As I was perusing through this week’s Torah portion, I found a verse that gave me a wonderful platform for a diatribe on the ramapnt abuse of intellectual property in the Jewish world today. Read on….
Random Musing Before Shabbat
It’s a simple enough commandment. You can’t encroach on your neighbors property by moving the boundary markers around. There’s plenty enough material in other parts of this parasha (and in particular the verses that follow soon after, regarding the requirements for witnesses in a legal proceeding.)
From this fairly straightforward verse in Torah, the rabbis constructed an entire class of laws referring to hassagat g’vul, encroaching upon the boundaries of others. As an agrarian society, the land one possessed had a direct impact on their ability to live, to, as we say, "make a living." As we moved from being a largely agrarian society into becoming merchants and engaging in other trades, it became necessary to define what "borders" needed to be protected in order to insure a person’s livelihood.
The Talmud has a great example of how this concept was extrapolated into halacha when it speaks of the rights of a fisherman to not have his fishing-grounds encroached upon by other fishermen with their nets, the Talmud requiring that the other keep away at least the distance of a fish’s swim (which they defined as one parasang, equivalent to about 2.5 miles!)
The concept of hassagat g’vul, moving boundaries, was eventually extended to the concept of unfair competition. And from there, it was a short hop to become one of the underlying concepts behind what Jewish law has to say about the protection of intellectual property, and more specifically, what we now call copyright.
The Chatam Sofer, Rabbi Moshe Schreiber (1762-1839, chief Rabbi of Bratislava) used the concept of hassagat g’vul to underlie his opinion on a matter concerning the editor of a series of siddurim (prayerbooks) and machzorim (holiday prayerbooks) who was seeking to prevent others from republishing his editions. For the Chatam Sofer, it was ultimately a matter of comparing the work that the editor had put into his siddurim and machzorim – the layout, typestyles, etc. (though obviously not the basic text itself) to that of the fisherman who labors to lay his traps, set up his nets, and catch fish. The editor’s work entitled him to derive income from his efforts, and it would be unfair of others to reprint his editions without compensation.
Much of what the rabbis wrote regarding intellectual property rights found its way into copyright laws in the U.S. and around the world. Unfair profiteering and racketeering by record companies, and other egregious abuses notwithstanding, the system has worked fairly well to insure the creator of an intellectual property the means to earn a living from those creations, and to be protected for unfair competition or use of those creations by others without permission or compensation.
And now, here we are, in the 21st century, with digital music, iPods, Napster, et al. Decades of copyright laws, and centuries of tradition seem to have outlived their usefulness.
Well, I certainly hope not. Judaism has managed its way around a host of major changes in society, and we’ll find a way to manage this change as well. Yet the stage is already set for the almost complete tearing down of boundaries, by the alarming state of copyright abuse that goes on daily in our many Jewish institutions – synagogues, JCCs, schools, etc. I can’t tell you how many times I have seen photocopies of complete textbooks being used, DVDs and Videos intended for personal home use being shown to large audiences. Photocopied music being used by choirs. Not to mention the times when I’ve overheard someone standing at the sales table of some musical artists at a concert or conference say "I’ll buy these two CDs, and you buy those two, and we’ll make copies for all the rest of the faculty.)
Modern technology and the digital age have become a double-edged sword (which, by the way, is another original Jewish reference!) While the technology has seen a flourishing of new works of Jewish music of all kinds, it is also enabling people to easily make and distribute copies without any recompense to the artists who created the work. The present flourishing may be reduced to a trickle if the artists can’t make a living.
Yes, I’m an educator who runs a religious school, so yes, I know what a limited budget we all have to work within. I also direct choirs and know what choir music costs. And I understand with a deep passion how important the work we all do is to the future of Judaism. I’m also musician and arranger, and my work appears on a few recordings. So I am sensitive to both "sides" of this issue.
The rabbis knew this tension as well. As usual, not being of one mind, they differed on whether "copyright protection" would be a stimulus or deterrent. Some argued that without the incentive of some income from their efforts, scholars would be reluctant to write more commentaries. Others argued "the more Torah, the better." It’s hard to argue with that. Just as it is hard to argue with the constant cry of "Lashem Shamayim" (for the sake of Heaven) that is used to justify the scandalous amount of copyright infringement that occurs each and every day in our Jewish institutions.
Yet, if what we are doing is truly "LaShem Shamayim" is it not all the more incumbent upon us to not infringe upon the boundaries of others in such a way as to possibly impact their parnassa, their livelihood?
We need not engage in a "glatt kosher" process here. Common sense must prevail. For example, these days many of the publishers of choral music will grant permission to use photocopies with the purchase of some reasonable number of print copies of the music. Using technology, many artists and publishers will sell you licenses to print out your, on your own paper and equipment, your own copies of music, books, etc. from PDF files. Digital rights management systems can be configured many different ways to allow the original purchaser to make a reasonable number of copies of the file, or burn the file to a CD more than once, but not unlimited quantities. And what artist, what merchant, for that matter, would not be at least somewhat receptive to offering a reduced price for quantity purchases? Film distributors do charge synagogues and other non-profit or religious institutions a lower license fee to show a film than they would charge for a commercial setting.
I don’t know about you, but I feel better having paid the $250 fee to show "Paperclips" to my congregation than simply renting it from the local Blockbuster and showing it. By doing so, I just might help insure that the creative minds behind "Paperclips" continue to create films like that.
Maybe it’s not fair, but under existing U.S. Copyright law, supplementary religious schools do not qualify for inclusion in the class of educational institutions that benefit from the "Educational Fair Use" provisions covering books, music, films and other media. (Most days schools would qualify, however.) Maybe that’s something we ought to lobby Congress to change. I believe it should be "fair use" to show a portion of a film in a religious school class, or create a "class pack" of assembled chapters from a few different books, or audio clips from a few songs in a class. On the other hand, I do agree that we probably shouldn’t be showing full-length commercial DVDs intended for private home use to an entire class, or a group of congregants without some kind of license fee. And we shouldn’t be using photocopies of entire textbooks, or illegally copied CDs, mp3s, DVDs, etc.
Yes, common sense is required. Noted Jewish educator, author and lecturer Joel Grishaver, in his "meseket photocopy" (maseket is the word for a tractate of Talmud) recognizes that there are emergencies, last-minute needs, texts from extremely expensive original sources, etc. in which exceptions ought to be permissible and acceptable. Yet he states the other case quite succinctly: " The use of photocopied textbooks, workbooks, instant lessons, etc. to "save money" no matter how poor the school, is an act of theft and undermines the Torah that is being taught."
Elul is here. Time to do some inner soul searching. Maybe some organizational inner soul searching. Between now and the end of the Yamim Noraim (Days of Awe, the High Holy Days) might be a good time to go through your shelves, files, Hard drives, CDs, DVDs, videos and weed out the obviously illegal (both under U.S. law and Jewish law) items we have and are using, for ourselves, and our institutions. Time to go to our boards and officers and executives and clergy and insist that we practice the Torah that we teach. Insist that we are not engaging in hassagat g’vul, moving boundaries.
I hoped I’ve stretched your boundaries a little with these thoughts. If you’d like to know more about copyright and Judaism, please visit http://www.havanashira.org/copyright.htm
©2006 by Adrian A. Durlester