible from me, there is nothing to get confused about. That is intellectual property in the purest sense. And the problem with it, the basic problem that bothers the decisors, is that if the idea or insight—the thing of value that is inside the disc or the computer or whatever—is something without substance, something intangible, it’s an idea, it’s information, then you cannot own that thing. Once you cannot own that thing, then taking it is not theft either. And if taking it is not theft, then the question is: so what is it? Meaning: how can one anchor ownership of intellectual property on the halakhic plane? That is basically the problem that troubles the decisors. And again I say: on the one hand there is this Maimonides, or this law, which ostensibly prevents ownership of intellectual property. On the other hand, fine—so what’s the problem? So there’s no ownership and everything is fine, let’s sail off on our way and whistle a merry tune. No—the decisors are troubled. Why are they troubled? Because they want exactly what jurists want: they too want to protect a person’s right in his creation, in the products of his spirit. Only their distress comes from the fact that we have no way to do it, because there is this Maimonides, this law. Okay, what about “something that causes monetary value is treated as money”? Again, say there is no ownership, but still this counts as monetary loss, like we discussed with benefit-right—it is money. Okay, there are various solutions of that sort that really do try to circumvent the question of ownership. But again, that stems from the fact that ownership cannot exist. In the legal definition there is ownership of intellectual property; you don’t need to get to the laws of damages and so on. There is ownership; you own the intellectual property. Why? Because from the legal standpoint it is convenient for us to define it that way. In the halakhic world we need to find solutions; we are in distress. Now, solutions were found, some of them in the direction you’re suggesting. But I am trying to point out the distress, not the solution. The distress from which the need for these solutions emerges—that is what interests me here. So look: solutions of all kinds were proposed in this matter of intellectual property. Yes, there are those who say it is encroaching on another’s livelihood, or unlawful encroachment, or something like that. But first of all, in unlawful encroachment it is not at all clear that there is a Torah-level prohibition, because the Torah-level prohibition of unlawful encroachment is moving the boundary of your field. Unlawful encroachment in the sense of intellectual property is a borrowed expression; in the simple sense there is no actual Torah-level prohibition of unlawful encroachment here. And by the way, unlawful encroachment also applies only in the Land of Israel, so this is altogether something else—it is a completely borrowed expression; in our context it is at most rabbinic law. But beyond that, encroaching on another’s livelihood and unlawful encroachment in the simple sense do not really deal with the creator’s ownership, but with his right to earn a living. Meaning, this protects professionals so that they can support themselves—like you say, like benefit-right. But if I want to speak of ownership of intellectual property, that cannot be protected here. Fine, maybe there is none—but I’m just pointing out that you still cannot arrive at the concept of intellectual property from here. Some speak of an obligation to pay due to violation of rights under the law of deriving benefit. You benefited, basically. For example, if I entered another person’s field without permission, I must pay him. Why must I pay him? Because I basically derived benefit from his property. Land is not subject to theft, so I did not steal the land from him, but I benefited from the land or the property that is his, and there is such a payment category or cause of action in Jewish law called payment for benefit. You derived benefit from something that is mine, so you have to compensate me or pay me for that. So some want to say that with intellectual property too, that is the case. You did not steal my intellectual property because I am not the owner and you cannot take that ownership, but you made a use of monetary value—a benefit—from property that is mine, and therefore you must pay me. But again, we are talking here about obligations of compensation, not ownership. Okay? You did not take something from me because that thing is not mine. Rather, I have the possibility of using it to make money, and you prevented that from me. So this solution too is very similar to what was suggested here earlier. Therefore this solution too does not lead to intellectual property or copyright, although the practical problem in some cases at least—not in all cases, by the way—in some cases it may perhaps solve. Also, in the background we must remember that when we talk about intellectual property and copyright, we are also talking about moral rights. Moral rights mean that the owner of the work can demand from you, beyond compensation for using the work without permission, that you indicate his name on the work. When you present the work, you must say that I created it. Now here this is not something with direct monetary value, though indirectly maybe it is, because reputation also has monetary value, but this is what in legal jargon is called a moral right. What does that mean? It is not because of financial harm done to me; it is harm to my moral right. Meaning, I created this, and I have the right for this work to bear my name. That is, that people in the world know that I am the one who created this work, regardless of whether money was paid or whether I lost money because of it or not. Here it is no longer a question of whether you compensate me for losses, but it really seems to me, in the substantive sense, to belong to intellectual property. This is mine. It is not a question of whether you caused me losses. And that point is the hardest to defend on the halakhic level. Because on the halakhic level, all the solutions are solutions that bypass the concept of ownership. I am not the owner; perhaps you can compensate me for this reason or that reason, but I am not the owner. Therefore moral rights, I think, are perhaps the purest expression of the concept of ownership, because an obligation of compensation can also be defined without ownership. You can define an obligation of compensation in all sorts of ways. But moral rights indicate that this is mine, and I want my name recognized on the work that I created. That is very difficult to defend through the various halakhic rationales. One could perhaps say that these solutions actually miss the essence. What does “miss the essence” mean? Perhaps there is no essence. When you say they miss the essence, you are already assuming that there is one. And Jewish law says there isn’t. Fine, so that’s the question. Obviously we really want there to be a solution to the problem, but perhaps the halakhic truth is that there is no solution, and indeed there is no ownership. So it’s not missing the essence; there simply is no essence. That is the question. Maybe one or two more examples of the solutions that were found. There are those who speak, of course, about professional custom or the law of the land. But again, the law of the land is a practical solution; it is a good solution. Because they let the legislator determine what he determines, and Jewish law recognizes de facto what the legislator has determined. So the legislator solved the problem for us. But obviously that does not solve the essential problem. The essential problem is: what would Jewish law say where the legislator is negligent or thinks differently and has not established a right in intellectual property? Does Jewish law have nothing to say about that? According to this collection of solutions, no. It is the legislator’s decision. Therefore it does not really solve the halakhic problem; it can help us on the practical level. There is also “and you shall do what is upright and good,” things of that kind. Maybe just to conclude these examples of the solutions, I’ll suggest the solution that I proposed in Tehumin. But first, a number of decisors say: what do you mean? It is simple logic that a person has ownership over the products of his spirit, over his creations. Simple logic. Therefore it is obvious that he has ownership. That is a very vague statement, and they speak about theft—actual theft. Now, there are books that collect this material. Rabbi Dayan Cohen from Netanya or something—he wrote four volumes, I think, on property law, and one of them is about intellectual property. There he gathers all the references by decisors, including in our own time and so on. You can see there that several decisors—I think Rabbi Elyashiv is brought there, and maybe also Rabbi Wosner, I don’t remember, some major decisors—who said, yes, what do you mean? It is simple logic that a person has ownership over his creation. Now this is a very strange statement, and indeed they were attacked for it, because what do you mean “simple logic”? Maimonides tells us—and again, the law, not Maimonides; Maimonides is only summarizing. The law says there is no ownership over an abstract thing. What do you mean “simple logic”? Rabbi Shimon Shkop says even more than that. He says: what do you mean—even the gentiles recognize this, so should our perfect Torah not be like the law of the gentiles? How can it be that even the gentiles recognize this and we don’t? People go out of their minds over statements of that sort. What do you mean—so let’s just adopt all the gentile rules, since even the gentiles say this, and be done with Jewish law entirely. What kind of argument is that? What stands behind it? Clearly what stands behind it is that the gentiles have hit on something correct here. It is impossible that Jewish law would not recognize such a thing. That does not mean I adopt everything the gentiles say. Rather, the fact that they say it is an indication that every reasonable person understands that this is how one should act. And that does not mean that I will adopt everything the gentiles think. Therefore this accusation is a bit demagogic. But where exactly the line is drawn—still, one can say: what do you mean? Jewish law says there is no ownership over an abstract thing. The gentiles say there is. So throw your intuition in the garbage; apparently it doesn’t work here, it’s not correct. There is an argument here; you cannot dismiss it. So what I wanted to argue—and someone mentioned this in the chat earlier—is that what Maimonides writes does not mean that there is no ownership over abstract things. That is not what Maimonides says. What Maimonides says—look at all his examples. His examples are the appearance of honey, the smell of the apple—wait, here—yes, the smell of the apple, the taste of the honey, or the appearance of the crystal, a nice appearance. What do all these things have in common? What they have in common is that they are not entities but properties. Meaning, the appearance of this, the taste of this, the smell of this—it is always a property of something. There is an object that is tangible, and it has properties. Like the red color of the car, or if you like, the speed of the car. Do I want to own the speed of the car? Is that possible? What does it even mean to own such a thing? The speed of the car is something that exists in the world; physicists measure speed—not only physicists, police officers unfortunately also measure speed. Okay, so you can’t say it is something subjective. Yes, but it is not a thing. It is not something, and therefore you cannot own it. Okay? Notice, I am saying here that this is not because it is abstract. If there were something that was a thing but abstract, perhaps it could be owned. Here the point is that it is not a thing. Not because it is abstract. It simply is not a thing; it is not a substance, it is a property. Even grammatically, to say that this car has a red color—the subject of the sentence is the car. The red color is a predicate. Okay? In other words, it is not an entity; the subject of a sentence is a kind of entity. But here it does not function as the subject of the sentence; it is not an entity. It is a property of a thing. So I think we all understand that you cannot own the speed of the car. What would it mean to own that? It isn’t the kind of thing that is a thing. Now notice: the speed of the car is not something subjective. It is not subjective. When we all measure the speed, we will agree that it has a speed and that the speed is such-and-such. There is nothing subjective here. But some will say: it is abstract, the speed of the car; it is not a tangible substance. I want to argue that that is not the point. It is not because it is abstract, but because it is not a substance at all. Rather, it is a property of a substance. And you cannot own a property of a substance. Why? Because ownership of the substance carries with it ownership of its properties. If I own the apple, then I also own the smell of the apple. You cannot own the smell of the apple when the apple is mine. Because ownership of the properties of a thing follows ownership of the thing. But what would happen if there were an abstract thing that was not a property of some other thing, tangible or intangible, but was itself a substance—just an abstract substance? I claim that such a thing can be owned. Or in other words, what Maimonides wrote is not that there is no ownership over abstract things, but that ownership exists only over things—abstract or not. Whatever is not a thing cannot be owned. That is the claim. And I have proofs for this as well. But I argue that especially in our age it is much easier to understand this, although I think it could have been understood in the past as well. I said that the problems of intellectual property did not arise only in modern times, but they become much sharper in our time, because today, for us, most essential things are intellectual property. Today you go to the grocery store with intellectual property. What people used to tell you—that you can’t go to the grocery with intellectual property, you need tangible things—well, no, today people go to the grocery mostly with intellectual property. The people who have the most—who can have the grocery store come to them rather than go to the grocery—are usually people whose wealth is built on intellectual property. Think Google, Facebook, and so on. So the claim, basically, is that there can be ownership over an abstract object as long as it is an object, a thing. Notice how we arrive here at Platonism. Platonism basically says there is an abstract object here, and I can indeed own it. Now, if you understand intellectual property as merely fictive definitions, conventions, then of course you cannot say what I am saying. But if I claim no—these spiritual insights are a kind of entity, this information is a kind of abstract, Platonic entity, and one can own it. The proof I brought for this was from what was mentioned here earlier—from a responsum of Rabbi Chaim Palaggi. Once, Raz Kober invited me to lead a workshop for lawyers. He used to run these weekends on behalf of the Department of Jewish Law at the Ministry of Justice, and each time different people would come lead the workshops—various judges and lawyers would come from Thursday evening until Saturday night, to study some legal issue very intensively. A pretty intensive Sabbath. So each time there was a different instructor, and once he invited me together with Neal Hendel; we led two groups. And the topic included this issue among other things. He sends sources—he’s a real Yekke, everything is prepared in advance in a booklet—and he sent the booklet that was distributed to all the conference participants to the instructors beforehand for preparation. In that booklet there appeared, among other things, a responsum of Rabbi Chaim Palaggi. That’s how I became acquainted with it. Rabbi Chaim Palaggi argues there—he discusses the ban of Rabbeinu Gershom. He is speaking about the prohibition on opening someone else’s letter. And he claims that the ban of Rabbeinu Gershom did not invent the prohibition. The prohibition is a Torah-level prohibition that already existed earlier. The ban merely imposed a ban on whoever violates the prohibition. Usually we understand that Rabbeinu Gershom invented a prohibition here. And he says no—the Torah-level prohibition already existed; Rabbeinu Gershom merely reinforced it by imposing a ban on whoever violates it. What was the prohibition? He says: the prohibition was stealing another’s mind—geneivat da’at. Geneivat da’at is a Torah-level prohibition, a passage in tractate Hullin, and the Talmud says there that geneivat da’at is prohibited; according to almost all the medieval authorities it is a Torah-level prohibition. What does geneivat da’at mean? Raz Kober said to me in an early conversation: look, this Rabbi Chaim Palaggi is utterly baffling. What does this have to do with geneivat da’at? Geneivat da’at is something from the family of falsehood—when you steal someone’s mind, that is some sort of lie to him. What does that have to do with opening somebody else’s letter and looking at what is written there? What does that have to do with geneivat da’at? And that made the penny drop for me. Why? Because I was preparing that seminar, and that was where the penny dropped, and suddenly I understood that Rabbi Chaim Palaggi intends to interpret the term geneivat da’at literally. Geneivat da’at means stealing information from you. Stealing information from you—geneivat da’at. When I open your letter, inside it there is information that is your information, and when I open the letter I take your information. Therefore it is geneivat da’at. After that I brought proof from the Talmudic passage in Hullin, where geneivat da’at appears in two contexts, and in Maimonides it indeed appears in two different collections of laws. It appears in the Laws of Character Traits—which is good conduct—and in the Laws of Sale. In the Laws of Character Traits, the prohibition appears, all in the same Talmudic passage, but Maimonides splits it into two different places. In the Talmud itself, one example that appears there is that I invite my friend to a meal at my house on the coming Sabbath, but I know that he is actually flying abroad and won’t be here for Sabbath at all. I want to present myself as someone who loves him and invites him and spends money on him for a good meal and so on, while knowing that I will not actually have to make good on that note. He won’t be able to come; he’ll be abroad. That is called geneivat da’at. Because I stole his mind, yes—I tricked him, causing him to think that I seek his welfare and am willing to spend money on him, when that is not the truth. Rashi defines it there as my having stolen his gratitude. He feels gratitude toward me, but unjustly; I was not really willing to invest in him. That is one example. By the way, there are many decisors for whom geneivat da’at means stealing gratitude—that is their definition of the prohibition in light of this Rashi—and in my view that is completely absurd, but that is one example. A second example that appears there in the Talmud is in the laws of sale, and it appears in Maimonides in the Laws of Character Traits, the first example. The second example appears in the Laws of Sale. What happens there? I sell someone a certain object and do not tell him, do not reveal to him, defects in the object. I stole his mind. That too is forbidden; that is geneivat da’at. Now you may ask: what do you mean geneivat da’at? This is a mistaken transaction. The sale doesn’t take effect at all. In geneivat da’at you might say the transaction does take effect but there is a problem of deception or something. But here it’s a mistaken transaction or overreaching or something—the transaction doesn’t stand. So what does this have to do with geneivat da’at? All right, let’s use a sketch by the HaGashash HaHiver—just yesterday they were on Zehu Ze, so let’s use them. In their sketch, yes, there was an engine, with the commandeered car. I sold you a car without an engine. I didn’t tell you there was no engine. But the price was appropriate. I sold it to you very cheaply, at the price of a car without an engine. The only thing is that you thought you found a bargain, while in truth it was simply the price of a car without an engine. So there is no law of overreaching, because the price you paid was a fair price relative to the merchandise you received. So there is no overreaching in the sense that the sale is voided, but there is geneivat da’at. Because the person buying is entitled to the information about what he bought. And so once again one has to discuss why this does not invalidate the transaction; not important now. But this is the concept of geneivat da’at. Now, what is common to these two aspects? In Maimonides they appear in two different places—in the Laws of Character Traits and in the Laws of Sale. What do they have in common? I argued that what they have in common is that in both cases I steal information from you that belongs to you or is due to you. And for that I need to distinguish between geneivat da’at and lying. Why? What is the difference between geneivat da’at and lying? People think geneivat da’at is a synonym for lying, but it isn’t. If someone asks me, for example, how old are you, and I say twelve, then I lied to him because I am not twelve. Okay? So I lied, but that is not geneivat da’at. Why? Because the information I stole from him, withheld from him, is not information that is due to him; it is not his information. I also have the right not to answer him at all. Am I obligated to tell him how old I am? If something is not yours or not due to you, when I take it from you, that is a problem of character. It is wrong of me to lie, but I didn’t steal anything from you—it wasn’t yours. But in the two examples I gave earlier from the Talmud—and there are many examples there in the Talmud, but they fall into these two types—what is common to all those examples? I withhold information from you, I lie, but it is information that is due to you, unlike the previous example I gave with age. Since it is information due to you and I withhold it from you, I stole information from you. That is called geneivat da’at. I stole information from you. Therefore Rabbi Chaim Palaggi says, essentially, that from that passage you can see that geneivat da’at is not what everyone thinks—that geneivat da’at means a lie. No. Geneivat da’at means stealing information. That is geneivat da’at in the literal sense: theft of information. Except that when I withhold information from you that is not due to you, I am just lying. When I withhold from you information that is yours or ought to be yours—you are buying a car, you are entitled to know what you are buying—that is information due to you, it is yours. If I take that information from you, that is geneivat da’at, theft of information. If I invite you for Sabbath and you feel gratitude toward me, then if I created gratitude in you toward me, you are entitled to the information on the basis of which that gratitude is built—or that gratitude should not exist, because there isn’t really anything here. That information is due to you; this is not just like lying when you ask me my age. Therefore, where the information is due to you and I conceal it from you, there is geneivat da’at. So the concept of geneivat da’at does not belong to the realm of falsehood at all. That is a mistaken interpretation. It belongs to the realm of theft. It belongs to the realm of theft. By the way, in theft itself, think of a spectrum whose one end is falsehood and the other end is robbery. Theft lies somewhere in the middle. Why? Because theft is robbery—it is taking someone else’s object—but with falsehood or concealment, doing it quietly. The robber—yes, he’s the macho one—the robber does it in full view of everyone. He lies to nobody. He does it openly, right on the table. The thief has an element of falsehood in him, but no one would say that the prohibition the thief violates is from the family of falsehood. It is from the family of robbery, but with an element of falsehood. By the way, this is connected to the Midrash of the Sages asking why the fourfold and fivefold payment applies to a thief who slaughters or sells, but not to a robber. They say because the thief is more severe, because he also lies. He also conceals himself and hides from the Holy One, blessed be He. There are various versions. So there is an element of falsehood in theft, but you cannot say that the transgression of theft is a transgression from the family of falsehood. Falsehood is a transgression between a person and God, not between a person and his fellow. Only if the information is due to the other person is it a transgression between man and man. If the information is not due to the other person, then it is a transgression between man and God, even if I lied to the other person. Is there a difference between stealing and concealing? Concealing means the information still exists. Okay, with regard to information, concealment is like theft. Maybe I’ll give an example. The Talmud in tractate Sanhedrin says that on the day of Rabbi Eliezer’s death—he had been under ban ever since the Oven of Achnai—on the day of his death, his colleagues, his students, the great Tannaim, come to visit him. They remove the ban that day. It’s a very dramatic, moving passage in the Talmud. In any case, Rabbi Eliezer says to them: “I learned much Torah from my teachers, and I did not diminish from them even as much as a dog lapping from the sea.” Meaning—Rabbi Eliezer, after all, if all the quills were pens, all the oceans ink, and all the fields quills—I don’t remember the exact wording—you still couldn’t write down what I learned from my teachers, and all that was not even enough to diminish from them as much as a dog laps from the sea. Meaning, he is saying to them: look how much Torah there is in me. This is Rabbi Eliezer, “a plastered cistern that loses not a drop,” in Ethics of the Fathers. How much Torah is in me, and you put me under ban and did not come to learn from me everything that was in me. Look how foolish you were. He is rebuking them for that ban. So what does “I did not diminish from them even as much as a dog lapping from the sea” mean? Rashi senses there is a difficulty. Why? Because when I learn Torah from my teachers, I do not diminish anything from them. What, do they forget it? Is this like the stories about the Baal Shem Tov, or those Hasidic tales where I buy a melody from some shepherd and he immediately forgets it, loses it? It doesn’t work like that. If I learn Torah from my teachers, my teachers still know that Torah; I did not take anything from them, I did not diminish anything from them. So Rashi explains there: “I did not diminish from them even as much as a dog lapping from the sea” means that even if I had taken it from them and it were no longer with them, it still would not have been even a drop in the sea of Torah they possessed. A sort of metaphorical expression. But I want to argue—and maybe this is also Rashi’s intention, but if not, then I want to argue differently—that when you take information from a person, you do not need the information to cease being with him. It is enough that the information is now also with you for that to count as your having taken it. Why? Because the value in information lies in its uniqueness. If someone has a patent—let’s return to intellectual property—if someone has a patent and I steal his patent, what does it mean to steal the patent from him? What, he doesn’t know the patent anymore after I took it? Of course he does. It’s just that now I know it too, and I make use of it and spread it around. So he has lost the value of that patent. The value of information, of an idea, of a creation, lies in its uniqueness. If there is no uniqueness—once the disc is cracked, once the computer is hacked—it has lost its value. Not because the information is no longer there, not because they took the information from me, but because the information is now exposed to everyone. Information, unlike any other object, derives its value from being exclusive, from being only with me. Once it is not only with me, then it is no longer considered that I have information. Therefore this counts as taking my information from me. Rabbi Eliezer did diminish his teachers of the information he learned from them, because if he also knows it, then people no longer need to come to them to ask; they lost their status. He waived the exclusivity, the fact that only he held that information. And in the case of information, that is one of the important bases for its value. Therefore Rabbi Eliezer really did diminish his teachers. Everything he learned, he diminished. It was just so little that it was not even a drop in the sea. Fine, but what he took he really did diminish. And I bring this of course from an aggadic passage, but I bring it to show that when we speak about information, I can take your information and this counts as my having diminished you. I took something from you that is yours. Now, what do you mean? The information is still with you. One candle can light one person, one hundred people. Yes, but with light, my using the light does not interfere with your using the light. But with information, the value of the information lies in its uniqueness. Therefore with a candle it is one candle for one, one candle for a hundred; with information it is not. With information, information for one is information; information for a hundred is worth nothing as an economic asset. It is worth nothing. The claim is that information is a kind of entity, an object, that one can own. And that is basically the intuition of those later authorities—Rabbi Elyashiv or Rabbi Shimon Shkop and others—who feel that by simple logic there is a prohibition of theft here. Without saying, wait, but what do you do with Maimonides, and what about an abstract thing, and so on—I think that what stands behind it is that Maimonides does not say there is no ownership over an abstract thing; he says there is no ownership over something that is not a thing, whether abstract or not. But something that is a thing, even if abstract, can be owned. And information is an excellent example of this. Therefore their intuitive feeling was that information a person invented or found—it doesn’t matter how you describe it—is information that belongs to him. And if you take his information, you are a thief. Notice: this is not damage, this is theft. Theft means that I see information as a kind of object, as something that exists and over which ownership can exist—intellectual property in the literal sense. I have ownership over the thing. Once there was some panel—by the way with Omri Linden, I had really forgotten that he too was part of the original source—there was a panel at Bar-Ilan about medical ethics. One session there was devoted to the ova of the Nachmani couple. The question was whether a person has rights over the ova, whether a woman has rights over the ova, whether a man has rights over his sperm. Can that sperm be used to fertilize his wife’s ovum after he has died? His parents did not want it, and she did. The question was: who owns the sperm? Okay? There was a discussion there about who owns the sperm or who gets to decide what is done there. And I wanted to argue that from the halakhic perspective, we are basically talking here about the husband’s DNA. The husband’s DNA is information. And if I assume that information belongs to the husband and that information can be owned, then true, the husband did not create that information—the Holy One, blessed be He, created that information—but there is certainly room for the argument that a person owns the information that constitutes him himself. Not because I created it—that’s not intellectual property—but it is ownership over information. In that sense it resembles intellectual property. It does not resemble intellectual property in the sense that I did not create the information, it is not my idea. But it is my information. And if one can own information, if information is an object that Jewish law is prepared to recognize as subject to ownership, then in that context too one can speak in terms of ownership, of property. Rabbi, Rabbi, yes—Rabbi, with intellectual property, can’t we also weigh the possibility that what we have here is just discovery, not creation? After all, one could describe knowledge in the world as something that already exists, that God created, and you only discovered it—and specifically in this case of DNA you are claiming ownership. I’m saying exactly that. So suppose I can clone someone without taking anything from him, but I can clone him. He could say: no, you can’t clone me because the DNA, the DNA information, is mine; it is in my cells. But you didn’t create it—basically God created it. But as we said earlier, you can say the same thing about every idea. Einstein also did not invent the theory of relativity; he discovered it. Exactly, so that’s what I’m saying. So ostensibly that would be an argument against intellectual ownership, because you only discovered it but God created the knowledge. It’s not an argument against ownership, because you are assuming that ownership exists only for whoever invented the information. But one can certainly say—you may dispute this—but one can claim that whoever found the information can own information even if he is not the one who invented it. It’s a weaker argument. Fine, weaker, somewhat weak. You can argue, but I’m saying that on the principled level that is not my issue here in this discussion. I’m just trying to show how one can solve the troubling problem of ownership over information. I’m trying to show the various implications, how far this can go. Obviously that is more far-reaching, but still it seems to me that it definitely fits the intuitions prevalent in the world today. Today it is much easier for us to relate to information as a kind of object, as an asset that can be owned. Today, in everyday life, we are constantly talking about ownership of information. It is almost the most common object in conversations about ownership. Who owns this information or that information. Therefore in our generation it is much easier to show people or make vivid for people the meaning of this intuition. In the past one really needed a developed imagination to think about this. Fine, you can still dispute it—I’m not saying otherwise. I am only saying that this is a possible way out that says that there is indeed such a thing as ownership of information in Jewish law. I’ll close this parenthesis, which dealt with all the solutions Jewish law found for intellectual property, and return to the basic structure. The basic structure tells me—you see that we need to do very serious intellectual gymnastics in order to produce such an idea as intellectual property in Jewish law. By the way, I have intellectual property over this idea too—the idea of how to ground intellectual property in Jewish law. The claim that we need to do very serious gymnastics in order to produce this thing—you do not find that in the legal world. Even if in the end I arrive at my own conclusion—and again, I know of nobody who said this—but I think this path is the only path that leads us to the concept of intellectual property. There is something here that I own. No other halakhic route succeeds in doing that. There are intuitions among decisors that it exists, but they do not explain. And I think the explanation is this explanation. So first, this is Platonic in the sense that I recognize information here as some existing entity. It is not a fiction. I am not defining information as an asset over which ownership can exist. I understand or acknowledge that information is a kind of asset, an object. So that is a Platonic conception. But beyond that, the distress that leads the decisors to do all this gymnastics in order to ground the idea of intellectual property—that is what matters here. Because that distress basically says: unless you find me some source or metaphysical anchor or whatever, there is no intellectual property in Jewish law. It is not in our hands. We are bound. In the legal world, no—we shape it this way, shape it that way, there is no distress and no problem. There is only a question of how best to shape it. But once I know what my goals are, I derive from them the structure of intellectual property and shape it in order to achieve those goals. There is no dimension of distress there. All the gymnastics I just described to you here are an indication of the level of distress we are in. That is why all this gymnastics is necessary. Therefore there is here double evidence for the Platonic dimension in halakhic thinking. One is the distress, because the fact is that without a metaphysical source there is no ownership. And second, the solution—at least the solution I proposed—is indeed a solution based on there being a metaphysical source, namely that information is a kind of entity. This information exists in some sense in the world and I can own it. This is clearly a Platonic conception. Both the problem and the solution have a Platonic character. Yes. So basically the method is to show that in order to show that information really is a thing, the method is to show that it has a property. Was that basically the method here? As though the property is exclusivity? No, I don’t think so. The question of exclusivity only means that the thing has value. But the fact that it is a thing—I did not connect that to the issue of exclusivity. Exclusivity only explained how one takes information from someone. After all, if I took the information, the information is still with him. So how can it be taken? I say because I harmed its exclusivity. But seeing information as an object itself has nothing to do with exclusivity. That is a metaphysical assumption. It’s an assumption—don’t you need, as it were, to prove that somehow? I only show how one takes it and what the economic harm is in taking it, because there is harm to the exclusivity, and therefore I can speak about it in terms of theft, compensation for theft, value, and the like. But first of all— Yes, but the thing is the apple, not the smell of the apple. The smell of the apple is a property of the apple. For it to be a thing, for me to call the apple a thing, doesn’t it need to have some particular property? Maybe yes, maybe no, I’m not sure. That takes us back to the question of matter and form in Greek philosophy. Can there be matter without form? Can there be a thing without properties? You can discuss that, but in my opinion it does not concern us here. Maimonides did not come to prove that an apple is a thing—obviously an apple is a thing. On the contrary, he came to argue that the smell of the apple is not a thing. The smell of the apple is a property of the apple; it is not a thing. The fact that I know an apple is a thing—that Maimonides does not need to prove to me. His claim is that the smell of the apple is not a thing, because it is a property of a thing; it is not a thing. Okay, I understand. Fine, so we’ll stop here. Rabbi, perhaps one could say regarding that aggadic passage the Rabbi mentioned, about Rabbi Eliezer the Holy One, who said that I did not diminish from my teachers even as much as an infant lapping from the sea—after all, it’s clear that he goes… Rabbi Eliezer always had the approach of not innovating anything. Whereas perhaps the Sages—say Rabbi Yehoshua—would have said to him: I reject that statement entirely, because I, for example, adopt an “author is dead” approach and a kind of deconstructive, creative interpretation, such that really I could never diminish from my teachers at all, because I created it myself. That doesn’t seem plausible to me. Because Rabbi Yehoshua agrees that there is information I receive from my teachers. He only argues that I can also innovate information by myself. But he does not dispute that when I take information from my teachers, I received it from them. Therefore there is no reason to create a disagreement between them on this point. The only question is what the focus is: is Torah only what I received from my teachers, or is Torah also something I create by myself? That is the disagreement between Rabbi Eliezer and Rabbi Yehoshua. I don’t think I would make it into a metaphysical dispute between them. Can I ask a question? I thought of two examples of things that seemingly are subject to ownership and appear in Jewish law. One is debt, which is anchored in a physical document, and that is something one can transfer—one can also transfer debts. And there is also the concept of benefit-right, which one can trade in one way or another. Benefit-right is what people asked about earlier, but I’ll answer it. As for debt, there was actually a whole series on that, and in truth that too is somewhat connected to Platonism. My claim there was that debt really is ownership, and the institution that I own is the concept of value. The invention of money is basically taking this abstract concept of value and representing it through tangible objects—notes or coins or something like that. But that only illustrates for us that even before the invention of money there was such an abstract object called value, and value can be owned. From this I explained, for example, a contradiction in Maimonides, because Maimonides says—and everyone asks on this—the Talmud says that you cannot betroth with a loan. You cannot betroth a woman through a debt. But with store credit you can betroth a woman. If the woman bought from me on credit and owes me money, okay? She owes me money, and now I want to betroth her—I can betroth her, says Maimonides. Even though with a debt I cannot betroth a woman. What is the difference? My claim is that debt, according to Maimonides, is really a gift. A loan is a gift. The fact that you owe me is because repayment of a creditor is a commandment; the Torah imposed on you a commandment to give me a gift back, but not that there is something with you that is mine. But in store credit, if you took from me on credit, then there is money with you that is mine. Value, not money. There is value with you that is mine. And now if I want to give it to you, then I gave you money and one can betroth a woman with that. This is exactly an excellent illustration of what I’m talking about here. Because it means that the concept of value, although abstract, can also be owned. Regarding store credit, can I betroth a woman even if someone else owes me, or does it have to be the woman herself? I can betroth a woman if someone else owes me; I have to give her the money. But value is a bit like a property; it’s a bit like the smell of the apple. What I’m saying—I claim that it is not. The value of a thing is of course a property of the thing. But it may be that there is value of one hundred shekels with you that is mine. Not the value of something. What today we call: I have one hundred shekels with you. Not a hammer worth one hundred shekels. I have one hundred shekels. Which one hundred-shekel note you give me, or if instead you give me a hammer worth one hundred shekels, no problem. Those are different ways of realizing the value of mine that is with you. The concept of value is not only the value of something. Rather, the concept of value itself is an object. There can be ownership over value. My money in the bank—what is my money in the bank? Can you point to something in the bank that is mine? Nothing. Okay? Not even the overdraft. Nothing is mine. Rather, there is value of one thousand shekels in the bank, and that value is mine. It is an abstract thing, but it is a thing that we all relate to as a thing, as something of which I am the owner and which is deposited in the bank. Therefore my claim is that many of the discussions about the prohibition of interest in the bank are mistaken, because people do not distinguish between store credit and a loan, and they think the bank owes me. Then there is interest when it gives me money. Not true. My money in the bank is a deposit, not a loan. There is value in the bank that is mine. It is not a loan. A loan is when I gave the bank a gift and it has to give me a gift back. But this is like store credit: I deposited money in the bank and now there is value in the bank that is mine. That is a deposit, not a loan. On a deposit there is no prohibition of interest, at least not a Torah-level one. I discussed that once—I think there was some series where I talked about this, about what money is. Rabbi, one more question if possible? Yes. We learned, according to the Rabbi’s approach—which really sounds reasonable—about the separation between morality and Jewish law, the independence of morality from Jewish law. So I’m curious to understand why the Rabbi spoke about the motivation that decisors have, and it seems to me you have as well, to find a basis for copyright within Jewish law too—but ostensibly there is no need. Motivations? You can’t go to the grocery store with motivations. Obviously I would like Jewish law not to contradict morality. I have that motivation too. If I can find a halakhic avenue that accords with morality, I will choose it. I am only claiming that if I do not find such an avenue, that does not trouble me on the theoretical level. The fact that there is tension between Jewish law and morality does not trouble me on the theoretical level. Practically, of course it troubles me, because I don’t want to do immoral acts. So if you are asking about the psychological motivation, it certainly exists. I do not want to behave immorally. But when I make the philosophical claim that if in the end I reach the conclusion that Jewish law does not accord with morality, that should not disturb me on the philosophical level. I meant because there is already all the state protection, the protection of state law, over this area, so it feels to me that… Right. Therefore the decisors really remained there, and that was the way out. I am only claiming that in truth there is intellectual property. My intuition is not only the moral intuition, because on the contrary, with the moral intuition I solve it through all the decisors’ solutions. What troubles me is precisely the metaphysics—Jewish law itself, not morality, troubles me. Because for me, the problem with Jewish law not granting intellectual property is not the moral problem; the moral problem can be solved. The law of the land, unlawful encroachment, payment for benefit, whatever. What troubles me is that it cannot be that there is no ownership over information, because I perceive with the eyes of the intellect—I feel that metaphysically there is ownership, there is an object here. I am a Platonist. This is a halakhic intuition, not a moral one. I understood the distinction. Thank you. Okay, so we’ll stop here. Shabbat shalom. Thank you very much, Shabbat shalom. Thank you very much, thank you very much.