by Willis Johnson (Eliyahu Johnson)

In August 1985, a user named Willis Johnson — who also called himself Eliyahu Johnson — posted to net.religion.jewish from Reed College in Portland, Oregon. The question he posed was radically new: what does Jewish law say about copying software without paying for it? Software piracy was a live and contentious issue in 1985, and the halakhic tradition had no prior rulings. Johnson worked through the classical concepts carefully, raising questions that would not receive formal rabbinic attention for years. The post is remarkable both for its intellectual seriousness and for its prescience — it appeared before nearly any other halakhic treatment of digital intellectual property.

This is a slight revision of a letter which I sent to Eliyahu Teitz. Now that Reed is out of cherem, I'm reposting to the net.

I just read the entire backlog of net.religion.jewish articles. I hadn't realized that there were so many chareidim out there. I'd always thought my own romance with technology to be aberrant. I wonder what the ARI z'al would have thought of this network by which weekly sedra lessons are zapped by phone, microwave and satellite le kol afsei haaretz. Do you suppose that, per the Benei Yissachar, Ma Bell's infrastructure will some day, suddenly crumble as it yields up its last netzuts kedusha with the posting of the address of a kosher bakery in Albuquerque?

A friend posed me a question the other day and it's given me pause: "What are the Talmudic and ethical implications of using stolen software?"

Out here in the hinterlands (I'm in Portland, Oregon) where even an Igros Moshe is impossible to find, I get asked some very difficult questions by my very modern friends.

The Question

Are computer programs property? What constitutes property and does ownership extend to ideas? In what ways might intellectual property differ from tangible property?

Commercially marketed software is ordinarily said to have a "half life" based on the amount of time which will pass before it becomes readily available at no cost from sources which do not pay royalties to the copyright holder.

If the copyright holder acknowledges in advance that his product is "perishable," does that constitute a de facto acceptance of its unauthorized reproduction by "bootleggers?"

Three Halachic Frameworks

Two halachic analogies present themselves immediately:

1. Hasagat Gevul

Hasagat gevul — encroachment on boundaries — applies in the case of copyrights on printed books. There is a discussion of this in the introduction to Tosefos Yom Tov's commentary on the Mishna. This validates the idea of intellectual property as a means of earning a parnassah. However, in the case of the (effective) granting of a copyright on the Mishna there was a time limit. And this brings me to the second point.

2. Eyushi Me-Ish

Eyushi me-ish — the giving up of hope of recovering lost property — as discussed in the second perek of Baba Metsiah (Elu metsias shelo, velu chaiv lehakriz...). Under a variety of circumstances a normal person could be expected to give up all hope of recovering his lost object and it would become hefker. The case there of someone who sees his property floating down the river and is running after it seems analogous to attempts made by software vendors to copy-protect their software even though they think of it as "perishable."

Don't the software vendors market their programs al smakh that they will be copied?

3. Dina D'Malkhuta Dina

Where does dina d'malkhuta dina fit into this? Presumably, here in galus we are bound to obey secular law so long as it does not conflict with halacha. However, dina d'malkhuta dina may not apply in all countries either because (A) they have no laws which address the issue of software piracy, or (B) the case of eretz Yisroel is being considered.

For the sake of discussion, I'd like to avoid such arguments as:

"It's a violation of U.S. law. Dina d'malkhuta dina. It's assur. Q.E.D."

Colophon

Posted by Willis Johnson (Eliyahu Johnson) of Reed College, Portland, Oregon to net.religion.jewish, August 4, 1985. Message-ID: <[email protected]>. Johnson signed himself both "Eliyahu Johnson" and "Willis Johnson" — the Hebrew and secular names held together in one life. The question he raised, whether the halakhic framework for intellectual property applies to software, would not receive formal rabbinic ruling for years afterward. This may be among the earliest recorded attempts to apply halakha to digital intellectual property.

Preserved from the Usenet archive for the Good Work Library by the New Tianmu Anglican Church, 2026.

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