Q&A: Monetary Ownership of Air
Monetary Ownership of Air
Question
(Sorry that I sent the question by mistake without text; I forgot to paste the text.)
Can there be monetary ownership of air? I saw in the Talmudic passage in Bava Kamma, in the dispute between Rav and Shmuel about liability for a pit—whether it is because of the harmful vapor or because of the impact—that Rav does not impose liability because of the impact, and the Talmud’s reasoning is that he holds one is not liable because it is public ground. And in the medieval authorities (Rashi, Shitah Mekubetzet) it seems that the reason is that it is not his property but everyone’s property, and Rav imposes liability only for one’s own property. So the question arises: is the vapor that accumulated in the pit considered his property? Can one take ownership of vapor? And if so, how does one take ownership of vapor—by pulling, money, taking possession?
Thank you
Answer
You do not have to assume that the vapor is his property. It is enough that it is not someone else’s property. A pit in the public domain is one of the things that are not in a person’s domain, yet the Torah treated them as if they were in his domain in order to make him liable for them. But according to Rav, public ground belongs to everyone, and therefore one cannot impose liability on that basis.
Indeed, it should be noted that in the laws of acquisition there is no ownership of air. This is one of the things defined as something without substance (the airspace of a courtyard). It is commonly thought that this means ownership is not defined there at all, but in my opinion it means that ownership of the air belongs to the owner of the land beneath it. That is, it is not that you cannot own the airspace of the courtyard; rather, you cannot detach ownership of the air from ownership of the courtyard. See my article on copyright in Techumin 25. According to this, ownership of the vapor must be considered. You cannot own it when the ground beneath it is public ground. Though perhaps one can distinguish: even if you cannot own it, it still does not belong to the public. Only the ground belongs to the public.
For example, in the well-known dispute of the amoraim about fire, Rabbi Yohanan holds that liability for one’s fire is because it is like one’s arrows, since ownership cannot apply to fire (something without substance). But he does not exempt the person because of that; rather, he makes him liable because it is like his arrows.
Discussion on Answer
First, in my article I showed that there is ownership of information/an idea.
Second, I do not know of any “disputants” (other than me; the halakhic decisors base copyright on rabbinic law or encroachment, the law of the land, and the like).
Third, above I cited Rabbi Yohanan’s view that liability is because it is like his arrows. A similar solution can be found for copyright: even if there is no ownership over it, it is part of me (my body), like “the children of my spirit.”
How would you explain the Talmud in Beitzah, which says that it is permitted for someone forbidden by vow to benefit from another’s property to benefit from that person’s flame? Only if you say that it is ownerless; because if it is part of the one who imposed the vow, that should be forbidden.
When the flame is already with the beneficiary, or simply gives him benefit, it is no longer the property of the one who imposed the vow (“a candle for one is a candle for a hundred”). When it goes out and causes damage, it is considered his force—like a pit, which the Torah treated as being in its owner’s domain in order to make him liable for it.
I didn’t completely understand. When I copy someone’s song, the prohibition would seemingly be that I am using his creation without permission. The point is that in the Talmud in Beitzah it is explained that there is no ownership of a flame regardless of the rule “a candle for one is a candle for a hundred,” because regarding a burning coal it is explained that there is ownership—if I light a fire from it, it would be forbidden. So there is no ownership that takes effect on something without substance.
With a flame, when you take it or benefit from it, it is yours and not his. With a burning coal, it is always his, and if you light from it then you used what is his.
As for the song, it does not matter that you copied it. The physical song perhaps you copied, but the information you took—you did not copy it. In my article on copyright I explained that the information is part of him; it is his uniqueness.
Is the reason there is no ownership of fire, as explained in the Talmud in Beitzah—that it is even permitted for someone forbidden by vow to benefit from another’s property to benefit from the flame of the one who imposed the vow—the reason there would be no copyright? And what would those who disagree and hold that there is copyright answer? After all, a creation is certainly something without substance.