Areas – 2015

outline

A. The possible sources of copyright in Halacha

1. The struggle
2. Descending into his friend's art
3. Payment for pleasure
4. Transfers at the discretion of the landlord
5. A royal regulation or law

B. Ownership of an abstract entity

1. Is there ownership of an abstract entity?
2. What is the disadvantage of owning an abstract entity?
3. An abstract entity that is not attached to a tangible object

C. Plagiarism

1. Theft or lie?
2. Creating gratitude for free
3. Taking information from others

D. Prohibitions arising from the prohibition of plagiarism

1. Theft of Torah novellas
2. Reading someone else's letter

E. Copyright – Ownership of his information

F. Unique information is an asset

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

H. The obligation to compensate

I. The consequences of suspending copyright in 'plagiarism'

A. The possible sources of copyright in Halacha

The struggle

The question of intellectual property, and in particular the question of copyright, in Halacha, has arisen in recent generations (mainly since the invention of printing).[1] From a legal and halachic perspective, the discussion must be divided between two different questions: the question of the creator's rights to limit the use of his work and to charge fees for its use (monetary right). And his rights to demand that his name be mentioned on the work and that its content not be changed when it is used or presented (moral right).[2] This article is mainly about monetary rights.

This issue must be discussed on three different levels: whether there is ownership of copyright; whether the infringement constitutes a prohibition (plunder, or otherwise); and whether there is an obligation to compensate. There is a certain dependence between the questions, for example: if there is no ownership, there will be no prohibition of plunder, etc.

The question of copyright has been discussed extensively in the halakhic literature of recent generations, but it seems that there is still a fundamental gap regarding the anchoring of the case law in the sources (see mainly Navon on this). On the one hand, there is a clear feeling that infringement of copyright should also constitute a halakhic prohibition, and there is even a tendency to find a halakhic anchor for the duty of the infringer to compensate the creator in certain circumstances.[3] Most poskim, at least in our generation, agree with this principled approach. However, on the other hand, beyond general statements about the prohibition, it is difficult to find a clear halakhic anchor for it. As we will see below, it seems that the prohibitions of theft and pleasure cannot be simply applied to this issue, but many poskim tend to ignore this, and rule without any real halakhic reasoning that this is prohibited. For this very reason, some poskim truly believe that they cannot prohibit this. Examples of both types will be given below.

The main goal of this article is to propose a more solid halakhic anchor for the very assertion that there is ownership of copyright, and thus also for the assertion that there is a prohibition (plunder, or theft) in this. We will propose a source for these assertions from the prohibition (which is Da'arithah for most systems) of plagiarism. In light of the explanation we will offer, we will attempt to clarify several points that have remained vague or incomprehensible in the previous halakhic references. As we will see below, the proposed system also has several practical implications for the law.

Descending into his friend's art

The poskim tried to base the copyright on various halakhic foundations. Some tried to base the prohibition on a law that detracts from the art of a fellow, or on trespassing. However, Rabbi Batzri already noted[4] That this has no special relevance to the question of copyright. These questions deal with a person's right to engage in a particular art and make a living from it, versus the right to compete. Questions of copyright and intellectual property deal with a person's right to unique knowledge, or to his own invention.

One implication that sharpens this difference is the territorial question. With regard to trespassing and encroaching on one's fellow man's art, there are definitions of a city or state, beyond which there is no problem engaging in the same profession. On the other hand, the theft of knowledge is not dependent on territory. If a person has rights to knowledge, or a unique invention, they apply wherever he is, without limitations of distance.[5]

More generally, it can be said that in questions of trespass and descent into art, there is no unique reference to the inventor of knowledge, and he is treated like anyone else who deals with the field in question.

 Payment for pleasure

Some have tried to drive the wedges of the prohibition against violating rights, and of the obligation to pay a person for spiritual rights, into the issue of enjoyment. The halachah states that it is the one who benefits and the one who lacks that is liable (BK 22-21, and Shulchan[6] And a more fundamental problem: in royalties, the discussion does not concern the creator's rights over his creation, but rather the pleasure derived from an object (or a financial investment).[7] of the fun; however, the issue of intellectual property attempts to find a basis for a person's very right to an invention or unique knowledge in his possession.[8]

Transfers at the discretion of the landlord

Rabbi Goldberg suggests as a source for the prohibition of copyright infringement the law of 'passing on the owner's will'. This is a renewed expansion, which has also sparked some debate,[9] However, for our purposes, it should be noted that here too, there is no discussion of actual copyright, but rather of the use of the cassette (since this is the subject of the article by Razan Goldberg). However, copyright infringement can also be committed without any use of an object purchased from the creator, for example: one can hear from him about his invention, or discover it by chance or intentionally, and use it. In such a situation, it is difficult to speak of a law of transfer as a basis for prohibition. Therefore, it seems that, at least with regard to the essential question of copyright, it is also difficult to find a satisfactory answer in a law of transfer at the discretion of the owner.

A royal regulation or law

Apparently, the obvious conclusion (see, for example, Navon) is that the prohibition against violating copyrights must be anchored in a rabbinical regulation, or it will remain a purely moral prohibition. In any case, it is clear that the obligation to pay financial compensation for such infringement can also be anchored solely in a regulation.[10] On the other hand, as Rakover and Emek-HaMishpat have shown, many poskim have taken it for granted that there is a prohibition in this, and most of them also have an obligation to compensate, and all of this is apparently based on the principle of the law. Most of them do not even bother to explain this, and they write it down (or say it orally, see many examples from contemporary poskim in S. Emek-HaMishpat) as a simple matter that cannot be disputed.

We will give only two examples to illustrate the matter, one of a direct reference, and the other of a sage who distracts (in writing) according to his own understanding. A questioner and answerer (Mahduk Ha-A 34) wrote:

Surely, a new book that is printed by an author and is credited with being accepted by the world, is a pishta that he has a right to it forever… and will not our entire Torah be like their idle talk?! And this is something that reason denies and actions every day that the one who prints a work has a right to it, and therefore has a right.

And Rabbi Shekap wrote at the beginning of his novella Baba Kama:

Just as in matters concerning human rights, it is agreed, according to the laws of the Torah and the laws of nations, that anyone who invents something new in the world is the owner of the right to everything...

And in the oral sayings of the modern jurists, in Emek HaMishpat (p. 2, sec. 6), he cites several references. In the name of Rabbi Y.S. Elyashiv, he cites that he does not understand how it is possible to dispute that the creator has ownership and right over his creation. Rabbi Wesner also wrote this in his agreement there:

And regarding the actual law, Torah thought certainly tends to include the prohibition of theft, etc. in what its companion invented completely anew, both in the book of Halacha and the 12th century, and in other matters – and so it is in the law of the kingdom everywhere in the world.[11]

If so, it seems that we still need to find a more solid halakhic source, one that is rooted in the Torah (since our ability to amend a regulation today, especially when there is no full consensus on it, and there is also no authorized institution that is accepted by the entire public to do so, is very problematic). Furthermore, from the statements of most of the poskim, it does not appear that their intention was to amend a regulation. They appear to be expressing an opinion by virtue of existing halakhic law.

B. Ownership of an abstract entity

Is there ownership of an abstract entity?

There was room to ask the question of 'mainly heresy': why do we even have to find a source? If indeed the poskim assume as a simple matter that there is theft of copyright, it is probably included in the ordinary theft law (there is such an assumption throughout the entire body of law, and see on this below). However, although this seems to be the case from the words of several poskim, it is difficult to ignore the fundamental problem underlying the confusion on this subject, which is that copyrights are rights over an abstract entity: the work, which is a mere idea.

Maimonides, in his book "Knowledge of the Holy Scriptures," chapters 21-22, and especially 22:13-14, insists on the impossibility of applying ownership to abstract entities, and says:

No one acquires, neither by sale nor by gift, anything that has substance in it. But something that does not have substance is not acquired. How? No one acquires the smell of this apple or the taste of this honey or the eye of this crystal, and so on.

This principle is a fundamental foundation in halakhic law. For this reason, the author of the question and answer and the aforementioned Rabbi Wesner apparently needed evidence from the Dina of Malchut throughout the world.[12] Although this is not enough, according to the DSU, to establish a halakhic prohibition on violating copyrights, there is also a halakhic source. Therefore, the problem of the creator's ownership or rights over his creation requires clarification, and especially a search for a Torah source that will establish it.

The author of Emek HaMishpat (see especially 15) proposes a principled approach to establishing copyright halachically. In fact, it is more accurate to say that he claims that the problem (or, at least, the part of it that concerns the very ownership of ideas, as opposed to the question of the prohibition of theft with respect to them) is fundamentally flawed. His fundamental claim is that there is no obstacle to a person having ownership of abstract entities. According to him, the problem of something that is not specific concerns only the possibility of transferring this ownership (or applying it), and the Maimonides' intention above was not to say that there cannot be ownership of the 'crystal eye'. His intention is solely to say that this entity cannot be granted to someone else.

The author of Emek-HaMishpat goes so far as to claim (in his introduction to Si 15) that although it is accepted today in the halakhic world, almost without question, that there is no ownership of things that do not have substance, in his opinion this has no basis in the Rishonim or the Aharonim.[13] We will now discuss these words, and see from them the possibility of saying that there is indeed a problem with ownership itself.

What is the disadvantage of owning an abstract entity?

It seems that the reason why, although there is ownership of an abstract entity, it cannot be transferred, could be one of four reasons. There are two fundamental types of references in halakha to property acts: either it is a purely formal legal act; or it expresses, or verifies, the formation of a will. In light of this division, it can be understood that the impossibility of conferring an abstract entity is due to the absence of will in relation to such entities, or because a property act is not defined for them.

Each of these two directions can be divided into two sub-options: Is the problem with an abstract entity the fact that it has disregarded the concrete entity that carries it; or is there a fundamental problem with an abstract entity, even if it stands on its own and does not disregard another tangible entity. The NPC is concerned with abstract entities that stand on their own and do not appear on concrete entities that 'carry' them. Copyrights seem to be such a type of 'entity', if at all.

If so, there are four basic options here:

1. There is no distinction between the giver and the buyer when they refer to an abstract entity.
2. There is no consensus regarding an abstract entity attached to ('carried on') a concrete entity. The reference is to the tangible object, not to the abstract entity on top of it.
3. There is no legal act of ownership that grants the abstract entity, if it is carried on a tangible entity. At most, the concrete entity can be granted, and in that case ownership of the abstract entity will be created. For example, ownership of the appearance of a diamond follows ownership of the diamond itself.
4. There are no property deeds in Halacha regarding abstract entities at all.

In light of the above division, one can return to the Rambam's statement on knowledge, and understand it (as is generally understood) that there is no ownership at all over abstract entities, and yet argue that this is only if the abstract entities are borne on tangible objects. In such a situation, ownership of the tangible object determines ownership of the abstract attribute attached to it. However, according to this, in completely abstract entities – such as ideas or works, in the case of copyrights – ownership (or different rights) may be possible.

In light of the above, perhaps it would be possible to add another element that would explain the possibility of ownership of information, at least when it is a new creation. We have seen that the problematic nature of envy or ownership of something that has no substance can be explained in different ways. Two main directions have emerged: lack of finality of mind, and the absence of an act of ownership. If indeed the problem is lack of finality of mind, there is room to say that with regard to an idea, or a creation, there is a complete finality of mind (certainly today, when ideas are worth a lot of money and have become a commodity that is passed on to the merchant). In any case, the entire problem of something that has no substance does not arise at all in connection with the creation. On the other hand, the absence of an act of ownership is also relevant to information (and we are not dealing with Situmta's solutions here). Admittedly, here there is room to distinguish between a problem of envy and theft, and a problem of ownership itself. If there is indeed a problem with ownership itself (as we noted above against the sweeping claim of the author of Emek-Ha-Mishpat), then the element of finality of mind will not necessarily be useful.

An abstract entity that is not attached to a tangible object

The author of Emek HaMishpat cites evidence for his statement from the words of several commentators, both early and late, on the issue of Shiyor (B"B 33:1, and Kamez-Kamach), foremost among them the Rashba in the Teshuva. He claims that Shiyor can be abstract entities,[14] Therefore, it is clear that ownership of them is defined in the halacha. In any case, he holds that Maimonides' intention is that only envy of such entities is not possible, but ownership - certainly is. According to this, it is clear that his understanding is not that ownership of the abstract entity follows the object that carries it, which could not also be retained. He apparently assumes that it is not possible to perform an act of ownership over an abstract entity, or that there is no culmination of knowledge for ownership over such an entity. In any case, when ownership does not require an act of ownership, it also exists with respect to abstract entities.[15]

However, according to the two possibilities we have raised, it is possible to divide the Rambam's words into the issue of copyright, and to say that even if it is not possible to grant something that is not specific, copyrights can still be granted, since they are not borne on any concrete object. And in fact, it is possible that the problem of envy regarding copyrights does not exist at all.

However, the exact same thing can be said about ownership itself. Above, we noted that in order to understand that there is a principled possibility of ownership of copyrights, one does not need to interpret the Rambam as meaning envy and not ownership according to the Emek HaMishpat method. It can be said that there is no ownership of abstract entities that are borne on tangible objects. However, when such entities appear separately, there is a possibility of ownership of them, as explained above.

The author of Emek HaMishpat himself claims that, although there is ownership of abstract entities, the prohibition of theft would not apply to Kahai Gavana (see ibid., 24ff.). Therefore, he needed the prohibition of enjoying one's friend's wealth (his property, or his financial investment). In this, we find ourselves pressed by the words of several poskim who wrote to the Hadiya that this is prohibited on the part of theft.[16] The author of Emek-HaMishpat feels this, and insists on interpreting their words as referring to his words.[17]

His main view of the principle that there is no theft in an abstract entity is from the words of Maimonides, Shofar 1:3, that whoever hears the sound of the shofar is robbed, since there is no theft in the voice. Here too, a distinction must be made between an abstract entity that is attached to a concrete object, which is the shofar, and an abstract entity such as copyright, which stands on its own. It is possible that an entity of this type, just as we have seen that there is room for ownership of it, would also be room for understanding that the one who violates it would violate the prohibition of theft.[18] Beyond that: the sound of the shofar is not an abstract entity, but rather is not an entity at all. This is a type of use of the shofar itself. Therefore, there is no ownership at all, and therefore no theft. In such a case, it is clear that ownership is determined only on the shofar itself, and the sounding of the sound is at most the use of a stolen shofar.[19]

In any case, all of this still requires a source. Even if these divisions are indeed possible, how do we know that they are truly correct? We must cite a halakhic source that refers to ownership of abstract entities that are not borne on tangible objects, such as ownership of ideas or information, and thereby show that these divisions are indeed correct. Even the words of Emek HaMishpat themselves are not based on a source from the Torah (except for the Rashba's explanation in the Teshuva), and at most raise the possibility of dividing and saying that the problem is only in jealousy and not in ownership. However, he must still show a source from the Torah for this matter itself. As stated, in simplicity, the problem is actually ownership, and this is what many have understood. The same is true regarding the law of theft - such a division indeed seems possible in this context as well, but it still requires proof. Ostensibly, the simple words of the Maimonides and other poskim teach that theft (and perhaps not ownership) does not belong to any abstract entity, and how do we know that the Torah divides in 23.

Moreover: there seems to be a fundamental problem with the very assumption of the depth of law that works, or ideas, are abstract entities. The examples in the halakha of abstract entities are the air above a house or yard, the reflection of an object (the crystal eye), etc. All of these are indeed existing objects, but they are abstract. They are not rigid bodies, and perhaps do not have mass, and some of them may not take up space in space (like the crystal eye). In contrast, a work is an idea or information that is not abstract entities, but rather things that do not exist in the world at all. The work, as long as it is not on a disk, or a book, or a picture, etc., does not exist in the world in any sense, even the most abstract. This seems to be the reason why many poskim do not discuss the work itself at all, but rather the object created from it (which carries it). From here we come to the laws of transferring at the will of the landlord, payments of interest, etc., as explained.

Above we saw that the fact that the work is completely abstract (meaning that it is not carried by a concrete object) can be a consideration that makes it easier for us to find ownership and determine that there is theft in the works, since the work is not a copy of another concrete object. Here we see the opposite aspect, which actually hinders the ability to treat copyright infringement as theft, and in general to treat the creator as the owner of rights in his work. This consideration emphasizes the need to find a source that will decide whether a work is indeed an entity to which ownership belongs, and to which theft belongs; or whether it is similar, or perhaps even worse, than the abstract entities discussed in the earlier halachic sources.[20]

In the next chapter, we will offer a discussion of the prohibition of intellectual theft, which, at least according to some of the rishonim and poskim, can be found as a source for the possibility of ownership of information, and even a prohibition of theft (or robbery) regarding information. In any case, the halakhic possibility of establishing copyright and intellectual property rights on sharper halakhic grounds opens up, as actual Torah prohibitions, laws of theft and robbery.

C. Plagiarism

Theft or lie?

The prohibition of plagiarism is discussed in detail in the issue of Chulin, page 1.[21] It is explained there that it is forbidden to steal the mind of any person, even a Gentile, and this is ruled by all the poskim. In our language today, the term 'stealing the mind' denotes deception, when a person steals the mind of his friend and misleads him. However, in the halakhic context, it is difficult to say that every lie is stealing the mind, otherwise there would be no need to establish a separate term for it.

Indeed, from the discussion of the above-mentioned issue of hulin, and as also ruled in the Rambam and the Shulchan Arba (Cham 32), a perception emerges that plagiarism nevertheless involves the concept of 'lie'. The prohibition of plagiarism appears in two main contexts:

1. The context of a sale – when the seller does not disclose to the buyer a defect in the item he owns.
2. The context of deception regarding one's relationship with one's friend. For example, when a person invites one's friend to dine with him, while he knows that the friend cannot come to him at all. The person who invites creates in his friend a feeling as if he is very important and precious to him, while in fact his invitation is based on the knowledge that the friend will not come to him.

Accordingly, in the Rambam, the prohibition of stealing knowledge also appears in two different places: in the laws of opinions and in the laws of sale.

The parallels between these two contexts suggest that the basic definition of plagiarism is indeed a prohibition from the family of lying, deception, or fraud. However, such an understanding is not necessary, and probably not even reasonable. The Ritva on the issue of a minor offense (and see there in Mahadir 8:257, which cited other parallel rishonim) states that this is a prohibition from the Torah, and cites a source for this prohibition in the name of the Torah, from the verse "You shall not steal" (Leviticus 19:11). From this verse we learn the prohibition of stealing money (in contrast to the verse "You shall not steal" in the Ten Commandments, which deals with stealing souls). If so, theft of knowledge is learned from the same source from which we learn the prohibition of stealing money. This indicates a perception that theft of knowledge belongs to the family of prohibitions of theft, and not necessarily lying. This is apparently also indicated by the very term "theft of knowledge." Some of the latter have already commented, as it also means in Mekhilta Mishpatim, Chapter 13 and in Tosefta, Chapter 17, 53: "There are seven thieves - the first (63: the greatest) of all steals the knowledge of people."

It is true that some have understood that the prohibition is from the rabbis (at least in some contexts).[22] Below we will clarify the issue based on the assumption of the Ritva and its supporters that it is a Torah prohibition learned from "You shall not steal." In any case, from this it seems apparent, unlike what we stated above, that the basis of the prohibition on theft of knowledge is not lying but rather theft. Admittedly, according to this, the classification of the second context as theft of knowledge (that of the Masrahav in his companion, which belongs to the laws of opinion) requires explanation.

If so, at least two fundamental questions arise from this schematic description:

1. What do the two contexts in which the prohibition of plagiarism arises have in common? Is there a common element of prohibition in both?
2. What is the relationship between the prohibition of plagiarism and the prohibition of theft, or, more generally, the concept of 'theft'? Ostensibly, there is deception here, or deception, which are prohibitions in the lying family, but not theft.

It is possible to divide this matter between the two contexts of the prohibition of theft of knowledge, since in the context of the laws of sale one can perhaps see a greater connection to theft of money. In any case, in the context of the laws of opinion the issue is certainly difficult.

In light of the above, it appears that the prohibition of plagiarism lies between two elements, or two poles: lying and theft. In this language, it appears that the questions we raised above are: Is there a common element to these two contexts, and what is it? And what is the relationship between it and the element of theft?

It would seem that everything could be explained in terms of the polar opposite of lying. What is special about theft is that it is done through deceit. Theft, unlike embezzlement, is taking secretly and from a hidden place. In this way, the Sages explain the law that a thief pays double (and four and five), while a robber pays only the principal (the thief fears people more than God, because of the robber). According to this, it can be explained that theft is also a prohibition from the family of lying and deceit, and the foundation of both contexts lies precisely in the pole of lying in them. However, this does not seem to be enough, since in theft there is also an element of prohibition towards others, and in particular towards other people's money. While it is true that one of the unique characteristics of theft compared to robbery is an element of deceit, it is not the only element in theft. Furthermore, according to this proposal, it seems that it would be appropriate to learn the law of theft from the verse "Falsehood is far away," and not from the verse "You shall not steal."

Therefore, it seems that we should look for the answer closer to the pole of theft, rather than to the pole of lying. However, as we have already noted, it is not at all clear what is stolen when a person invites his friend to come eat with him and knows that he will not come.

Creating gratitude for free

In order to explain this, we will first briefly discuss the essence of the prohibition of stealing knowledge. The accepted definition of the basis of this prohibition is found in Rashi in the issue of Chulin, who repeats in several places the definition that stealing knowledge is the creation of goodwill for free. Several poskim make this difficult from various places where there is no situation of creating goodwill for free (see B.H. and Sama'a in the 19th century, and in the Talmudic Encyclopedia, etc.). It would seem that it could be concluded from this that stealing knowledge is indeed 'theft', but the thing stolen is not money but goodwill, which is given to the stealer of knowledge without compensation. However, this explanation may be relevant to the prohibition in the laws of opinion, and not to the prohibition in the laws of sale, where it is more difficult to see the connection to goodwill.[23]

Therefore, it becomes more apparent that Rashi's above definition is only a possible boundary in the prohibition, which exists even when the goodwill is created gratuitously, but the basis of the prohibition is different, and it does not always appear when there is goodwill (see also the examples below). As stated, this basis should also be common to the prohibition in the laws of sale.

More evidence can be provided that the prohibition fence is not a free creation of gratitude:

1. In the Book of Weeks 31, it is stated that a person who does not have money with his friend and who accuses him and makes him swear, commits theft. What kind of gratitude is there here? (See Talmudic Encyclopedia, note 69a).
2. The Rema (Yod Rand, 2) wrote that if a governor sends charity to Israel, he should not distribute it to the poor of the Akkadians (even secretly), but rather he should do what the governor ordered him to do. Although it is forbidden to take charity from a non-Jew, as explained in the Shulchan

Taking information from others

Therefore, it seems to be interpreted that the basis of the law of plagiarism is taking information from another person. When a person does not give his friend information that concerns him (in the ways in which he is obligated to give it to him), he violates the prohibition of theft, meaning that he is considered a thief of the information.

This principle can explain the two contexts in which the prohibition appears. When a person does not inform his friend of defects in the goods he sells to him, he is hiding from him information that 'belongs' to him.[24] Even if the price he charged is the fair price for this commodity, there is still theft of information from the buyer. Similarly, when a person promises his friend to come to eat with him, and knows that the other person will not come – this is concealing information (or providing false information) to the other person, since the other person thinks that he is his friend and lover, while he is not.

Of course, if he doesn't hate him, and the other person is just mistaken and thinks he loves him, he has no obligation to inform him that he doesn't love him that much. In order to violate the prohibition of plagiarism, there must be an act of 'taking' the information. Only the person who caused the false information is considered a criminal.[25] It is also explained in the civil issue there that if the person being misled makes a mistake through no fault of the deceiver, the deceiver is not prohibited from plagiarism.

Let us take, for example, what the Rishonim divided on regarding plagiarism in the form of a gift (see Rosh, Rashba and Ritva in the same issue). The Rosh believes that in the case of a gift, there is no prohibition against concealing defects, and it does not constitute plagiarism. The reason for this is that in this case the information does not 'belong' to the recipient of the gift, and in any case there was no act of taking (or, alternatively, what was 'taken' from him is not truly his). In such a situation, the goodwill is certainly created gratuitously, and therefore if indeed the taking of goodwill for free was the basis for the prohibition against plagiarism, then ostensibly there was a place to prohibit it in the case of a gift as well. It is true that some of the Rishonim prohibited this, and it is possible that in their view the creation of goodwill for free is indeed the essence of the prohibition, and not just an example for it. What is more, even if the basis for the prohibition against plagiarism were one of the prohibitions against lying, then what is familiar to me about what the giver of a gift is? Ostensibly, in any case, the second is mistaken, and one must listen to this.

We will continue and examine this through a threefold disagreement among the Rishonim on the aforementioned issue of hulin, regarding the law that one should not sell slaughtered prey to a non-Jew instead of a kosher slaughtered animal. From the words of Rashi (not mentioned in the commentary), it seems that the prohibition is only when one tells him that the slaughtered animal is kosher. In Toss, not mentioned in the commentary, there is a contradiction in Rashi and the Talmud that one violates the prohibition even without saying so. Although Toss implies that everything depends on the question of whether the non-Jew will form the understanding that he accepts as kosher or not (through his fault), that is, the distinction between spoken and unspoken is realistic (whether the non-Jew formed a mistaken understanding through his fault). However, the Rashba, on the other hand, supports the view that one violates the prohibition in any way, and there is no disagreement about this at all.

According to Thos, it seems that everything depends on the question of whether the foreigner is indeed mistaken for his fault. Ostensibly, they believe that this is a kind of 'taking your back', since he has 'the foreigner's information', even if he did not commit an act of taking it. However, according to Rashi, they say that an act of taking the information is necessary in order to be considered stealing knowledge, and as explained. According to Rashba, they see more clearly that this is a kind of 'taking your back', and this does not depend at all on the question of whether the foreigner is mistaken for his fault or not, but rather what is determined is that the foreigner is fed false information. In general, in all these cases, it is a question of the foreigner doing him a favor for free. And ostensibly, if the fence was the gratitude for free, what did he say to me and what did he not say to me. As stated, one must reject and say that the theft of gratitude is also an 'act of taking'.

As for the relationship between theft of knowledge and ordinary theft, it must be discussed in light of the prohibition against a non-Jew. As explained in the issue of shilin, and also ruled by all the poskim, the prohibition of theft of knowledge also exists against a non-Jew; in contrast, the prohibition of theft or plundering of money from a non-Jew is disputed in the early disputes. The Ritva made this difficult in the issue of shilin, for the authors of the Torah who cited the source for the law of theft of knowledge from the verse 4: "You shall not steal": How is theft of knowledge from a non-Jew forbidden, while ordinary theft, which originates in the same verse, is permitted against a non-Jew?[26]

The Ritva reconciles the difference between the two types of theft, with linguistic precision from the verse, but we still need to clarify this at the substantive level. Why is it that ordinary theft from a non-Jew is permissible according to the Tishah, while theft of knowledge from a non-Jew is prohibited according to the Tishah? Ostensibly, this suggests that theft of knowledge is not part of the theft case but is a law in itself (which we may learn from the repetition in the same verse). However, this seems to be a contradiction, since according to this it is not clear why the Sages specifically emphasized the prohibition of theft of knowledge in this verse.

And perhaps even as Rabbi Shimon Shekap says in Sha'ari-Yosher, Sha'ar 5, that stealing from a Gentile is a legal prohibition for all scholars (even for the view that there is no prohibition against stealing from a Gentile). Evidence for this comes from the words of the fear-worn (cited in Magen-Avraham 1363) who said, "You are not obligated" by an etrog that is stolen from a Gentile, and even according to the Mishnah that stealing from a Gentile is permissible, since after all, the etrog is not his. In other words, even using a Gentile's property without permission is a legal prohibition of theft, but the Torah did not find it appropriate to add a halakhic prohibition to this.[27] Therefore, it can be said that stealing knowledge from a non-Jew has a halakhic prohibition in addition to the legal prohibition. Perhaps the reason for this is the fear of the thief's moral decline (although there is also room for such fear in stealing money), but this is nothing more than a requirement of a ta'ama daqra.

From all that has been said in this chapter, it seems possible to understand that the basis of the law of theft of knowledge is, as it is written: the 'theft' of knowledge. This is not mere fraud, nor is it a political law of sale. It is a type of theft, but what is stolen is the person's information, or knowledge.[28]

And this is where the two questions we raised above are well-established. Plagiarism is part of the family of prohibitions against theft, and not necessarily among the prohibitions against lying.[29] Furthermore – as we have seen, it appears that the two halachic contexts in which the prohibition of theft of knowledge appears have a common element, closer to the pole of theft (and not to the pole of lying): in both, information is stolen.

D. Prohibitions arising from the prohibition of plagiarism

Theft of Torah novellas

We will conclude the discussion of plagiarism with two seemingly puzzling examples, which will clarify and prove our point. Baal Machane-Haim believes that one who quotes another's Torah in his own name is a complete thief. Maharam Shik claims that this is not theft, since there is no substance in Torah innovations, although according to him he violates the prohibition of plagiarism.[30] And apparently this is a strange thing, is the issue of plagiarism similar to this?! And if he does so openly, will he still be called a thief? And in particular, if the boundary of the prohibition of plagiarism is the creation of free goodwill, why would he attribute goodwill to this? Furthermore, what does it mean to the Hadith that the prohibition is towards the author of the innovations and not towards the listeners, and after all, the author of the innovations himself is not at all misled by him? If so, even if we understand the prohibition of plagiarism literally, which is a prohibition against deceiving, then here he is not deceiving him at all. It seems that the statement of Maharam Sheik can be understood only in light of our words above, that the basis of the prohibition against violating the rights of creators is the theft of information. According to the rabbinical view, it is clear that reciting the words of another in one's own name is literally stealing the mind of that other. This is a prohibition against the author of the innovations, the basis of which is the theft of the innovations, which are information that belongs to him.

Reading someone else's letter

A similar consideration to that of Maharam Shik, and perhaps even more significant, is found in Hakkaki-Lev's response to Rabbi Chaim Pelaji (Yod 34), who discusses the prohibition against reading another person's letter. He believes that this prohibition existed in the Torah even before the ban imposed by Derbe Gershom, and the ban was only intended to strengthen the prohibition. When asked about the origin of the prohibition, he raises the possibility that it is a prohibition against plagiarism. Here too, every reader will be puzzled: What does plagiarism have to do with this (certainly if the barrier is the creation of goodwill for free)? And perhaps if the barrier of the prohibition was purely deceit, there is some room for his argument, and that too narrowly. However, above we have already rejected this possibility in understanding the prohibition against plagiarism. However, here too it seems that we must arrive at our understanding of the law of plagiarism, which is the theft of information. Reading a friend's letter is the theft of personal information that is his own. Therefore, the link to plagiarism law is quite simple.[31]

From the words of Rabbi Pelaji, a more general principle emerges: the prohibition of violating a person's privacy is also based on the prohibition of plagiarism, since someone's personal details are information that belongs only to them. This also includes reading a letter from a non-Jew, since if the basis of the prohibition is plagiarism, then plagiarism is also prohibited against a non-Jew, as mentioned above.

Although Maharam Shik's opinion still has room for discussion, since he himself disagrees with Baal Machane-Haim, and believes that theft does not pertain to rights over Torah innovations, something that has no substance. If so, it is not clear how theft pertains to this. Perhaps this is really just a boundary in the laws of theft, but certainly in his opinion, ownership of something that has no substance, such as information, also pertains. Although theft does not pertain to this subject, there is certainly room to define that theft of such things does.[32]

In the following chapters, we will see several references, not necessarily halakhic, that show the basis of information theft as a type of theft. There, the boundaries of theft in this case will also be explained in more detail.

E. Copyright – Ownership of his information

In light of all that has been said here, it seems that there is a place to base the prohibition on violating the rights of a creator over his creation on the law of intellectual theft. The idea in the creation is information that belongs personally to the creator, as all the above-mentioned poskim wrote. This is certainly no worse than personal information found in a letter. In addition, we have seen that someone who takes information from its owner is considered a thief of information, and commits intellectual theft. According to our words, the ruling of all the poskim mentioned above is consistent, that the one who violates copyright is considered a literal thief from the Torah (and the relationship between theft and theft, etc., must be discussed).

Whether the use of the information in the letter or the infringement of copyright is not exactly about using the information for the purpose of making a financial profit. The prohibition exists in any case, by the very fact that the information belonging to someone has been stolen. It is not about the value of the information but about the information itself, as if it were an actual object. Although the issue of the obligation to compensate still needs to be discussed, of course, and see this below.

Violation of copyright is also considered theft of information. At the beginning of his book, Rakover cites several sources for such a reference, at least on the linguistic level.[33] For example, in the introduction to the Book of Solomon, he informs his readers that he follows the path of the late Rabbi Ha-Maor, but not as a 'stealer of his words.' Similarly, in a warning printed in the book Teshuvah-Mahabeh:

For one whose eyes are fixed on a transgression, and he says, "Yours is wicked, mine is wicked." And the prophet Jeremiah, may God bless him and grant him peace, spoke about him in the name of God: "The Lord speaks concerning the prophets, who steal the words of one man from his neighbor" (Jeremiah 23:30).

Although these can be interpreted as purely rhetorical expressions, and not necessarily as a substantive assertion, semantics also in some way indicates substance.

In various Talmudic issues, it seems that there is indeed a reference to the thief of ideas, or unique information, as a type of thief. In the above-mentioned camp of life, he brought evidence from the Sanhedrin 55a, which is incorrect, stating that one who studies Torah is liable to death. The rabbi asks why this is not included in the seventh commandment of the sons of Noah. And the rabbi makes the excuse (with one excuse), that it is included in the prohibition against stealing ("we are 'permitted', and they are not"). From this he learned that the one who violates the copyright of creators is truly a thief, and in any case he is disqualified from everything that a thief of money is disqualified from.

F. Unique information is an asset

The Netziv (Meshiv-Davar Cha"a 34) brings evidence for this from legendary sources. The Gm. in Ba"z 19:1, as well as in Iruvin 45:1, states that the one who studies Torah, his Torah is called his Torah; and from this the Netziv deduces the halakhic principle of ownership of Torah innovations. On the evidence from this legend[34] Evidence can be added from Rabbi Eliezer the Great's rebuke of his students for not coming to learn from him (Sanhed 68:1):

I learned much Torah and I taught much Torah. I learned much Torah, and I did not lack my teachers, even as a dog licks the sea. I taught much Torah, and I did not lack my students, except as a brush in a tube…

Apparently, learning Torah from someone does not take anything away from the teacher, and if so, why is the learning that Rabbi Eliezer learned from his rabbis described as taking a little away from their knowledge? How is this similar to taking a few drops from the sea that a dog licks? Rashi on Atar addresses this difficulty, explaining that Rabbi Eliezer's intention is to explain the difference between him and his rabbis, which is as small as the number of drops compared to the sea. However, this interpretation seems narrow in the language of the Gemara.

Indeed, things are consistent if taking information is considered a disadvantage, whether done without permission (by theft) or with permission. It is true that "a candle to one is a candle to a hundred," and the information is still with its owner as before; but after taking the information (with permission or without permission) it is also with the taker, and does not remain with its owner individually. We have learned that only unique information is an asset, and harming its uniqueness with its owner is harming this asset, and this is plagiarism. Of course, there is no prohibition when the matter is done with the owner's will (as taught by Rabbi Eliezer), but when the taking is without permission, there is theft or robbery.

And perhaps this is also what Rashi meant there, who wrote that the rabbi's deficiency is in the difference between him and his student. This difference indicates the amount of information that is still only in the hands of the rabbi - the one who knows. Only such information is considered property. In the terminology of the aforementioned Netziv, it can be said that when the Torah that is taken is known to all, it is no longer the Torah of this learner but the property of many. From this we conclude that information constitutes property only if it is unique to its owner; if it is visible to all, there is again no prohibition on taking it, since nothing that could be considered property was taken here. This applies both to personal information, which Rabbi Pelaji deals with in the aforementioned Hacki-Lev,[35] And they are in the work we are dealing with here. When this information is publicly known, it is not considered the property of its owner, and it is permissible to take it without permission. Although there is still room to discuss the size of the group to which this information is given.[36]

From all that has been said in the last chapters, it seems possible to extract from the law of plagiarism a foundation of ownership of information, which would not otherwise apply to theft of information. It also seems from this that with regard to rights to information, theft (and perhaps plunder) also applies, and not just ownership in the first place, and this is not according to the opinion of the aforementioned scholar of the law.[37] In other words, from here we can derive a source for the first two layers of the discussion on copyright. The third layer, which deals with the obligation to compensate, is discussed in Chapter 8.

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

To close the circle, we will return to the discussion conducted above in Chapter 2 and the controversy over the question of whether, according to halakha, there is a possibility of ownership of abstract entities, and we raised several possibilities for dividing between abstract entities that are related to concrete-tangible objects, and entities that exist separately (such as copyrights). On the other hand, we also saw a division between abstract entities and rights in a work that cannot be called an entity at all. We concluded the discussion with the question of whether these divisions, which are seemingly possible, actually exist in halakha, and we sought a source for this.

In light of what we have said here, the existence of the concept of 'theft of knowledge' shows that even if there is no ownership of abstract entities, 'information' is in any case different from other abstract entities, over which there is a possibility of ownership, and therefore also of theft. We offer an explanation for this. In our opinion, the reason for this is that information is an entity that is not related to a concrete object, and therefore it can be owned in itself, as explained there. The fact that a work is not an entity at all will probably characterize only those who hold the position that the creator has no right to his work (Chats, Reka, Mahrsham and their supporters). These will probably explain the law of theft of knowledge differently (and we have already seen that it is possible that commentators have disagreed on the understanding of this law), or they will disagree on the generalization we made from the prohibition of theft of knowledge to infringement of copyright.[38]

According to our words, there is no need to reach the puzzling claim of the author of Emek Ha-Mishpat (end of chapter 15) that the idea of creation is a fruit of the mind (which itself is a real thing), and therefore is enviable. According to us, it is precisely the fact that information is an entity that is not related to a concrete thing that allows us to define ownership and the prohibition of theft with respect to it, as we have explained.

H. The obligation to compensate

However, if we base the basis of ownership of a work on the concept of 'theft of ideas', then just as there is no obligation in law to compensate the injured party for theft of ideas, so there would apparently be no obligation to compensate for copyright infringement. However, it must be discussed whether the exemption from compensation for theft of ideas stems from the fact that this type of theft has no monetary value, or whether it is derived from the fact that there is no theft in the full legal sense. According to the first option, it can be said that in copyright infringement there is an obligation to compensate, because these rights, at least in certain cases, have value. However, according to the second option - if there is no theft here, we have no source from which to learn of an obligation to compensate.

We have seen that several jurists have studied the obligation to compensate from the obligation to pay interest. Navon in his article concludes that the problem is still not resolved, since the obligation to pay interest exists only if one benefits from objects that are owned by the one who benefits (see Emek HaMishpat and the aforementioned article by Razan Goldberg, section 11, which proved that even benefiting from another's financial investment requires payment; although there is also no necessarily financial investment in a work of art). According to our approach, we say that if there is indeed ownership of information, then even if there is no complete legal prohibition of plunder or theft, there is still enough in it to establish the obligation to compensate by virtue of the interest payments that the beneficiary will be charged for.

It could still be argued that copyright infringement cannot be subject to a duty of restitution, as in the case of theft or plunder, since the information is still with its original owner.[39] However, we must take into account the argument that we learned from the discussion of the aforementioned Sanhedrin issue, that information constitutes property only if it is unique to its owner. This uniqueness is truly no longer present with its owner, and therefore there is a case for holding the one who infringes on the rights of creators to the duty of restitution. Even if in practice it is not possible to return the uniqueness of the information to the owner, it is like someone who has stolen an object that is no longer in his possession in person, and he must compensate the one who has stolen it with money.[40]

I. The consequences of suspending copyright in 'plagiarism'

Our words cannot answer all the situations that exist in the taking of copyright. After all, there is room to distinguish between a copyist of a cassette tape and one who distributes it commercially; between a copyist of software from a diskette he legally purchased, and one who copies without a diskette, or from the publisher's diskette; between a situation in which the publisher covered his investment or not; between a first and second edition; between a visual (image) or conceptual work; between Torah innovations and another work; between one who brings Torah innovations not in the name of the one who says them, or in his own name (moral right), and one who uses them for profit; between a truly new work and proofreading or annotations on an existing book; between copying with the original qualities and damaged qualities; between copying one song and copying the entire cassette. It is also necessary to discuss whether there is a prohibition? Is it obligatory to pay? Can it be bequeath? Can it be given or distributed? What is the ruling on the copy itself? And so on.

However, our proposal, by linking the matter to the concept of 'plagiarism', aims to shed light on several points on the issue of copyright, and we will address them briefly:

1. First, on the academic-principle level: The principled problems that Navon points out in his article do not exist according to our proposal. If we are honest, there is a possibility of basing copyrights, as well as any other intellectual property, on Torah law.
2. The author of Emek HaMishpat (11) notes that the purchase and inheritance of rights cannot be done without their being carried on a tangible object. However, in our opinion, there is room to say that it is possible to buy them even without the concrete object (and there are poskim who believe this). This stems from our claim that what is required by the law regarding a concrete object is only true in abstract identities that are 'carried' on tangible objects. On this matter depend the disputes regarding the inheritance of copyrights that are not printed and do not exist in any other tangible form (for example, Torah innovations or a sound idea).
3. According to our view of the Sanhedrin issue, only individual information is considered property in halakha. Therefore, information that is published publicly (as opposed to information that is sent to someone privately, as discussed in the above-mentioned hakaqi-lev) would not seem to be prohibited from being taken and used, even if this was stipulated at the time of publication (or there is an implicit assessment that the owner so stipulated). After it is published publicly, the information no longer constitutes the property of its inventor.

Of course, there is room to discuss the distinction between a 'discoverer' and an 'inventor.' The discoverer uncovers laws of nature, and it is difficult to prohibit technological or theoretical use of the laws of nature that someone has discovered from the standpoint of plagiarism. But an inventor has created a new creation in the world, and it is considered his property.

4. In Chapter 6 we saw that there is also a duty of restitution for the individuality of information, which is also considered an 'asset'. If indeed the individuality of the information is the property that was damaged, then there is a duty of restitution as in the case of financial robbery and theft, and not just the obligation to pay interest (which can also exist). Accordingly, when there is a possibility of returning the individuality of the information to its original owner, it seems that this must definitely be done. For example, when the copier has a disk or a printed book in his own edition, he must destroy them, or at least erase the information from them. The payment of compensation is only a means of restitution, and this only if there is no practical way to return the individuality to its owner. See also Emek HaMishpat 28, Su-A, which discusses this issue, and states that he cannot be forced to return or destroy the tape. His assumption is that the prohibition and the obligation to pay are from the beneficiary. And in our opinion, this does not seem to be the case.
5. Furthermore: If payment is indeed a beneficiary right, then in every case we deal with, it must be discussed whether the injured party is lacking, so that the harming party is not obligated to pay. For this reason, the scholar of the depth of law comes to use the 'rooted' law, which requires payment even without a disadvantage.[41] However, if the obligation is indeed a law of restitution, as in ordinary theft, then there is an obligation to pay even if the victim is not missing, since he lacks the individuality of the information.
6. In any case, it is clear that this can also affect the assessment that determines how much to pay. According to our words, the assessment is based on the value of the individuality of the information (although this is not easy to put into words), and not on the concrete loss. See also Emek-HaMishpat in the third part, which discusses at length the assessment of payment in the various drawings.

[1]. See more on this in Prof. Nachum Rakover's book, Copyright in Jewish Sources, Jerusalem 1991 (hereinafter: Rakover). Also in Rabbi Yaakov Avraham Cohen's book, Copyright, which is volume 4 of his series of works, Emek HaMishpat. For a concise review of the essential problems on the subject and for additional references, see Haim Navon's article, 'Copyright in Halacha', Tzohar 7, Summer 1991 (hereinafter: Navon). A few additional references will be mentioned below.

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

[3]. There was reason to consider that even if there is no clear source – neither in the Torah nor in the words of the Sages – for the principle of copyright ownership, and even if we do not have the authority to demand sermons from the Scriptures and to establish new regulations, there is still reason to believe that if the Sages had lived in a world where the question was relevant (for example, today), they themselves would have prohibited it (this is implied by the words of the author of Shoal-Vamshiv and Rabbi Elyashiv, whose words will be quoted below at the end of Chapter 1). A similar opinion was presented in the Responsa Igrot Moshe Oracha Ch. 4, 65, regarding the use of a Sabbath clock for the purpose of operating electrical devices – if this had been the case at the time of the Tannaim and the Amoraim, they would have prohibited it, just as they prohibited saying something to a non-Jew. From this comparison, it can be learned that this may have been prohibited even by the Torah! For in Beit Yosef (Och. Suf. 6 Ramad) it is cited in the name of the Samag (Levin 8) that telling a foreigner is forbidden from the Torah ("No work shall be done"). There is still room for debate as to whether the author of the Agam intended that the prohibition of automatic operation (Shabbat clock) is included in the prohibition of telling a foreigner and that it is an expansion of the prohibition, or whether this is an additional new sermon from the same verse. Below, in the remainder of this article, we will propose that the prohibition of violating copyrights stems from the prohibition of plagiarism, and there is also room for debate regarding this: Even if the prohibition of violating copyrights is included in the prohibition of plagiarism as it is defined today, it is possible that if Chazal were alive in our time, they would have included the prohibition of violating in the prohibition of plagiarism, and perhaps demanded a new sermon from the verse "You shall not steal" - do not violate the creative rights of another.

On the other hand, some argue that precisely because there is no reliable source in the Sages forbidding infringement of creator rights, and the entire prohibition is derived solely from Gentile culture, it is clear that there is no prohibition in it. See Navon (especially around note 11), and Rakover on p. 91, who quoted Rabbi Munk in the Responsa Pat-Shadach, 6 Kanah, that the exception is simply a bi'eta in kotcha (so!).

[4]. In his article 'Copyright', Tecumin 6, 1985, p. 179.

[5]. This was emphasized in the responses to Parashat Mordechai (Benet) H.M. 37, and more. Some have defined that in the matter of copyright the 'state' is the entire world, but it seems that this is a formal definition that does not answer the essential problem.

[6]. Rabbi Goldberg, in his article 'Copying from a Caste Without the Owner's Permission' (Techumin 6, 1985, pp. 207-185), expands on the possibility of using the basis of enjoyment payments. See also the aforementioned article by Chaim Navon, and in Emek HaMishpat.

[7]. See the aforementioned article by the Razan, section 11.

[8]. There is room to distinguish between unique knowledge and invention, and we will comment on this briefly below. On this matter, see Emek-HaMishpat. Below we will also see the poskim's reference to the degree of novelty in the work in question.

[9]. See, for example, the article by Rabbi Bar-Ilan Tecumin 7, 1986, pp. 360-367, and by Navon.

[10]. The discussion here is a principled halakhic one. A prohibition on violating the rights of the creator can be seen from the law of the kingdom, or from the consent of the artists, situmata, etc. Our concern here is a principled halakhic perspective regarding the rights of a creator over his creation, even if he and the user of his creation both live on a deserted island.

[11]. And according to them, the words of the poskim who have forbidden the infringement of the copyrights of authors of books by boycotts and regulations, etc. (including the Reka and the Hatas and the Rasham, etc.) are not valid. And see Emek HaMishpat, 320, cited by Rabbi Wezner, who explained that they meant only books that do not contain any creative innovation. And this is a great emphasis in their language, as explained there.

[12]. It seems from their language that there is no intention to anchor the law itself in the Dina of Malchutah, since in this matter what determines is only the law of the country in question. It seems that they intend to bring evidence for their understanding from what is accepted in all legal systems in the world, and to conclude from this regarding the approach of the law itself. The author of the Responsa Pat-Hasadeh (see above, p. 3) cries out bitterly about this, and sees it as a mistaken borrowing from the laws of the Gentiles and the customs of the nations.

[13]. For the author of Emek Ha-Mishpat in the Makhak, he exaggerated a bit in this. This determination depends on the different understandings of many complex issues, such as: something that never came into being, the purchase of fruits, rent, the purchase of things and a commitment, and so on. From several of the first and last verses it appears that the problem is ownership, and not just the application of ownership. The issue of the remainder, which he discusses at length, is only one of the relevant issues. Although the Rashba's response regarding the remainder, which is cited there, and several more Rishonim there, does indeed prove what he says; however, it is difficult to assume that all scholars will admit this, especially since it has no source in the Gemara issue itself (even from the Rashba's own words it seems that he raises this as his own explanation). See also the commentators on the issue of the remainder (22 pages 63 and 50), and in the Tosho'a and the Nok'a Hom, rt,6 and ri'd,5).

We will give here just one example of many. The author of Netivot Ha-Mishpat Reu, 4 (also cited in his book, 24) wrote that if a person has ownership of something that has substance in it, then it is clear that he can also bequeath it, since there is no reason to say that after his death it will become unclaimed. And in the dispute of the Rishonim regarding the inheritance of air above a courtyard or house (the Mordechai and the author of the decoration cited in the Rama there believe that the air is inherited, and the Ran believes that it is not), in which most of the Rishonim take the view that it is impossible to bequeath air that does not have substance in it, meaning that there is no ownership in it at all, although according to the Netiyam, it would also be possible to bequeath it. This is also somewhat evident from the intention of Maharam Shik in his dispute with the author of Machane-Haim (see Emek Ha-Mishpat 24). However, below, in Resh Chapter 4, when we discuss Maharam Shik's method of plagiarism, it seems difficult to understand him in this way.

It is also worth noting the group of poskim who believe that there is no ownership of a work (including Hatas, Reka, and Mahrasham, and others, all cited in Emek Ha-Mishpat 31:17-23), and he interpreted that they meant only compositions that do not contain any real creation; however, the simplicity of their words indicates that the problem is with anything that does not contain any real creation. It is possible that they meant only the words of the Torah, about which several poskim wrote that there is an obligation to communicate them to the public, and therefore only in them there is no ownership. And according to the rabbinic court, this should not be read as referring to other intellectual property rights in secular works. It is true that in Emek Ha-Mishpat 21:16 and onwards, he himself rejects this.

[14]. And see this also in the aforementioned article by Rabbi Goldberg, and in the aforementioned response by Rabbi Bar-Ilan.

[15]. If there is indeed a possibility of ownership of such entities, it is difficult to see why there is no consensus to apply ownership, and it is certainly difficult to say that there is no property act defined in the law for them. Therefore, Emek HaMishpat's division is difficult to understand, and it is certainly more difficult to say that this new foundation is agreed upon by all scholars (as he claims above).

[16]. See, for example, the above quote from Rabbi Wesner, in Igerot Moshe O'Ch. Ch. 4, 34, 19, and in Shadi Hamed, the Alef Shiuri Ha-Pah'a collection, including La, and in Machane-Haim, cited in Shadach, and more. See also Magen Avraham, 2, Reka, and Sha'ari-Teshuvah, there, under the title Tanachuma, reading D'al Tezul Dal. This is cited in agreement with the book Ha-Bachor, which is cited by many as the first source for the prohibition of copyright infringement, which is that printing without permission is stealing. See Rakover, p. 130.

[17]. He claims that the basis for the prohibition against benefit is theft. See also the aforementioned article by Rabbi Goldberg (Techumin 6:12/), who proved (at least with regard to the obligation to pay) that this is not the case. In any case, our question about the author of Emek-Ha-Mishpat is related to the Dukhata.

[18]. And see the dispute between Maharam Shik, Machane-Haim and Shadi-Hamed, which was brought up in Emek Ha-Mishpat, 34. And according to our opinion, A.S. is very good.

[19]. See Avnei-Milouim Teshuvah 21, Yaakov Nedarim 34. Below we will note that such an understanding is necessary in the opinion of the aforementioned Shadi-Hamed in what was divided on Maharam Shik.

[20]. In Emek HaMishpat, 33, he wrote this division in order to clarify the opinions of those who disagree who believe that there is no ownership of a work.

[21]. For a detailed review, see the Talmudic Encyclopedia entry 'Intellectual theft'.

[22]. See the Talmudic Encyclopedia, ibid., note 12, and the Mahadir LeRitba, ibid., note 258.

[23]. It is true that several poskim have already noted (see the Talmudic Encyclopedia, loc. cit.) that plagiarism is mainly involved when the seller demands a realistic price for the goods. That is, he sells an object with a defect, but takes the lower price of a defective object for it. If he were to charge a price for an undamaged object, there is fraud here, and perhaps outright theft. And according to the Jewish Law, it could be said that here too there is a matter of theft of goodwill, since the buyer receives an object that he considers to be a complete object at a discounted price, and in that case goodwill is created in him. However, beyond the fact that the poskim do not state this, it is clearly seen that even when there is fraud, there is a prohibition on plagiarism, although in this case there is no goodwill at all.

[24]. As we will see below, this is where plagiarism differs from lying – any statement that is not true is a lie, but it only becomes plagiarism when the information “belongs” or “deserves” the one from whom it is being withheld.

[25]. According to our words, Rashi's definition of theft of knowledge as taking gratitude for free can be a possible (but not necessary) example of theft of relevant information. Perhaps gratitude itself is indeed stolen here, but this is an example of the theft of a person's 'knowledge.' Both theft of information and theft of gratitude are examples of the theft of knowledge.

[26]. It should be noted that the Ritva is not troubled by the intrinsic connection between plagiarism and ordinary plagiarism, but only by the fact that ordinary plagiarism in relation to a non-Jew is controversial, while plagiarism in relation to a non-Jew is prohibited even from a non-Jew. This in itself indicates, as we said above, that the Ritva sees plagiarism as the basis of theft – the theft of the other person’s plagiarism. And this is according to his view, which we saw above, that the prohibition of plagiarism is learned in a complete sermon from ‘You shall not steal.’

[27]. It would be appropriate to say that there is no prohibition at all, only that the law of "for you" does not apply, but Rabbi Shekap did not interpret it that way.

[28]. In S. Bnei Issachar, Derech-Pekudich 353, part 4, he wrote that reciting someone else's Torah innovations in my own name (violating the moral right of the creator) is theft of a soul (at least when one does so for the sake of honor or money). On this subject, see also the article by Rabbi Yisraeli in Tecumin 4, 1983, pp. 354-360. The connection of the matter with theft of a soul intensifies the relationship between theft of knowledge and matters of theft.

[29] A lie that is not plagiarism would be when a person lies about information that does not 'belong' to another, that is, information that he is not necessarily entitled to know.

[30]. See above note 18.

[31]. Look carefully at his language there, which is proven as we have said. And see also the language of Ibn Ezra in Genesis 32:20 and more.

[32]. This is evidence of the author's understanding of Maharam Shik's opinion mentioned above, that ownership also applies to ideas, and his dispute with Baal Machane-Haim revolved only around the possibility of usurping ideas.

[33]. See ibid., first title, chapter two, and especially in notes 8-9. See ibid. below, which discusses the question of whether this definition is relevant even when the person does not mention the name of the innovator, or only when he attributes the things to himself.

[34]. It seems to me that here the legend is a discussion according to Tomah, and this is a literal revelation of the Sages' attitude towards taking information, and not a direct interpretation. Therefore, it seems to me that here there is no obstacle to learning halakha from the words of the legend.

[35]. This is the case with a personal secret that is known in the book of Efi Telta, which for some halachic issues is not considered a secret. See, for example, Chafetz Chaim, Rabbil Gachilot, end of Rule 9, and Rabbil Lashon Hara, end of Rule 2.

[36]. The fewer people who have the information, the more 'worth' it is. Although this is only in terms of the amount of compensation, it is necessary to discuss this in terms of the prohibition. Interestingly, here too, an analogy can be seen to the law of Efi Telta in the Rabbinic Law and the disclosure of a secret. See the well-known words of the Rashbam in the 2nd chapter of the 39th chapter of the Rabbinic Law and in the commentaries, regarding the question of how many people know about the information and not as a secret that is permitted to be disclosed. And the Rabbinic Law Nami discusses this in the law of Efi Telta, and the words are ancient.

[37]. It is necessary to discuss whether this is a harm or a usurper. This question concerns the relationship between usurpation and harm, and so on.

[38]. See above note 3.

[39]. The aforementioned Shadach also wrote to distinguish between the sound of a shofar, in which there is no theft because the shofar can be returned, and rights in Torah innovations, which cannot be returned by anything.

[40]. If we anchor this in the law of the tortfeasor, and not in the law of the usurper or thief, this will be more easily understood, also in addition to the fact that the information itself is the property. According to this, the information is damaged and not stolen. And in our opinion, since the property is the individuality of the information, this can definitely be distinguished as theft or usurpation, and not necessarily as damage. See above note 37.

[41]. It should be noted that this innovation of Rabbi Shimon Shekap and the ends of the Hoshan are not generally agreed upon. Indeed, in Emek HaMishpat, 38, he discusses whether it is possible to be bound by the law of 'from your back', which is stronger than the law of 'from your roots'.