Simplicity, Lesson 4

This is an English translation (via GPT-5.4). Read the original Hebrew version.

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[0:00] Introduction to two conceptions of copyright
[3:31] The example of “Jerusalem of Gold” and the debate over theft
[4:37] The role of experts in determining musical similarity
[6:55] The question of tangibility in copyright
[10:09] The connection between patents and copyright
[21:23] Moral copyright versus proprietary copyright
[26:54] Torah-level robbery and the definition of tangible property
[29:13] Acquiring the sound of the shofar and its connection to theft
[31:18] Cutting a fig tree and the connection to theft in a commandment
[33:24] A debt document and the connection to stealing information
[35:24] Proof for deception at a workshop for jurists
[37:37] Practical examples of deception in everyday life
[46:47] Sales examples and property fraud in a car
[52:04] Defining deception as theft of information

Summary

General Overview

The text places the question of copyright within the broader issue of abstractions, and describes a shift from a proprietary conception to a teleological-social conception due to the difficulty of defining ownership over something abstract. It challenges contemporary halakhic decisors who define infringement of copyright as Torah-level robbery, despite Maimonides’ statement that something with no substance cannot be acquired, and suggests an alternative path: to read the prohibition of deception as a Torah-level prohibition against stealing information. From that, it argues that there is ownership over information, and therefore infringing copyright is taking information that belongs to someone else, with the possibility of monetary valuation based on the value of the information’s uniqueness.

Basic Approaches to Copyright: Proprietary vs. Teleological

The text presents two principal approaches: a proprietary approach that sees a creation as the property of its creator, so taking it is robbery; and a teleological or purposive approach that justifies protection in order to encourage creation and achieve social goals. It states that in today’s courts, the teleological approach is more prevalent, and that the proprietary approach is viewed as older and rooted in religion, with mention of John Locke and the labor theory. It attributes the shift to the intuitive and legal difficulty of defining property rights over ideas and information that are not clearly bounded.

The Problem of Tangibility and the Object of Copyright

The text sharpens the point that a disc and a book are tangible, but copyright does not deal with stealing the disc or the book; rather, it deals with the “information encoded” there and with the abstract content, such as the sequence of notes rather than the page on which they were written. It brings the story of “Jerusalem of Gold” as an example of the difficulty of determining theft when dealing with creative similarity that is not unequivocal and even depends on experts. It explains that disputes over musical similarity illustrate the problem of drawing boundaries and defining the protected thing itself.

Patents vs. Copyright and Moral Rights

The text presents a discussion about the distinction between patents and copyright, including the claim that with a patent, even a parallel and independent invention does not permit use if the patent is registered, whereas in copyright two independent creators may each hold separate rights. It quotes a passage according to which “copyrights protected against copying do not grant their owners an absolute monopoly over the protected expression,” and that someone who arrives independently at a similar expression owns rights in his own work, while noting that such a case is rare and requires proof that no use was made of the original. It distinguishes between a moral copyright that requires attribution of the work to its creator and a proprietary right relating to valuable use, and presents the rabbinic saying, “Whoever says something in the name of the one who said it brings redemption to the world,” as a moral maxim rather than necessarily a halakhic prohibition.

Maimonides: “A Thing with No Substance” and the Difficulty of Defining Torah-Level Robbery

The text cites Maimonides in Laws of Sale, chapter 21: “A person can transfer by sale or gift only something that has substance… but a thing with no substance cannot be acquired,” with examples such as smell, taste, and appearance. It emphasizes that in Jewish law there is a conception of factual truth as to whether ownership exists or not, unlike in the legal world where a legislative institution can establish property rights by force of decision. It asks how one can claim that copyright is Torah-level robbery when Maimonides denies ownership over an abstract thing, and argues that the quoted halakhic decisors (the Sho’el U’Meshiv via Rabbi Elyashiv, Rabbi Wosner) do not explain how a prohibition of robbery was created out of nothing.

Indirect Halakhic Solutions and Their Limits

The text lists halakhic workarounds that have been used to protect copyright, such as expansions of encroachment on livelihood, payment for benefit, “one who acts contrary to the homeowner’s intent is called a robber” in the name of Rabbi Zalman Nechemia Goldberg, and dina de-malkhuta dina. It states that such mechanisms are not identical to defining something as Torah-level property, because “that is not in our hands” without an explicit source. It describes the structural difference between general law and Jewish law in that in Jewish law there is no legislative institution for Torah law other than the Holy One, blessed be He, through the Torah.

“Emek HaMishpat” and the Claim of Ownership Without Transferability

The text describes the book Emek HaMishpat by a judge from Netanya (Rabbi Cohen) as an antithesis to the claim that copyright infringement is Torah-level robbery, and cites him as arguing that there is ownership over something abstract, but it cannot be transferred, sold, or acquired, and therefore cannot be robbed either. It argues that this claim is not practically useful for protecting copyright, because the point of rights is to prevent taking and use. It notes that there is some hint of such a view in Rashba, but argues that the accepted tendency in the Talmudic passages and among the medieval authorities (Rishonim) goes against it.

An Alternative Possibility: “No Substance” Was Said About an Abstract Feature Attached to Something Tangible

The text proposes a line of reasoning according to which the examples of “a thing with no substance” are abstractions attached to tangible objects, and therefore the problem is separate ownership over the attached feature, not ownership over it as part of the object itself. It formulates this by saying that whoever owns the apple also owns its smell, but one cannot detach the smell from the apple and sell it independently. It cites Maimonides in Laws of Shofar regarding the sound of the shofar as a thing with no substance, and integrates this into the discussion of a commandment fulfilled through a transgression and the distinction between robbing the object itself and making use of its fruits or sound after the robbery.

Reversing the Primary and the Secondary in Copyright

The text states that in copyright the relation between the tangible and the abstract is reversed: the disc is secondary and the information is primary, because the disc is cheap and the economic value lies in the creation and the content. It rejects comparisons such as a debt document on the grounds that the document is evidence and not the essence of the debt, and distinguishes between “letters are acquired through transfer” and ownership over information as such. It presents copyright as a clear example of an abstraction that is not secondary to the tangible; rather, the tangible is secondary to it.

Deception as the Source for Ownership of Information

The text turns to the topic of deception in Chullin 94a and cites the responsum Chaim Sha’al by Rabbi Chaim Palaggi, according to which opening another person’s letter violates the ban of Rabbeinu Gershom and is also deception, a Torah prohibition, because the ban reinforces existing prohibitions. It describes two groups of examples of deception: examples of creating a false social impression (inviting someone to a meal when the host knows the guest will not come, or opening a barrel that would have been opened anyway), and commercial examples in the laws of sale (such as selling a car without an engine without disclosure, even if the price is fair). It notes that deception appears in Maimonides both in Laws of Character Traits and in Laws of Sale, and that according to most approaches it is a Torah law derived from “You shall not steal,” and that according to Maimonides it is forbidden even toward a non-Jew, with the Ritva’s difficulty on Tosafot in that context.

Critique of Rashi and a Proposed Definition: Deception Is Theft of Information Due to Another

The text presents Rashi’s interpretation that deception is stealing gratitude, but argues that this is not a definition but an example and an indication, because there are cases of deception without gratitude, such as opening a letter or distributing charity contrary to the ruler’s designation and concealing the matter from him. It formulates a general definition: deception means stealing information, and the distinction from lying is that not all information is “due” to the person asking; lying about one’s age is not deception because the information does not belong to him, while concealing information that one is obligated to disclose in a purchase is taking information that is due to the buyer. It argues that deception lies on the axis between lying and theft, and cites the verse, “You shall not steal, and you shall not deny, and you shall not lie, one man to his fellow,” as a sequence that maps stages on that axis.

Copyright as a Halakhic Extension of Theft of Information

The text argues that infringing copyright is “taking information that belongs to someone else,” and if information can be stolen, then there is ownership over information and consequently a prohibition of theft or robbery with respect to it. It emphasizes that the monetary question is how to assess the value of what was taken, but suggests that the value is measured through the value of the information’s uniqueness and not merely as loss of earnings. It rejects framing lost profit as indirect causation and argues that earning capacity is an indication of the value of the information that was stolen.

The Uniqueness of Information and an Aggadic Proof from Rabbi Eliezer

The text cites Rabbi Eliezer in Sanhedrin 68a, “I learned much from my teachers, and I diminished from them no more than a dog licking from the sea,” in order to show an assumption that information can be diminished from its owner. It notes that Rashi interprets this as literary language, but proposes a substantive explanation according to which the value of information depends on its uniqueness, and when information becomes common property its economic value declines. It illustrates this with a surgeon or a patent holder who loses earning potential when many people know the same thing, and defines the “loss” as a decrease in uniqueness even though the information remains in the hands of the original owner.

Further Implications: Medical Ethics and Genetic Information

The text describes a medical ethics conference at Bar-Ilan where the speaker argued, on the basis of the same principle, for ownership over genetic information and for applying the prohibition of deception to the use of sperm or genetic information against a person’s will. It presents this as a direct continuation of the abstraction: forming one abstract principle out of existing halakhic cases, according to which there is ownership over information, with broad implications for copyright and medical ethics.

Full Transcript

[Rabbi Michael Abraham] We’re in the topic of abstractions. Last time I started talking about intellectual property, copyright, and I gave a kind of very concise general introduction, of course, to two basic approaches that exist in this issue both in the legal world generally and in Jewish law. One approach is a proprietary approach, which says that a person has some rights over his creations, over his ideas, in the sense that he is their owner. Okay? He has property rights in the thing. And then, of course, someone who takes it from him is a robber. In other words, he’s taking someone else’s property. The other approach, which is the more popular one, and as the years and generations pass, right, in recent years it’s much, much stronger—in Israel there were still inclinations in both directions, but for quite a few years now it’s already very clear that the second approach has taken over—and that is the teleological, purposive approach. The approach that says it is proper to protect the rights of creators in order to encourage creation, in order to…

[Speaker B] And not because it’s his property?

[Rabbi Michael Abraham] Right, no—there’s no conception that this is their property. We’ll decide that it’s forbidden to infringe copyright because we want to achieve one social goal or another.

[Speaker B] Does that find expression in the wording of the law?

[Rabbi Michael Abraham] I don’t know the law, and I also don’t know whether there is a law and what it says.

[Speaker B] Israel does have a copyright law. There is, there has to be. I just don’t know.

[Speaker C] Also—

[Speaker B] If there is, it’s relatively new.

[Rabbi Michael Abraham] These debates started much earlier. I don’t know; I’m not expert in the matter of the law here. In any case, in the approaches of the courts it’s clear—that I’ve read a bit about, and that I know, because when I wrote about this I wrote it quite a few years ago, but at the time I also read some. And the more prevalent approach today, as I said, is the teleological-social one and not the proprietary one. That itself already calls for explanation. Why? Why indeed don’t they go in the proprietary direction but rather in the social, teleological, or utilitarian direction, however you want to put it? And here one can hesitate, but I think the basic intuition is the same intuition that troubles halakhic decisors too: there isn’t really any concrete thing here over which you can define ownership. Over a tangible object, jurists will say it’s easy to define ownership; people of Jewish law will say that ownership can be defined over it because from a legal standpoint anything is possible—whatever you decide is what will be. In Jewish law there is some conception that there’s a right and a wrong here, some kind of fact. Either there is an acquisition or there isn’t an acquisition. We talked about that another time, yes, about the differences in thinking in this context. In any case, I think the reason why conceptions move away from the proprietary direction toward the teleological direction is that there really is a problem defining ownership in something so abstract—something that’s quite hard to define, quite hard to delimit, quite hard, right? The clearest story, I think, in this regard is “Jerusalem of Gold” by Naomi Shemer. And there were very serious arguments there over whether she had really taken something from someone else. When I heard the Basque original and “Jerusalem of Gold”—I’m an untrained musician, of course, and I don’t know how one determines exactly how unequivocal the similarity is between the musical motif—if I were sitting there without experts and without anything, just me, I would never have imagined that there was really theft here. There’s some similarity, okay, fine. Anybody can think of…

[Speaker D] But even “Hatikvah” it’s understood was stolen.

[Rabbi Michael Abraham] Yes, that’s from some classical piece, yes yes, right.

[Speaker C] In any case, is there something tangible here?

[Rabbi Michael Abraham] Is there—

[Speaker C] Is there something tangible here that can be examined?

[Rabbi Michael Abraham] No, I don’t think so.

[Speaker C] So again, maybe you need experts, but are they experts in something subjective, or in art…

[Rabbi Michael Abraham] Experts and non-experts—

[Speaker C] That’s a different question from tangibility and intangibility.

[Rabbi Michael Abraham] I agree that experts may know better how to decide—

[Speaker C] Whether—

[Rabbi Michael Abraham] whether the similarity is significant. It’s clear that experts know better. Not because they’re… You can debate whether an expert knows better how to determine whether the music is beautiful. Beautiful in his eyes; in my eyes it isn’t beautiful. But regarding professionalism—that is, how similar it is and how likely it is that this similarity was created by chance—I assume an expert does that much better than a layman, right? Than someone who isn’t a professional. Yes, right, that’s why I say that. But the fact that there was an argument over this means that apparently even among experts it wasn’t something unequivocal. In the end they ruled that yes. That is, that there was some kind of theft here, I think, although that was already after her death, I don’t know. Huh?

[Speaker G] A matter of a tangible sequence?

[Rabbi Michael Abraham] So I’m saying, you can argue—who decided? But the fact that even in the general legal world, and certainly in Jewish law—in Jewish law it is written, yes, that you need a tangible object—apparently this still bothers the legal world too, even though they speak about both approaches quite freely overall, the two conceptions; still, the fact is that the center of gravity is moving toward the teleological direction. They’re slowly abandoning the proprietary conception; it’s seen as an old conception, and by the way its roots are religious. John Locke, it seems to me, is perhaps the philosopher they often rely on—the labor theory of John Locke and so on—which has distinctly religious roots. And truly, in a world detached from thinking—I don’t know whether specifically religious or metaphysical or however exactly to call it—it’s apparently harder to define ownership over such a thing. It’s a kind of abstract thing: you have an idea, you have this—okay, what does that have to do with ownership? With property? I mean, how do you define ownership over such a thing? You can say: clearly there are important social considerations for preserving the creator’s rights—or not allowing infringement, but rather defining a creator’s right and thereby preserving it; first of all define it in order to preserve it, in order not to allow infringement. Because without that, people won’t create.

[Speaker G] Is music tangible?

[Rabbi Michael Abraham] So I’ll talk about that in a moment, in just a moment. So the problem that troubles people in the context of copyright is the question of tangibility. We also saw this in Maimonides. Maimonides, in Laws of Sale chapter 21, writes: “A person can transfer, neither by sale nor by gift, except a thing that has substance; but a thing that has no substance cannot be acquired.” How so? “A person cannot transfer the smell of this apple, or the taste of this honey, or the appearance of this crystal,” meaning appearance, taste, smell—things like that cannot be transferred, because that is not a tangible thing, not a thing that has substance. Here we need to pay close attention. Obviously a disc is a tangible thing. A book is a tangible thing. But ownership of copyright, or the discussion of copyright, does not deal with discs and books. After all, if I steal a disc from someone, they’ll punish me as a thief; that has nothing to do with copyright at all. I can steal the disc not only from the creator, but from someone who bought it. I’m still a thief. Copyright exists only with the creator, or of course with someone to whom he transferred that right. That means this right can be transferred, and then that right exists—by the way, that’s one of the implications: whether this right can be transferred and exactly how. If it’s proprietary, then that’s relatively simple. If it’s a social device, it’s less simple that you can transfer the right. But you can. That is, infringement of copyright is always against the creator and apparently—or according to most views—also against someone whom he decided to give those rights to. But if I took a disc from someone who bought it in a store, then I’m a thief of a disc; that has nothing to do with copyright. Copyright, the other side of the same coin—if I bought the disc but now I use it not just to listen to it, but I record it, distribute it in various places, play it in public places, or a film, or music, whatever it may be—that is copyright infringement, even though I bought the disc. Because the object of copyright, or the thing around which it revolves, is not the disc. It is the information encoded on the disc. Now that information can be encoded on a disc, it can be encoded on a computer, it can fly through the air—I don’t know exactly what. How do you define what information is exactly? Here we arrive at tangibility. Even the music—when I hear the music, even if we say that the vibration waves in the air, right, the sound wave that passes through the air and creates in me the sensation of music—even if you call that a tangible thing, in Jewish law it is certainly not a tangible thing, but that’s not what we’re talking about. That’s not the point at all. The point is the notes—and again, not the page on which the notes are written. The abstract sequence of notes, not insofar as it is written somewhere. That sequence of notes that the composer decided on, that the composer invented, created—that is the thing copyright deals with. Okay? Not a particular page on which it is written, not a disc on which the piece is recorded as played by somebody, none of those things, but rather the abstract thing. Yes, a patent is also a kind of copyright. And therefore, when we talk about the tangibility or intangibility of the object, if we call it an object, the question—

[Speaker B] Patent is a more complicated story. Because with a patent, if you came up with some idea and registered a patent on it, and someone else somewhere, in the next town over, didn’t see it, didn’t hear it, didn’t take anything from you, he also invented the idea, then he can’t use it.

[Rabbi Michael Abraham] And with copyright it wouldn’t be like that?

[Speaker F] Same thing, same thing.

[Rabbi Michael Abraham] I compose “Jerusalem of Gold” on my own. I’ve never heard Naomi Shemer in my life. What’s the problem?

[Speaker B] There is a problem. Same thing.

[Rabbi Michael Abraham] So what’s the difference between copyright and patent? You said there’s a difference between them.

[Speaker B] No, with a patent, even if you didn’t take it from there, you can’t use it.

[Rabbi Michael Abraham] Ah, there you—

[Speaker B] can’t use it.

[Rabbi Michael Abraham] Ah, I understand.

[Speaker B] Meaning, if you—

[Rabbi Michael Abraham] invented it simultaneously—

[Speaker B] and that’s the point of a patent, that you register a patent.

[Rabbi Michael Abraham] And that—

[Speaker H] Is that also how it works with copyright?

[Speaker B] You’re not allowed to—look, someone else invented that same patent and now he wants to commercialize it.

[Rabbi Michael Abraham] And with copyright it’s not like that?

[Speaker B] What do I mean, I wrote, I—

[Rabbi Michael Abraham] I now compose “Jerusalem of Gold,” I’ve never heard of Naomi Shemer in my life.

[Speaker B] I don’t know. Legally speaking, with a patent you need to register the patent. You have to register it, it’s recorded, and it also—

[Speaker E] It has a time limit. Do works have that too? Do you register for yourself a trademark?

[Rabbi Michael Abraham] I don’t know, I don’t know, we’d have to understand that. I’m not expert.

[Speaker B] You write a brilliant scientific article that solves some technical problem. You didn’t register a patent; I can—

[Rabbi Michael Abraham] There it’s a separate issue in itself, because a scientific article is placed at the disposal of the public by virtue of being such. Publishing it means putting it at the public’s disposal. That’s the meaning of publishing a scientific article. Therefore technological uses of a scientific idea, it seems to me—again, I’m not speaking from clear knowledge, but that’s how I recall understanding it once—there is no copyright on that at all.

[Speaker B] Copyright—if someone created something and I created it in parallel, I didn’t take it from him, I created it in parallel, then there’s no problem. And with a patent there isn’t? Who said there’s no problem? Why would there be a problem? Why, because he was first?

[Speaker E] Yes. Why not?

[Speaker B] There—

[Rabbi Michael Abraham] Ezra says there’s registration of a mark, Ezra says there’s registration of a mark on a work.

[Speaker E] You can also register a patent. And with a creative work not? So to whom do they give the right? To whom do they give the credit? To Watson and Crick?

[Rabbi Michael Abraham] No, that’s moral copyright.

[Speaker E] There are—

[Rabbi Michael Abraham] two things. They distinguish here between moral copyright—when you use a work, you have to mention who created it—and whether it may be sold.

[Speaker B] What? Don’t know?

[Rabbi Michael Abraham] Watson and Crick—

[Speaker B] who received great and abundant credit—

[Speaker E] they stole the idea from some young Jewish woman who, in order to curry favor with Maurice…

[Speaker B] The question always is—Naomi Shemer too was asked whether she took it from there. Not whether it’s the same thing. If she took it, copied it, then it’s copyright.

[Rabbi Michael Abraham] But if she didn’t copy it, I don’t know, I don’t know the law on that point.

[Speaker B] And the assumption there is that if—

[Rabbi Michael Abraham] if indeed it’s similar enough, then you don’t need to prove that she copied it, because obviously she copied it; this didn’t happen by chance. But because she copied it—no, but that’s why I’m not sure, I don’t know, we’d have to check; I don’t know the law. But it’s definitely possible that if the similarity is sufficient, regardless of whether she copied it.

[Speaker B] And because with a patent you have to register a patent, if you don’t register a patent—

[Rabbi Michael Abraham] Ezra says a work is also registered, as a mark.

[Speaker G] I looked at copyright in a book out there—so many chapters and regulations, I just looked at it now. No, no, try to think.

[Speaker F] Someone wrote a book and someone else wrote exactly the same book. If he wrote exactly the same book, there’s no such thing.

[Speaker B] There is such a thing, and then obviously, obviously he copied.

[Speaker F] Why obviously?

[Speaker B] He says, I didn’t copy. Why obviously? Because the probability—the probability that he didn’t copy a book written exactly the same over 300 pages, the probability is one in a billion.

[Rabbi Michael Abraham] Shimon, that’s another explanation. That’s another explanation of the difference.

[Speaker B] That with inventions you register a patent—

[Rabbi Michael Abraham] So that’s another explanation of the difference. That with a melody or a book, with an artistic creation, if you produce exactly the same thing then you copied it. With a patent there’s a chance of inventing the same thing without knowing about the other one, and therefore you need registration, because you can’t—you have no control, you can’t know whether he copied or not.

[Speaker B] But what does that mean?

[Rabbi Michael Abraham] That if you copy, I understand—but I’m only telling you that even if there is a difference, even if you’re right that there’s a difference, the difference is not essential. It’s just a question of complexity or the likelihood that it would arise by chance through similarity.

[Speaker B] It is essential, because with a patent, if you didn’t—if you didn’t steal, didn’t copy—then with a patent it doesn’t matter that you didn’t copy.

[Rabbi Michael Abraham] I understand, Shmuel, but I’m explaining.

[Speaker B] But with a creation, if you didn’t copy, then it’s yours just as much as his.

[Rabbi Michael Abraham] I understand, but that—

[Speaker B] is not a principled difference.

[Rabbi Michael Abraham] That’s what I’m trying to explain. Wait, I’m explaining. If it’s word for word. And I’m claiming that even if you’re right that there’s such a difference, it still may be only a technical matter. Why? Because if there is a book, and I write War and Peace in its four volumes, yes, by myself. Okay? Then obviously I copied it. So therefore—wait—therefore they don’t even require me, basically, to register, because all right, it’s obvious. And if the similarity is not unequivocal similarity, then no.

[Speaker B] And suppose it wasn’t War and Peace, because that’s not a book that would happen with, but some melody. Suppose at the very time some melody was composed, I was on an island, and I can prove I was on an island completely cut off from the world, absolutely nothing, and I came out of there, a ship came and took me, and I brought with me what I’d written there—a melody, War and Peace.

[Rabbi Michael Abraham] No, a very similar melody.

[Speaker B] Okay. Does anyone have a claim against me?

[Rabbi Michael Abraham] So I said, it may be that this stems from the fact that the character of a work is such that you don’t need to protect it because it’s obvious when you copied and when you didn’t. With a patent you need protection because, you know, great minds think alike. That is, great minds can invent the same thing independently. So in order to protect the person, you have to maintain an orderly registry. With a work, that won’t happen.

[Speaker B] But I don’t understand what you’re saying. With a work I’m saying in principle: if two people create the same work and didn’t copy—

[Rabbi Michael Abraham] If you listen to what I’m saying. I’m listening. There’s a chance you’ll understand.

[Speaker B] I’m listening. No, you didn’t listen.

[Rabbi Michael Abraham] Because you keep repeating the distinction that I agree with. I’m claiming the source of the difference is what—

[Speaker B] what you’re saying is correct.

[Rabbi Michael Abraham] There’s an essential difference? No, I’m claiming the difference is only on the practical level. You’re simply digging in on the distinction.

[Speaker B] The difference is an essential difference. Why are you digging in on the distinction? Okay. Why are you running away? Why are you running away? That’s exactly what I’m saying.

[Rabbi Michael Abraham] I’m trying to explain the difference you’re talking about and calling essential. I’m trying to explain why I think it’s not essential even though there is a difference.

[Speaker B] Why is he running away from battle? What did you say? Because he’s written articles so he understands the problem, whereas you’ve never tried to compose even three notes. If you’d written articles then fine. Because an article is an engineering document, it’s a technical document. I wrote documents. I wrote articles. Then you understand that if there’s a document with exactly the same letters, then you copied.

[Speaker D] There are creations—and that’s not what you said—creations where there’s no problem, everyone knows you copied. No, in certain creations. Shmuel is saying there’s a basic difference. We’re in the study hall.

[Rabbi Michael Abraham] Musical works are protected. Musical works are also protected. It’s just that Shmuel argues that this protection also works against someone who can prove that he didn’t steal, that he created it himself and it comes out identical to the source. Understand? No—that there it doesn’t work. Sorry, that the protection doesn’t work there. And with a patent it does.

[Speaker B] And that happens very often with patents, that they’re invented in two places. In the history of science there are countless examples. What? I didn’t understand. If I brought a book and someone else says, I wrote that same book alone and didn’t copy—

[Rabbi Michael Abraham] Am I not protected?

[Speaker B] That’s what—

[Rabbi Michael Abraham] Shmuel is claiming, yes.

[Speaker B] Am I protected?

[Rabbi Michael Abraham] No, Shmuel is claiming you’re not. No.

[Speaker B] Shmuel claims that if—

[Speaker F] you manage—

[Rabbi Michael Abraham] to prove you didn’t copy, that you created it completely on your own, then you’re not protected?

[Speaker B] What makes you better than him? Why? He wrote and you wrote. Why are you better than him?

[Rabbi Michael Abraham] The argument of “why are you better than him” is also true in patent law. It’s the same argument. There’s no difference in the reasoning here.

[Speaker B] It’s the same thing. No, no. With a patent too, you’re not better than him. But the law gave the possibility of preferring—

[Rabbi Michael Abraham] you in order to create motivation among people. Therefore your argument “why are you better than him” isn’t relevant, because that argument exists both in patents and in creative works. The law nevertheless makes a distinction. Why does it make a distinction?

[Speaker B] So what I said before: there’s a principled difference in implementation.

[Rabbi Michael Abraham] In implementation, yes—but it’s exactly the same idea.

[Speaker B] Fine, so we agree. Okay.

[Rabbi Michael Abraham] Good, so let’s continue. In any event, for our purposes the thing we’re talking about is something abstract. It’s information, it’s some kind of idea. Even if it is realized through some concrete medium, what matters is not the realization and not the medium; what matters is the content. Think of how it’s always… A wave is that energy that passes through the water and moves it. It’s not the collection of moving water—that’s the wave. Okay? By the same analogy, the information encoded on the disc or printed in the book is really the thing we’re talking about when we talk about copyright, not the book and not the disc. So this abstract thing, just as—

[Speaker D] Wait, wait, I think that’s not right. Because the information—let’s take some medicine, okay? The information that this medicine helps with something, okay? And you have a patent. Then what’s protected is not the information. Anyone can have that information today. But the specific actual thing is what is forbidden. Two things, two things. That’s what’s forbidden! No, no. Two things. But you’re saying it’s the information, so I’m saying the concrete essence is what’s forbidden, and not, as you say, the information itself.

[Rabbi Michael Abraham] Two things. First, I’ll get to that. That’s not precise, and I’ll get to it in a moment.

[Speaker D] No, I’ll grant you rights over music. Music is in your head and that’s perfectly—

[Rabbi Michael Abraham] Fine, but if I— I’ll explain. It’s not so simple. I’ll explain in a moment. I’ll explain in a moment. It’s not so simple. They distinguish between moral copyright and proprietary copyright. Moral copyright means that when you use a work, you need to indicate its source. In other words, who created it. Okay? Regardless of whether you’re making use of it, earning money from it or not, or just quoting it, or just—you need to state something in the name of the person who said it, say, something like that. Proprietary right is when you make use of it in a way that has value. In other words, when you derive value from it without permission, of course. And then it’s only when you actually derive value from it. But the moral right exists over the idea itself. When you say an idea that isn’t yours, not in someone else’s name—just tell someone, tell the public, say something not in someone else’s name because you present it as your own idea—you don’t make money from it, nothing, not even reputation for purposes of the discussion, nothing—still, you’ve infringed moral copyright. Or if you present a picture as though you painted it and not another painter. Okay? You didn’t profit, nobody paid you for it, nothing—you infringed moral copyright.

[Speaker D] On that we agree. I’m talking about the proprietary side.

[Rabbi Michael Abraham] No, but regarding the proprietary side we’ll still talk—I’ll sharpen that a bit more.

[Speaker E] According to what Shmuel said, then indeed there’s an article about the matter here: “The primary right of the copyright holder is, as stated, the right of reproduction. This right must be understood correctly. Copyrights protected against copying do not grant their owners an absolute monopoly over the protected expression. Two people who arrive at exactly the same expression, or at very similar expressions, by independent paths, without one seeing the work of the other—each one has copyright in his own creation. These rights allow…”

[Rabbi Michael Abraham] Okay, so that’s what Shmuel said earlier.

[Speaker E] And in such a case, the explanation is that it’s very rare, and he has to prove that he really didn’t use any source.

[Speaker G] Yes, maybe… yes, no… “Whoever says something in the name of the one who said it brings redemption to the world”—so you didn’t say you must do that.

[Rabbi Michael Abraham] No, no. “Brings redemption to the world” is a moral maxim, not a halakhic prohibition. Obviously. I’m saying: in law there is a moral right. In Jewish law I don’t know if there is a moral right. There are moral recommendations, but not a moral right. That is, moral right is a legal concept. You can sue someone: he infringed my moral right. Fine. In any case, that’s the thing that basically raises the difficulty. Now, in the legal world, this difficulty is easy to solve. Why? Because even if you don’t accept the possibility of defining ownership over an idea or over information, you have another route. The teleological route, the conventional route. Convention in the sense of agreement. In other words, let’s agree as if there were some property right here, or let’s protect it legally in one way or another, and everything is fine. Now, in Jewish law it’s more problematic. True, in Jewish law too they found all kinds of tricks for how to do this—some extension of encroachment on livelihood, payments for benefit, as I said, I spoke a little about “one who acts contrary to the homeowner’s intent is called a robber,” which Rabbi Zalman Nechemia Goldberg proposes, or things of that kind, and of course dina de-malkhuta dina. But to define this thing as property in the Torah sense—that is not in our hands. You need a source. It’s not something you can do because it seems logical to you. Therefore in that sense Jewish law operates a bit differently from the legal world. In the legal world, if the supreme legislative institution decides, then that’s the law. They have no limitations in principle. But in Jewish law there is no legislative institution. There is a legislative institution that created rabbinic laws, but the only legislative institution for Torah law is the Holy One, blessed be He, through the Torah. If you have a source, then there is a Torah prohibition. If you don’t have a source— I brought several formulations from halakhic decisors, mainly in our time and especially more recently, who speak about this unequivocally as robbery. Torah-level robbery, period. I read several such statements. From the Sho’el U’Meshiv through Rabbi Elyashiv, Rabbi Wosner, and so on. But none of them explains. Doesn’t explain why there is robbery here. Maimonides says that something with no substance cannot be acquired; there is no ownership over something with no substance. So how do you invent a prohibition of robbery out of thin air? What, do you have a source for that? There are explicit sources saying the opposite—not only is there no source for it. And without explaining, they just say: this is robbery, period. The book I used when I wrote the article—really an antithesis, that is, it’s a book by someone, Rabbi Cohen something, a judge, son of some Rabbi Nissim, from Netanya, who wrote Emek HaMishpat. He has a series of books called Emek HaMishpat on Choshen Mishpat; one of them deals with copyright, and there he brings many sources—there is also an expansion based on this book—and there he brings many sources, but he says there is no such thing: there is no ownership over things that are not tangible. He tries to suggest various constructions there, one way or another, but in the end he remains with it unresolved regarding those quotations I mentioned earlier, those decisors who say this is outright robbery.

[Speaker H] And among other things, one of the arguments—by the way, regarding digital matters—suppose I access a bank account through the computer, or in general all salaries and diamonds, everything is some kind of—

[Rabbi Michael Abraham] Yes, but that’s something else. Those are things you can call intangible, but that’s not copyright. I’m dealing with copyright. Other kinds of intangible things—you can discuss that, fine, that’s something else. Our subject is information or copyright.

[Speaker D] So what is Torah-level robbery?

[Rabbi Michael Abraham] Taking an object from someone, like “and he robbed the spear” — taking something. I come to you by force and take the thing from you. And robbery is about something tangible. Yes, something that is yours, and only a tangible thing can be yours, as Maimonides says: a thing that has no substance cannot be acquired, cannot be sold, and there is no ownership over it, okay? Now, one of the claims of this Emek HaMishpat is that there is ownership over an abstract thing, but you can’t transfer ownership of an abstract thing. You can’t sell it or buy it, and therefore you can’t rob it either. But ownership of an abstract thing does exist. That of course doesn’t help us at all for our purposes, because the whole point of copyright is protection against someone who takes. What’s the source? In which agreements? Doesn’t matter, I don’t even remember anymore. But that’s his claim. I have quite a few proofs against him; I don’t think he’s right. There’s some Rashba from whom it really does sound like him, but I think that in the accepted understanding, both in the Talmudic texts and among the medieval authorities (Rishonim), it seems he’s not right. But one could make a different claim. All the examples brought, both in Maimonides that I read, and in the Talmud — the Talmud speaks, for example, about the airspace of a courtyard as something without substance — they’re examples of abstract things that are attached to tangible things. Like the appearance of crystal, the smell of an apple, yes, the taste of honey, everything Maimonides says, or the airspace of a courtyard — these are all abstract things, or sometimes even properties of tangible things. And it’s entirely possible that when we say there is no ownership over an abstract thing, what that means is that there cannot be separate ownership over the abstract thing; rather, whoever owns the tangible object thereby also owns all the abstract things attached to it, all its properties. Meaning, this doesn’t say that I do not own the appearance of the apple. It says that you can’t detach the appearance of the apple from the apple itself. Whoever owns the apple also owns the appearance of the apple, okay? There’s an interesting question: Maimonides, in the laws of the shofar — apropos of the season — talks there about someone blowing a stolen shofar. So Maimonides says that since… I brought the quote there, where is it, I have the quote here. He says that the sound of the shofar is a thing without substance, and therefore there is no robbery in it, something like that, as I recall he writes there in the laws of the shofar. And there too — what does that mean? Is it because there cannot be ownership over the sound of the shofar? Or because ownership of the sound of the shofar follows after ownership of the shofar? You can’t own the sound of the shofar separately. But if the only problem is really that it’s subsidiary, then if I stole the shofar, I stole the shofar, and ownership — ownership of the sound of the shofar follows after ownership of the shofar, which I stole. Right, but as far as the commandment is concerned, the commandment is fulfilled by hearing the sound, not by the shofar itself. Now the question is whether this is called a commandment that comes through a transgression. Did the theft itself create the act of the commandment, or not? The theft was taking the shofar, but blowing it is producing a sound. Producing a sound is not a new theft. I committed the whole theft when I took the shofar from its owner. Now when I blow the shofar, that’s already after the shofar had become stolen. Now I’m just making use of it, because the sound is not something being stolen now as it is created; it is simply use, the yield of the shofar, the use of the shofar. Yes,

[Speaker H] According to this passage, you could say that if I put on stolen phylacteries, then since I’m not stealing the phylacteries when I put them on, but rather I already stole them beforehand, then that would also be okay.

[Rabbi Michael Abraham] Yes indeed. In a case where it’s not at the very same time — if you perform a commandment with something that had already been stolen beforehand — there is, you have to discuss that, it’s not so simple. In a place where fulfillment of the commandment is not bound up with the theft itself, but comes after it, that needs to be discussed. It’s not at all simple that this is a commandment that comes through a transgression. There are major disputes about this among the medieval authorities (Rishonim), and in tractate Pesachim, Rabbi David on Pesachim and others. In any case, there’s the case of “cut a fig from my fig tree” in tractate Bava Kamma 70, where they discuss “he receives only the greater of the two penalties.” So someone says to a person, “Cut a fig from my fig tree.” What does “cut” mean? Pluck it. This is on the Sabbath. So he violates plucking, and he also steals, because in fact those aren’t the speaker’s figs but someone else’s figs. There it really is a case where it has to come together, but that’s for the rule that he receives only the greater of the two penalties, not for a commandment that comes through a transgression. Okay, fine, but let’s get back to our issue. So there in Kesef HaKodashim they discuss this, okay. In any case, the claim is that maybe the fact that you can’t own an abstract thing is not a matter of principle. It was said only about things where the abstract component is attached to a tangible object. Now here there’s a very interesting point, because the clearest example of an abstract thing that is not like that is copyright. Because in copyright you’re talking about information — that’s entirely different. It’s not the information encoded on the disk; that’s not the point. The problem isn’t the use of the information on the disk; it’s the use of the information, period. The fact that you used it through the disk doesn’t matter; the disk could be yours, that’s unrelated. Here the disk is subsidiary to the… exactly. The genetic and temporal relation are reversed. What?

[Speaker G] It’s not temporal.

[Rabbi Michael Abraham] No, temporal…

[Speaker G] The relation is reversed.

[Rabbi Michael Abraham] The relation is reversed, but not because of time — because of importance, what is primary and what is subsidiary. And here it’s clear that the disk is subsidiary and the information is the… A disk costs a shekel. A disk costs a shekel; stealing a disk is nonsense. But for a work, you can pay many thousands of shekels if you infringe copyright. Meaning, this is something worth a lot of money.

[Speaker H] A promissory note. What? A promissory note is not exactly an example.

[Rabbi Michael Abraham] Why? Because with a promissory note, when you take the note, who said you stole the debt? The debt might be tied to the source. So you took the paper — so what? Only if you use the promissory note and deceive someone, or say that this promissory note testifies that the debt is owed to you. But a promissory note says to whom the debt is owed. It’s not… With a promissory note the problem is different. A promissory note is not — meaning, the information in the note is not the issue as information. The note is evidence, one of the pieces of evidence that the information is such-and-such. But if I knew that you owed me the debt not through the note, I would still be able to collect that debt from you. There’s nothing essential about the note.

[Speaker H] Also, in the Talmud there’s “letters are acquired by delivery.”

[Rabbi Michael Abraham] Yes, “letters are acquired by delivery” — so what? But that’s not the question of copyright. Ma’amad sheloshtan is a rabbinic enactment that a debt can be transferred in the presence of all three parties, but that’s not the problem of copyright; that’s a different matter. There too, maybe you could call a debt an abstract thing; the question is why it’s an abstract thing, but never mind. In any case, that’s not a matter of copyright; it’s not the information on the note. “Letters are acquired by delivery” really does sound like the letters themselves, as if the information — but “letters” means the note itself, not the letters written on the note. The note itself is called “letters.” In any case, this possibility exists — the possibility that says that… because the examples, at least as far as I checked, are always an abstract thing, an abstract thing attached to a tangible thing. Those really are the examples. Now, now we can discuss whether one can make a conceptual distinction and say that an abstract thing can indeed be owned, and everything written in Maimonides or in the Talmud or by all the halakhic decisors is only about an abstract thing attached to a tangible thing. It’s a logical argument; either it’s correct or it’s not. So we need to find a source for it. And on this issue, I think one can bring an interesting proof from the topic of deception, the passage in tractate Chullin 94. It’s interesting — once Rakover invited me to lead some workshop for lawyers. He runs these weekend workshops on Jewish law, so he once invited me to lead one of them. He’s a very orderly person, a real German Jew. So he sent materials in advance to prepare, because it was two days of learning, two-something days of learning. So to prepare ahead of time, and there was a schedule, what we’d do and based on which sources and everything. And among other things he sent me a responsum, Chayim Sha’al, by Rabbi Chaim Palaggi. He says to me, “This is a totally baffling midrash; I don’t know what to do with it,” he tells me. Rabbi Chaim Palaggi says that someone who opens another person’s letter — violating the ban of Rabbenu Gershom — transgresses deception, a Torah prohibition. What? Deception is lying; what is he violating here?

[Speaker D] That’s what the Rabbi…

[Rabbi Michael Abraham] Chaim Palaggi claims — that the ban of Rabbenu Gershom only came to reinforce prohibitions that already existed beforehand. It just strengthened them with a ban. Because people aren’t sufficiently aware that this is forbidden, so he strengthens it — that’s the whole move of Rabbi Chaim Palaggi in that responsum. The claim is, he brings several prohibitions involved there, not just one, but his claim is that Rabbenu Gershom reinforced it with a ban, but he didn’t invent the prohibition. Then he discusses what the prohibition actually is, and one of the possibilities he raises there is deception. Rakover says to me: What does he want? What does this have to do with deception? Deception is lying — what does it have to do with lying at all? That’s where the passage suddenly clicked for me. Afterward I wrote the article after that workshop — suddenly I understood the point. The passage about deception in Chullin brings two kinds of examples. One kind of example is a person who, say, invites his friend to a Sabbath meal, but he knows the friend is traveling away for the Sabbath, so there’s no chance he’ll come. He already heard that he was leaving. He invites him in order to show him how much of a friend he is and how generous he is with him and how much he wants to host him for a meal and how much he loves him, while knowing he won’t pay a penny for this because the guy is traveling. That’s one kind of deception. Or someone whose guest comes in and he says, “Look, I’m opening a new barrel of wine or beer in your honor,” when in any case he had planned to open it. Opening a barrel is an investment, because you have to finish it — it doesn’t keep. He had planned to open it anyway, but he presents it as though he’s being generous for the guest’s sake, like Abraham our forefather slaughtering three calves in order to serve three tongues with mustard to the angels there — the Arabs who visited him.

[Speaker G] Mushroom sauce?

[Rabbi Michael Abraham] Truffles. In any case, that’s one example. And the second example — and this appears in Maimonides, laws of character traits, where in Maimonides, as you know, “character traits” doesn’t mean worldviews, it means personal traits. Another kind of example is, say, in a commercial context, in the laws of sale. It appears in Maimonides in the laws of sale. The laws of deception appear in Maimonides in two places: in the laws of character traits and in the laws of sale. What happens in the laws of sale? I sell you a car and don’t tell you there’s no engine in it. It’s just a shell. Was there an engine? Yes, there was an engine, exactly. I sold you a car and didn’t tell you there was no engine in it.

[Speaker E] Now, obviously, in Roman law too the buyer had better beware. In Roman law the rule is: let the buyer beware. The buyer has to check everything.

[Rabbi Michael Abraham] In Jewish law it’s not like that. You’re supposed to tell him that there’s no engine. Now, in principle, it’s clear that with a car without an engine the problem doesn’t so much arise because that’s overreaching and the sale is void. So if the sale is void, what difference does it make? Fine, maybe you weren’t honest, but he has other protections — that is, he can return the car, you return his money, and that’s it.

[Speaker H] Depends at what price he sold it. Right, exactly.

[Rabbi Michael Abraham] The question is at what price. If he sells it to him at the price of a car without an engine, a cheap price, okay? The fellow thinks he got a bargain. He doesn’t tell him that it’s actually a car without an engine; it’s the real price of a car without an engine, to sell it for parts. Okay? That’s deception.

[Speaker I] Is that still a mistaken transaction in this case? No. Why? No. Because it’s deception, because there was no settled intent concerning what he was buying.

[Rabbi Michael Abraham] No, but since it’s worth money, I don’t think there’s a problem here. In sales, mistaken transaction is a very problematic business when the price is fair; you’ll almost never succeed in making it a mistaken transaction. Because if the thing in your hand is worth the money you paid, then nothing happened — you have money’s worth instead of money. So what? Something worth money is like money.

[Speaker I] Yes, but there was some deficiency in the information — meaning, I think I’m buying one thing.

[Rabbi Michael Abraham] And that’s deception. No, they even say — let’s say I buy a red car

[Rabbi Michael Abraham] and in the end he brought me a blue car. They’re worth the same money. Right. So I can say… do you want me to pay you back the money? No problem, take this car. I paid you with something worth money.

[Speaker I] Something worth money is like money. No problem, but does that still mean the sale is void?

[Rabbi Michael Abraham] No, therefore the sale also isn’t void. You can’t realize that. I’m paying you the sale price in the form of something worth money. What difference does it make?

[Speaker I] If I order, say, a red car and in the end he brings me a blue car. They’re worth the same money. Right. So I can say…

[Rabbi Michael Abraham] According to Jewish law, you can’t say anything.

[Speaker I] Yes, but I… sell this blue car.

[Rabbi Michael Abraham] Assuming you can sell it, at the market price, because today after you bought it it’s already second-hand. But suppose you can sell it at the same price — you can’t do anything from the standpoint of value.

[Speaker I] And is that even considered that the sale is void?

[Rabbi Michael Abraham] No, the sale is not void.

[Speaker I] Deception. You said maybe the sale is void only because he’s paying me with a car…

[Rabbi Michael Abraham] No, I’m only explaining the mechanism; therefore the sale isn’t void. Because you could call it “the sale is void, and I paid you with this very thing,” so there’s no point in defining it at all as a void sale.

[Speaker I] No, but if the sale is void, that’s what creates the deception.

[Rabbi Michael Abraham] What? I didn’t understand.

[Speaker I] Because if the sale is void…

[Rabbi Michael Abraham] then I didn’t deceive you.

[Speaker I] No, he said the sale isn’t void because there’s no practical difference, but here is the practical difference —

[Rabbi Michael Abraham] the practical difference is that if this is deception. Right, there is deception here. What do you mean?

[Speaker I] But I’m saying if the sale is not void and he says it is void,

[Rabbi Michael Abraham] then there is no deception. So I’m saying, but the sale… the explanation of why the sale is not void is that I can pay you with this car instead. But after the sale is not void, then suddenly giving you a blue car instead of a red one is deception. By the way, more than that: it could be that with a red car instead of a blue one, it perhaps wouldn’t even be deception.

[Speaker D] I don’t know, there’s room to hesitate here.

[Rabbi Michael Abraham] Because it’s not the same as selling you a car without an engine at the price of a car without an engine. Because blue and red really are the same thing — maybe it’s a matter of taste, but they really are two equal things. Here I’m not even sure it’s deception, I don’t know. Rabbi, I didn’t understand what this has to do with copyright? Deception, in simple words, is what people today call “pulling the wool over someone’s eyes.” Anything that’s pulling the wool over someone’s eyes is deception. Not everything. Why not? Wait, wait — we’ll get there, I’ll get there. That’s our topic. That’s our topic. I’ll explain — not before, afterward. I’ll explain it later. After I explain what deception is, I’ll explain what the connection to copyright is. Okay? This is just an introduction, yes. So those are the two kinds of examples, and there are several examples there in the Talmud. By the way, according to most positions, deception is Torah-level. The Ritva there brings in the name of Tosafot that they learn it from the verse “You shall not steal.” Because “You shall not steal” in the Ten Commandments refers to kidnapping, while “You shall not steal” in Leviticus refers to monetary theft, and deception is learned from monetary theft. Okay? That’s what the Ritva brings, and that’s also the accepted opinion among the halakhic decisors, and among the medieval authorities (Rishonim). There’s a Bach, I think, who wants to say it’s rabbinic, I don’t remember anymore, but in the simple reading it’s a Torah law according to most positions. Okay? Another thing, by the way, is that it’s forbidden even toward a non-Jew. And even according to the positions — that’s what the Ritva asks on Tosafot — there is a dispute among the medieval authorities (Rishonim) regarding theft from a non-Jew, whether it is Torah-level or not. And even according to the authorities who hold that theft from a non-Jew is not Torah-level, with deception Maimonides states explicitly that it applies also toward a non-Jew. And he asks on Tosafot: how can they derive it from “You shall not steal,” when the source does not apply to non-Jews, while what is derived from it does apply to non-Jews? Okay? That’s just by way of… In any case, that’s the definition. How do we define this thing — what is deception? So on one hand, in the simple sense it looks like a kind of lie. So why call it theft? More than that, there’s a Tosefta. In the Tosefta it says, in the Mekhilta on Mishpatim, in Tosefta Bava Kamma chapter 7, and also in the Mekhilta on Mishpatim: “There are seven thieves. The first — and in some versions, the greatest of them all — is one who steals people’s minds.” Meaning, it’s classified as a thief, one who steals people’s minds, not as a liar. And all the others there are really ordinary thefts, thefts in what we usually call theft. Meaning, deception is perceived as a branch of theft, a kind of theft. The question is why. Now, since there are two concepts here, it’s clear there are two concepts connected to deception. On one hand there is the lie, and on the other hand it is being compared here to theft. We need to understand the connection between these two and how together they create the concept of deception. Once I wrote some article about the metamorphosis of concepts. In principle one could go in the direction that says that theft, say as distinct from robbery, for example, contains an element of lying or concealment, right? There’s something like lying here, because you hide from the person that you’re taking from him, unlike the robber who comes openly and takes by force. So there is some dimension of lying in theft. But of course that won’t help us here, because clearly it would still have been correct to call this lying and not theft. So theft too has a dimension of lying — but in what sense does deception fall under the heading of theft? At most, it has the dimension of lying, just as theft has the dimension of lying. But what about the dimension of theft — what is there here? What does it have to do with theft, where is the dimension of theft?

[Speaker E] That you created for the person — you stole his mind — you created for him a certain picture regarding himself, that now he owes him something, for example, that you took from him some favorable opinion about you, so that now he feels he owes him.

[Rabbi Michael Abraham] Okay, that’s an interesting remark, because Rashi there in the passage writes something very similar, maybe even exactly the same thing. He claims — and he writes this in several places there in the passage, and all the halakhic decisors later copy him — that deception is theft of gratitude. When, say, you invite someone to your home and open a barrel for him, then he feels gratitude toward you: look what a good friend I have, he invites me to a meal and all that — when really you don’t deserve that gratitude. So theft of gratitude is called deception. That’s how it appears from Rashi there.

[Speaker B] By the way, stealing gratitude, yes.

[Rabbi Michael Abraham] Now first of all, the term itself — what is “stealing the mind”? It’s a bit strange. Wait, look for a second. Second, the examples from the laws of sale. You could maybe say, I have gratitude because he gave me a cheap car, and he doesn’t deserve that gratitude because it has no engine. I don’t know — very quickly that gratitude will disappear.

[Speaker B] When he discovers there’s no engine there, then he won’t feel gratitude but the opposite.

[Rabbi Michael Abraham] Exactly. That’s second. But third, there are explicit examples both in the Talmud and among the medieval authorities where we have cases of deception and gratitude simply doesn’t fit — theft of gratitude. One example is Rabbi Chaim Palaggi, which I brought earlier, who says that opening someone’s letter without permission is deception. Now here there’s no gratitude at all; he doesn’t even know who it is, there’s no connection to theft of gratitude. Or elsewhere, the Talmud brings this example: the ruler sends charity to the Jews and tells them, distribute this to poor Jews. Now the rule with charity is that we support poor non-Jews together with poor Jews. The Talmud says: this one may not be given to non-Jews, only to Jews, because the ruler said it was designated for poor Jews. The Talmud says: fine, so what happened? So distribute to non-Jews too and don’t tell him. Deception. You may not tell him that, and by the way this is ruled in the Shulchan Arukh. Deception. What do you mean deception? Does the ruler feel gratitude toward me because you gave to poor Jews and not to poor non-Jews? It doesn’t seem like gratitude. He designated it for poor Jews. But what does that have to do with gratitude?

[Speaker H] What does it have to do with gratitude? Maybe it’s stealing money? Huh?

[Rabbi Michael Abraham] Maybe it’s stealing money, but it’s not deception.

[Speaker D] But they bring it as deception. But theft is always creating a lack for the other person. The gratitude that you create in him isn’t a lack. Why is it a lack? He feels gratitude toward you and you don’t deserve that gratitude. You created in him a lack regarding the truth. You created… deception — you steal the truth from him, something he lacks. You understand? Not that you create in him what…

[Rabbi Michael Abraham] Not gratitude — you’re just saying information, not connected to gratitude. You’re saying the information itself, I stole the information from him. Not that you stole information from him; you created in him…

[Speaker D] It’s not gratitude.

[Rabbi Michael Abraham] You’re talking about the information itself, something untrue, incorrect. What? Gratitude? The gratitude? For example — then it’s not the information, I just created gratitude in him.

[Speaker D] Fine, so I didn’t steal information from him. But we need to find something where the other person is missing something, because otherwise it’s not called theft.

[Rabbi Michael Abraham] Apparently it’s perceived as some sort of lack.

[Speaker D] If you create some illusion in someone, that’s not called theft.

[Rabbi Michael Abraham] No, I’m saying it’s apparently perceived as some kind of lack — if a person feels gratitude toward someone and he shouldn’t be feeling gratitude, then as it were you deprived him of something. Because gratitude obligates him toward the other person. But not…

[Speaker D] But you didn’t deprive him of anything. He feels indebted and uncomfortable toward the other person. Basically, that’s a lack — he owes…

[Rabbi Michael Abraham] He feels he owes you when in fact he owes you nothing at all. So you took from him that obligation, that debt. Right.

[Speaker G] And we’re talking about seven thieves… what? The greatest of them all, or the first of them all, is deception.

[Rabbi Michael Abraham] Why is it first and second and seventh? Seven thieves. Now we’re discussing it. Ah… listen, my claim is the following.

[Speaker H] Is there any obligation of restitution, let’s call it that, in deception?

[Rabbi Michael Abraham] Usually, “what is crooked cannot be made straight.” What? “What is crooked cannot be made straight.” He can say, retract, or…

[Speaker H] Is there some kind of repentance, in quotation marks?

[Rabbi Michael Abraham] You can repent for any sin.

[Speaker H] No, I’m not talking about yourself…

[Rabbi Michael Abraham] Go back to the person himself — but that doesn’t fix anything. That’s repentance.

[Speaker H] Huh? Maybe lashes? Since there wasn’t…

[Rabbi Michael Abraham] Maybe it isn’t by means of an action. You just spoke; it wasn’t an action. I don’t know.

[Speaker H] Wait, why? But if I misled — in this passage, if some…

[Rabbi Michael Abraham] A verbal derivation — according to Maimonides, in verbal derivations there are no lashes at all.

[Speaker H] In deception, which is misleading. So if I misled someone and then I told him… I revealed the truth to him, so? Then seemingly it’s very similar to returning stolen property, no? Meaning, I stole the information here.

[Rabbi Michael Abraham] And if you read the letter that he sent?

[Speaker H] No, in that case not. But in the case — the accepted cases of deception, wait, wait — after…

[Rabbi Michael Abraham] After you sold him the car without an engine — after you sold him the car without an engine you explained to him that it had no engine? He discovered it himself.

[Speaker B] Fine, if you misled in some way and returned the theft, didn’t you steal?

[Rabbi Michael Abraham] No, that’s a prohibition linked to a positive commandment. The positive commandment repairs the prohibition. That’s how Jewish law understands it. It really is an interesting question why, but it’s a prohibition linked to a positive commandment.

[Speaker G] Why?

[Speaker B] But if he tells him, like we said?

[Rabbi Michael Abraham] “Linked to a positive commandment” doesn’t mean there’s no prohibition; it means a prohibition that was linked, that was repaired. You don’t get lashes. Why? “Linked” means repaired — that’s the word. But you…

[Speaker B] But the prohibition…

[Rabbi Michael Abraham] You don’t get lashes because it was repaired.

[Speaker G] Maybe say, for example, Oren with that barrel — afterward he tells him, actually I didn’t open the barrel for you.

[Rabbi Michael Abraham] So I’m saying that there it may be that you can repair it. But with a car without an engine you can’t repair it. If the fellow became paraplegic because of you, you can’t repair that.

[Speaker H] Without an engine…

[Rabbi Michael Abraham] You can return the car and not return the money, as it were. Huh? Without an engine?

[Speaker H] You want to return the money — the money is appropriate, it’s the right price for a car without an engine. No — return the money and receive the car, assuming that’s what the customer wanted.

[Rabbi Michael Abraham] He bought the car without an engine and it’s worth money — what I said to Oren. Not… not from the standpoint of the legal claim itself, but in order to repair the deception involved. Okay, fine, maybe. In any case, the point is that I think what lies behind this whole issue of deception — Chaim Palaggi made it click for me. In my opinion, deception means theft of information. Simply the literal meaning, that’s all. Theft of information. What does that mean? Look: suppose someone asks me a question: how old are you? I tell him, 22. I lied. Did I steal his mind? The answer is no. Why not? Because the information of how old I am is not owed to him. Who is he? He doesn’t need to know that information. It’s not information that belongs to him. To withhold information from someone is to lie. To withhold from someone information that is owed to him is to steal information. That’s the difference between theft and lying. And therefore there really is a dimension of theft in deception, not only lying. Everybody thinks deception is just lying, but no. It’s always lying — almost always lying, not always, we’ll soon see that it’s not. But it’s almost always lying, and yet it’s not… not every lie is deception.

[Speaker B] Look at Rashi’s example.

[Rabbi Michael Abraham] Yes, look — say with the car without an engine. With the car without an engine, all in all, a person who buys something deserves to know what he’s buying. You didn’t cheat him on the price; the price is appropriate for a car without an engine. But someone who buys deserves to know what he is buying. If you hide from him information he deserves to have — not just any lie, but information that belongs to him, so to speak, that is owed to him — that is what is called deception. And therefore Rashi, when he says “gratitude,” in my opinion that’s not the defining feature at all. All the halakhic decisors bring a definition of gratitude; that’s not right. Gratitude is an example. Rashi says: why is it deception when I invite you and open a barrel for you? What — do you deserve to know that I’m not your very best friend? What business is it of mine, what business is it of yours. But no — because if I… “as water reflects a face to a face” — if I present… present myself as such a good friend of yours, then your gratitude toward me is created. Which means that this information is in fact information owed to you, because you pay for it with gratitude. So it’s not just lying. Therefore such a thing is deception and not merely lying. Okay? By the way, there’s a book by Mauss, in a very famous essay — some French philosopher — in my books in those, well, those postmodernists, what’s the name of the publisher? Resling. Published by Resling. It’s a whole essay on the idea that basically everything is commerce. Gratitude is commerce; everything is commerce, a gift is commerce. There is no difference between a gift and a sale. A gift obligates you to return gifts; he brings examples from all sorts of cultures, he’s half anthropologist. He brings examples from all sorts of cultures — that’s basically his claim. Now I don’t know whether I would go that far, but there is such a dimension; it’s clear there is such a dimension. When you do someone a favor, then he deserves to know that you did not do him a favor. Why? Because doing someone a favor creates some kind of reciprocal lien, that he owes you a favor in return. When afterward you ask him for a favor, he’s not legally obligated to you, but he… he’ll do the favor. Why? Because you did him a favor. But really you didn’t do him a favor. So the fact that he feels gratitude toward you — in Rashi’s view that’s not the defining feature of deception. It’s an indication that this thing is not merely lying but deception, because you took information that he deserves to know. If he gives gratitude, then he deserves to know that he received something. Now what happens with reading letters? With reading letters, that’s exactly the practical difference. In reading letters, you didn’t take any gratitude, nobody owes you gratitude; on the contrary, you’re concealing the fact that you read his letter. So why does Rabbi Chaim Palaggi call this deception? That’s exactly the point. You don’t need the gratitude; gratitude is only an indication. Deception means taking information that belongs to someone else. That’s all. You opened a letter — you took information that is his, without permission. That is deception in the most literal possible sense, very simply.

[Speaker I] If I take information from consecrated property, is that misuse of consecrated property, or is it a prohibition of deriving benefit?

[Speaker G] What? What are you asking?

[Rabbi Michael Abraham] Information of consecrated property — I don’t know what such a thing would be. What? I consecrate to the Temple treasury a car without an engine?

[Speaker I] No, you consecrate to the Temple treasury a song or a book, and I take it and copy it and distribute it, sell it — the information.

[Rabbi Michael Abraham] Ah, wait, wait — you already jumped to copyright; I haven’t made the connection yet. In a moment. You’re right, but one second. So the claim basically is that deception means exactly what the words say: stealing information. That’s all. That’s called deception. Okay? Now, and gratitude is only an indication to show that this isn’t just lying but deception. So if gratitude is created in the other person, then it’s not just a lie that you told — it’s deception. But it’s not that the defining feature of deception is gratitude. And therefore the foundation of the prohibition, both in the case of the car without an engine — which is in the laws of sale — and in the laws of character traits, is the same foundation. You steal information from someone.

[Speaker B] And therefore it’s learned from “You shall not steal.”

[Rabbi Michael Abraham] Yes, and therefore it’s learned from “You shall not steal,” because it’s theft. Now it’s true that theft contains an element of lying; every theft has an element of lying. But deception is not merely lying — it is lying that also contains the element of theft beyond the lying. Okay? That’s why it’s deception. I think this is a kind of intermediate case. If we were to draw an axis between lying and theft, deception lies somewhere in the middle. It has something of lying and something of theft, a combination of the two. And by the way, there are several more gradations on that axis between theft and lying, and I think there’s actually a verse — a whole verse — that runs along this axis and lays out four or five gradations between lying and theft in the portion of Kedoshim. I don’t remember exactly anymore, there’s there… I don’t remember. What? Oppression. Yes, exactly — the verse that says… and there’s a list there that appears in the same verse, and in my opinion they all lie on that axis.

[Speaker I] “You shall not steal, and you shall not deny falsely, and you shall not lie to one another.”

[Rabbi Michael Abraham] Yes, something like that. I wrote about it on the portion of Kedoshim, I think in Middah Tovah on the portion of Kedoshim, I don’t remember; you’d have to look there. In any case, the claim is that deception basically means stealing information. Now if that is really so, then at last we have a source for the fact that there can be ownership of information. If it is possible to steal information, then there is ownership of information; information is yours, and if I take it then I stole it. So this may decide between the two possibilities I raised earlier. I said there is a possibility to say that information can indeed be owned, even though an abstract thing in general cannot be owned. Why? Because information is a special kind of abstract thing — an abstract thing not attached to a tangible thing. Fine, that’s a nice distinction. How do I know it’s correct? So I say: deception may be the source for that.

[Speaker D] But why call it theft of information, when it’s really misleading? Why is misleading him considered that?

[Rabbi Michael Abraham] You’re taking from him, or withholding from him, information that he deserves to know. Right. What? And that too would be deception.

[Speaker D] Like in reading a letter,

[Rabbi Michael Abraham] Like in reading a letter, you’re not misleading anyone — and still it’s deception.

[Speaker D] No, a letter that you read…

[Rabbi Michael Abraham] Exactly — so why is it deception? Why is it deception? I didn’t mislead anyone. According to Rabbi Chaim Palaggi, why is it deception? No, I’m just asking: when you mislead, why call it deception?

[Speaker D] Because even when I…

[Rabbi Michael Abraham] When I mislead, it is deception only when I mislead someone about information he deserves. If I simply mislead him, that’s not deception, that’s lying. That’s exactly the distinction I’m making. Only when I take from him something that is his is it called deception; otherwise it’s lying. Lying and deception are not synonyms.

[Speaker F] There is a dimension of…

[Rabbi Michael Abraham] Theft in addition to lying in deception, and in lying itself there is no theft. In deception there is also a dimension of theft besides the dimension of lying.

[Speaker D] No, but the truth is I didn’t steal anything; I just created incorrect information in him.

[Rabbi Michael Abraham] I don’t know a single case where that condition is not met.

[Speaker D] If a person says to him, I opened your letter — so?

[Rabbi Michael Abraham] He deserves to know the information that I didn’t open it for his sake,

[Speaker D] and I took…

[Rabbi Michael Abraham] I took that information from him; I didn’t give him that information. That information is owed to him, it is his.

[Speaker D] I agree, you misled him, but…

[Rabbi Michael Abraham] You didn’t take any information from him? No — I took information from him. And what does it mean that I took information from him? Not giving someone information that is owed to him is like taking it.

[Speaker D] Not…

[Rabbi Michael Abraham] Not giving him information that is owed to him is like taking, in this context. Same thing, same thing. Okay, fine. So what information…

[Speaker H] But you didn’t take anything from him because I opened that letter — that’s something else.

[Rabbi Michael Abraham] If it is private information of someone else, then you stole the information from him. If you learned nothing new, then why does he care that you read it? You knew everything already beforehand. Why does he care that you read it?

[Speaker H] No, it’s a personal matter.

[Speaker E] Personal.

[Rabbi Michael Abraham] Right, so if it’s personal, then you learned something new — either way. If you learned nothing new, then nothing happened when you opened it. Fine, you knew everything beforehand, so what?

[Speaker E] No, but when you opened it, you didn’t yet know.

[Rabbi Michael Abraham] Doesn’t matter. In the end it turns out you did nothing.

[Speaker E] No, here I transgress it.

[Rabbi Michael Abraham] So he intended to eat pork and ended up with lamb — he still needs atonement.

[Speaker H] Is there really some distinction between this thing, the right to know, and ownership of the information?

[Rabbi Michael Abraham] I said — I think from these examples it follows that no. If you have a right to know, and I withheld that information from you, that is like taking information from you. Reading a letter is literally taking information, okay? Now, the claim I want to make — let’s move on because this has already taken me more time than I thought — the claim I want to make is that violating copyright means taking information that belongs to someone else. That’s what violating copyright is. And if there is ownership of information, then violating copyright is theft. Or robbery, theft — whatever.

[Speaker H] Not a monetary obligation?

[Rabbi Michael Abraham] What do you mean, not a monetary obligation?

[Speaker H] He has to make restitution. That’s a different question.

[Rabbi Michael Abraham] Now we have to discuss the value of the thing I took, because you need an appraisal for restitution. And now the question is whether you can make restitution, whether there is value to what you took. In another moment I’ll give you an example.

[Speaker H] Look, is there such a concept as compensation for deception? What? Such a concept of a compensation claim for deception?

[Rabbi Michael Abraham] I don’t know of one. Well, there is very little discussion of deception in the halakhic decisors, so that makes it a little difficult.

[Speaker H] Deception causing monetary damage could happen, I assume, from the examples we brought.

[Rabbi Michael Abraham] If you used the information. So that’s exactly the copyright problem.

[Speaker H] No, you didn’t use the information. Suppose you… say I caused someone — wait, I’ll give you examples.

[Rabbi Michael Abraham] In just a second I’ll give you examples. I didn’t find anyone who deals with this, because I didn’t find anyone making the connection between deception and copyright. So I wrote an article in Techumin; I think this is the only Torah-level source you can find for it, in my opinion. All the others are these kinds of games and clever homilies, where it’s obvious what the goal is—we want to protect copyright—but I don’t think any of them has a convincing Torah-level source. Look, there’s a Talmudic passage—I’ll bring you an aggadic proof. In this context, by the way, people often bring aggadic passages, because when there’s no proof, we start waving our hands. But I’ll bring good proofs, because this is proof from aggadah that speaks incidentally. If something said incidentally counts as good proof. You know what I mean by bringing proof from aggadic passages? I mean not that this is the point of the aggadah, but what it assumes in passing, as if it’s obvious—not what it says explicitly, but the subtext, so to speak. Look, Rabbi Eliezer says—his students come to visit him on the day of his death. A passage in tractate Sanhedrin, page 68, if I remember correctly; also there in another place, there are two passages describing this. So he says to them: I learned much from my teachers, and I took from them no more than a dog lapping from the sea. So what does it mean, I took nothing away from them? He’s basically saying that his teachers knew so much Torah that all the Torah he knows—and Rabbi Eliezer was like a sealed cistern that loses not a drop, he retained a huge amount of Torah knowledge—all the information you know from me is not even a drop out of the ocean of knowledge of my teachers, okay? But there’s some assumption here saying that if I had known a lot more information, then I would have diminished what my teachers had. Why, when I learn information from my teachers, does that diminish them? What does diminish mean—do they no longer know it? Did I steal it from them? Like those Hasidic stories where you buy the melody from the shepherd and then the shepherd forgets it, right, the rebbe who bought the melody from the shepherd and the shepherd forgot it—fine, that only happens among the Hasidim. But when you take the information, Rabbi Eliezer took the information from his teachers, and his teachers still know it. They’re missing nothing. And this relates to everything I said before: after all, you take the information, and the information remains with its owner, at least in some cases—in the context of copyright, for example. In the examples I gave before, not so. In the examples I gave before, the information did not remain, at least at the relevant moment, with its owner. But applying this to copyright is problematic, because what kind of taking is there here? You see, Rashi there writes something very interesting. Rashi says there—he senses this, I think, because he explains, I don’t remember his exact wording, if someone has Sanhedrin here—never mind, we don’t have time. Rashi says there that the difference between the information I know and the information my teachers know is that from all the information my teachers have, almost nothing is missing. Rashi senses there’s a problem here: after all, I didn’t take anything from them. So he says it’s just a literary expression meant to explain the gap between the information I have and the information they have, not that the information I have is a deficiency in the information they have. Meaning, Rashi senses that there’s some difficulty in this comparison that Rabbi Eliezer is making. But I’m saying: maybe that’s what lies behind what Rashi says, but there’s a much simpler explanation. The value of information is when it is unique. When someone is a special artist, a special creator, has a special patent, okay? When is it worth something? When only you know it. Right? That’s why infringement of copyright is problematic. He can keep selling his patent even if I took the patent from him. Right—but now I’m also selling the patent. So information—or some kind of medical knowledge, or artistic knowledge, it doesn’t matter, some ability, some skill, some idea—the value of it is proportional to the number of people who know it. Proportional—not necessarily linearly; obviously it goes down exponentially. But never mind, it varies inversely with the number of people who know it. Therefore, when you take information from someone, you have diminished his information. You have diminished the uniqueness of the information. He still knows the information. But the information you did not learn is unique information that remains with him. The information you learned or took—if he taught it, then there’s no problem; it’s not theft of information, because his teachers taught him, they agreed that he could take it. But still, they agreed and they gave it to him as a gift. What did they give him as a gift? Not the information—the uniqueness of the information. They gave up the uniqueness they had. And that’s obvious. Think about it yourselves: what is the value that information has? The value information has is its uniqueness. A surgeon who knows how to perform a very complicated surgery—but suddenly there are another hundred people who know how to do it just like him—has lost all his earning potential. Because everyone knows how to do what he knows. So what good is it? Only if you’re the only one who knows how to do it does it have value. If there are two, it also has value. The more people know it, the less it’s worth. And this is really an example where you can even begin to discuss compensation. That’s why you don’t find halakhic decisors discussing compensation, because usually the information you took is very hard to assess—what is it worth? In the examples of deception in other contexts. But here, when I apply this to theft of information in the sense of copyright, here there is room even to speak about compensation. Because I can assess how much the uniqueness of such information is worth, what your earning potential is, and that means this is not indirect causation. Yehuda relates to this as indirect causation: I prevented him from having the opportunity to earn, so that’s indirect causation. I argue otherwise: what is the value of the information that I took? This is restoration of stolen property, not prevention of earnings. The earnings are an indication of how much the information is worth. In Torah study there are whole discussions—there are halakhic decisors who say that there is no uniqueness and no ownership over information in Torah study; that’s a dispute. It’s not important right now. But Rabbi Eliezer also did something permitted; he didn’t steal. His teachers taught him. But from there I bring proof that when I take information from someone, the other person is lacking, even though he knows the information. What is he lacking? The loss is because there is no longer uniqueness. Now, once there was a panel at Bar-Ilan where we were talking about medical ethics; there was a conference on medical ethics. Neil Hendel was there, and I was there, and someone else, and we spoke there about the Nahmani embryos—the embryos of the Nahmani couple—about whether a person has a right over his genetic information. The spouse doesn’t agree that—either doesn’t agree, or someone died, it doesn’t matter, there were several stories there—where the woman wants to make use of it and he doesn’t want to make use of it, or there’s a dispute with his parents. The question is: who owns the information, who owns the sperm or the genetic information? So I—and the arguments in medical ethics are also not simple, and in Jewish law too—and I argued, and this is a further step, I argued that from this foundation of deception one can also derive ownership over genetic information. My genetic information—I didn’t create it, I didn’t invent it. But if we decide that genetic information is sufficiently, let’s say, my personal information—and overall I think that as a society we do see it that way—then taking someone’s genetic information, the law does not allow such a thing. Okay? So if as a society we really do see it this way, there is definitely room to see this as deception. Using someone’s sperm against his will in order to fertilize an egg or have children, even though he does not agree—it could be that this is a prohibition of deception, a Torah-level prohibition of deception.

[Speaker D] His parents inherit him, don’t they? What?

[Rabbi Michael Abraham] His parents inherit. So he says that this could be a source for that issue as well. You can take this pretty far once you make this abstraction. And if I just wrap up the discussion here, this thing is basically an example of abstraction, because I take all kinds of cases that Jewish law talks about. I don’t even know whether the masters of those cases really intended what I’m saying now, but I do think it’s there. Meaning, I think this idea captures the cases that appear there well, and therefore it may be that subconsciously—maybe, I don’t know exactly, maybe even consciously, I don’t know. But still, I think this is a reasonable abstraction when I say that I will include all these cases and create from them one general abstract principle. There is ownership over information, and consequently there is a prohibition against stealing it, and now you can derive from this a huge number of implications—from medical ethics, copyright, all kinds of things of this sort. So I think this is one example of halakhic abstraction that has many halakhic implications, or could have many halakhic implications. Thank you very much to the Rabbi.

Simplicity, Lesson 4

Table of Contents

Summary

General Overview

Basic Approaches to Copyright: Proprietary vs. Teleological

The Problem of Tangibility and the Object of Copyright

Patents vs. Copyright and Moral Rights

Maimonides: “A Thing with No Substance” and the Difficulty of Defining Torah-Level Robbery

Indirect Halakhic Solutions and Their Limits

“Emek HaMishpat” and the Claim of Ownership Without Transferability

An Alternative Possibility: “No Substance” Was Said About an Abstract Feature Attached to Something Tangible

Reversing the Primary and the Secondary in Copyright

Deception as the Source for Ownership of Information

Critique of Rashi and a Proposed Definition: Deception Is Theft of Information Due to Another

Copyright as a Halakhic Extension of Theft of Information

The Uniqueness of Information and an Aggadic Proof from Rabbi Eliezer

Further Implications: Medical Ethics and Genetic Information

Full Transcript

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Table of Contents

Summary

General Overview

Basic Approaches to Copyright: Proprietary vs. Teleological

The Problem of Tangibility and the Object of Copyright

Patents vs. Copyright and Moral Rights

Maimonides: “A Thing with No Substance” and the Difficulty of Defining Torah-Level Robbery

Indirect Halakhic Solutions and Their Limits

“Emek HaMishpat” and the Claim of Ownership Without Transferability

An Alternative Possibility: “No Substance” Was Said About an Abstract Feature Attached to Something Tangible

Reversing the Primary and the Secondary in Copyright

Deception as the Source for Ownership of Information

Critique of Rashi and a Proposed Definition: Deception Is Theft of Information Due to Another

Copyright as a Halakhic Extension of Theft of Information

The Uniqueness of Information and an Aggadic Proof from Rabbi Eliezer

Further Implications: Medical Ethics and Genetic Information

Full Transcript

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