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By Dayan Shlomo Cohen
Previously…
In our previous article, we identified four levels of benefitting from the efforts of another:
1. Grabbing a unique find before the person who spotted it is not immoral according to all opinions.
2. Acquiring a unique item before another prospective buyer is immoral according to Rashi but not according Rabbenu Tam.
3. Acquiring a non-unique item before another prospective buyer is immoral according to both Rashi and Rabbenu Tam.
4. Acquiring a unique item before another prospective buyer, where the latter had exerted much effort and created the opportunity for the third party is immoral even according to Rabbeinu Tam – despite the fact that the item is unique.
In this article, we will examine two further levels.
The Fifth Level
The Mishna discusses a case of a poor person, who saw an ownerless (Hefker) olive tree growing on ownerless land, climbed on it and started shaking it, causing the olives to fall to the ground. His intention was to collect them, and sell them in the market. If another person would collect the olives before the poor man could climb down the tree, that person would be regarded as a thief. Even though the olives do not belong to the poor man who shook the tree – as he has made no valid act of acquisition – nevertheless, our Sages consider him as a ‘thief’. This means that only on a rabbinical level is he a thief while, according to the strict letter of Torah law, he is not.
Therefore, if the poor man were to take this ‘thief’ to Bet Din, he would lose, as Bet Din do not have the authority to make the collector return what he took, because he is not actually a thief.
From here we see that to take property which is ownerless, but was created by the efforts of another is theft (albeit rabbinically).
The difference between this case and the previous cases, where such actions are considered to be immoral, but not akin to theft, is that in the olive-tree case even more effort was expended. Thus, we have a fifth level to add to our scale of benefitting from the effort of another.
Fishing Rights
The Gemara (Bava Batra 21b) discusses the following case: Reuven goes fishing, and, when he gets to the river, he finds that Shimon is already there. Reuven starts setting up his fishing equipment next to Shimon, but Shimon objects, claiming that Reuven must keep away from the area where he is fishing.
Let’s examine this claim of Shimon: The river is ownerless and so are the fish. What right does Shimon have to prevent Reuven from setting up his rod right next to him, and catching the fish that he was attracted with his bait?
The answer is that Shimon has exerted much effort in causing the fish to gather around him, and it is inevitable that – if no one interferes – he will catch them.
There are varying opinions amongst the commentators as to the exact scenario of the Gemara. Rashi explains that the first fisherman has been tracking a large fish and has found its nook, underwater. He placed the bait at the entrance of the nook where the fish is hiding and it’s just a matter of time before the fish emerges, takes the bait, and is caught. In such a situation, the second fisherman may not interfere and catch the fish for himself. Others explain that the first fisherman’s net is in the water, and the fish are inside the boundaries of the net. An actual act of acquisition will only be made when the net is lifted out of the water. Still, it is forbidden for the second fisherman to take these fish.
The common factor between all these explanations is that the first fisherman has exerted much effort, and catching the fish is inevitable, even though it has not yet been carried out.
The Sixth Level
The Hattam Sofer rules that in this case, it is actual theft for another to take the fish. He claims that it is not ‘just’ forbidden rabbinically, but actual theft according to the Torah. Despite the fact that all agree that the fish do not currently belong to the first fisherman, it is theft on behalf of the second, to take these fish which he is inevitable going to catch.
The Hattam Sofer explains that this logic would also apply to copyrights. Once a book has been published, all who desire that book must buy it from the publisher. Were another publisher to publish the book he is stealing from the first publisher who has expended much time and money on the project.
This approach of the Hattam Sofer does not consider the fact that in our times copyright is an asset which, while being intangible and abstract, can be and is bought and sold like any other asset. Accordingly, publishing the book of another would certainly be theft for this reason alone.
The case of the fisherman would be a sixth level of benefitting from the effort of another, and taking something which another ‘almost’ owns, which would be considered actual theft.
“Free” Download
Let’s now examine the case of an individual who downloads a song from the internet so that he can listen to it in his car whilst driving. Despite the fact that copyright is recognized today in Jewish monetary law as an asset, as explained above, once a song is freely available on the internet, it cannot be considered as property which has an owner.
The reason is, that the Gemara states that where someone’s property is washed out to sea, it can be presumed they give up all hope of retrieval – even though they may declare that they do not. So too, with a song that can be downloaded freely, the artist knows it is lost.
Nevertheless, we have seen from the Hattam Sofer, that even where property is ownerless, it is either immoral, theft on a rabbinical level, or even theft on a Torah level, for another to benefit from it.
Certainly, in the case of a song, where much time, effort and expense was involved in its production, even though it is considered ‘ownerless’, it would be at the very least immoral, and if not, theft, either rabbinically or from the Torah, to download and benefit from it for free. I think that all would agree that it is certainly not similar to the case we discussed in our previous article, of the two guys walking down the sidewalk, where one of them spots a hundred-dollar bill. In that case there are no Halachic repercussions if the other takes the money for himself, as the effort that was exerted by the first guy was minimal.
There is, however, one big difference between downloading and all the above cases. In the case of the olives, the fish and the land bought from a gentile; when another takes them, they have caused a loss to the party who exerted the effort. Every olive collected is one less for the guy who shook the tree.
In the case of downloading a song, this is not necessarily the case.
Only if the downloader will now not buy the disc, is a loss caused to the artist. If he would never have bought the disc anyway, no loss has been caused at all, and therefore he cannot be considered either as a thief, or as having acted immorally.
Concerned Artists
It must be pointed out that today there are ways by which an artist can protect his song from being downloaded. Where the artist has not bothered to do so, it could be argued that he has shown that he is quite happy for people to download his songs to advertise himself, and intends on earning his living from live performances and therefore all can freely download without being accused of being either immoral or stealing.
Where he has employed such a technique, a skilled downloader who has the technical knowhow to break the protection would certainly be considered as a thief, as the artist has not given up on his song, and remains the Halachic owner as explained above.
In Summary
To summarize, we have seen six different levels of benefitting from the efforts of another, the first one being permissible and the rest being treated like the owner of property you do not actually own with varying degrees of prohibition.
In my opinion, downloading a song from the internet is certainly comparable to the case of the olive tree, where the second guy takes an object which while being ownerless was ‘created’ by extreme effort on behalf of the shaker of the tree (the composer) and would therefore be considered as a thief (rabbinically). If the artist took measures to protect his song, it may even be considered theft on a Torah-level. [And, perhaps, if he willingly forwent protecting his song, it could be argued that he is not bothered by free downloaders.]
However, as explained above, this will only apply if the downloader would have bought the disc. If he would not, he cannot be considered as a thief, as he has caused no loss to the artist by his actions.