This week’s Torah reading, Terumah, contains all the design details for the Tabernacle, the portable Temple, and its contents.
Look at all the details given in the instructions for building just one of the ritual objects, the menorah:
“And you shall make a menorah (lampstand or candelabra) of pure gold.” The Torah tells us that it is to be hammered out of a single piece of refined gold, we are told it should have six branches from the sides, three on each side, and a lamp in the middle for a total of seven. Design details are given: Three bowls made like almonds, with a bulb and a flower in one branch; and three bowls made like almonds in the other branch, with a bulb and a flower; so for the six branches that come from the menorah. Similar design details are given for the central branch and the base.
After all the design details are given, God tells Moses “And see that you make them after their pattern, which was shown to you in the mount.”
The Midrash tells us that after God gave Moses all the construction details, Moses was so confused by the details that he threw up his arms in despair and said “Master of the Universe, am I a god that I should be able to make it exactly to these instructions?” So God sent down a model of the menorah made in fire so Moses could picture it clearly and build one exactly like it.
So this humble menorah – a beautiful and glorified candle holder – was actually a partnership between God and Man. God was the designer. God drew up the plans. God gave the detailed instructions, and according to the Midrash even provided a detailed model. And Man, the artisans of the Jewish people, built the menorah to God’s design.
God’s involvement – the design, the instructions, the plan – is all what we would call “intellectual property.” The design itself is not a physical thing – it’s an idea. And the idea for the menorah belongs to God, who shared His idea with the Jewish people.
Besides the construction details of the Tabernacle and its contents, there are other examples of God’s intellectual property found in the Torah. God gave Moses a very specific recipe for the incense that was to be burned. There is a list of “sweet spices,” most of which I have never heard of, and frankincense, all to be mixed together in equal parts. And this is a recipe that God guarded carefully. Even though unlike the recipe for Coca-Cola, which is secret, God put the recipe in the Torah, God still “reserved the rights” to the incense. He told Moses that the people were NOT to make any incense like that for themselves. It is a special concoction holy to the Lord, only to be used in the Temple rituals.
The rabbis in the Talmud instruct us to protect God’s intellectual property that was revealed in this week’s Parsha – we are not to make copies of the menorah. The Talmud tells us one must not make a menorah after the design of the menorah in the Temple. You can make a menorah with five branches or six branches or eight branches, but what you can’t do is make one, like the menorah in the Temple, with seven branches. The rabbis argued whether this applied even if you made the menorah out of different metals or out of completely different substances like wood. But cutting through the fine points of their arguments, they were unanimous that one could not make an exact replica of the menorah in the Temple to use at home.
Just as the rabbis were concerned about protecting God’s intellectual property, society is concerned about protecting the intellectual property of inventors, artists, writers and musicians. And that’s what I’m going to talk about this morning: protecting intellectual property.
It might seem a little strange to some people that I would choose today, a bar mitzvah, when we have a lot of young adolescents around, as the day to talk about something as abstract as intellectual property. Thirteen year olds, however, are on the front lines of the battle to protect intellectual property. Hence it is a most appropriate topic for us to talk about this morning.
We all know that kids today are remarkably technologically astute. How many of you parents turn to your kids and you need tech support for your computer system? Kids today even resent it when their parents get clued in technically, as was shown in the comic “Zits” a few days ago. Dad says “I saw this neat video on YouTube” and while the teenage son is sputtering, Dad says “I think I just single-handedly managed to make YouTube uncool.”
Most 13 year olds today are familiar with many different ways to violate the laws protecting intellectual property. Many 13-year-olds make copies of a friend’s CD, or download video or music files, with only a vague sense that they might be doing something inappropriate.
Does it matter? Why should we care about copying music files?
The music industry certainly cares – according to the Recording Industry Association of America, illegal copying costs the music business $4.2 billion / year. Bootleg and pirate videos cost the motion picture industry $6 billion a year, and illegally copied software costs the software industry $30 billion a year. Just those three industries have losses of over $40 billion a year to illegal copying.
Why is intellectual property theft so rampant? It’s probably because a lot of people don’t even think of it as theft. Many people who would never walk into a store and slip a CD into their pocket and walk out without paying have no problem doing effectively the same thing by making a copy of a friend’s CD or downloading music files. Many people who would never sneak into a movie theater to see a movie for free have no problem doing the same thing via a computer.
When a person steals a physical object, like a CD, from a store, he knows there was some cost in producing that object. The theft seems concrete and real. The thief or would-be thief knows that he is taking money out of the pocket of the owner of the store. Not only that, he is confronted with having to sneak around the employees and other people in the store. However when making an illegal copy, it’s done in the privacy of your own home, no one can see you, and the person being robbed doesn’t even know it.
This has become more of an issue in recent years because technology has made it incredibly easy to steal people’s intellectual property. Before the advent of the printing press, copyright laws were unknown. As soon as the printing press came into existence, laws were created to protect the interests first of the publishers, and later of the authors, from other people copying their stuff.
We are in the middle of a technological revolution that is on a par with the development of the printing press. Books enjoy a certain amount of built-in protection: while making a photocopy of a book is also intellectual property theft, by the time you pay for the toner and the paper, and spend all the time it takes to turn 200 pages on the copier, you might not save much money. But making a copy of a CD or a video is simple, and downloading files is literally “child’s play.”
Napster started the whole business with its peer to peer network which basically said if you let other people copy stuff off of your computer, you can copy stuff off of theirs. The courts said that Napster was facilitating intellectual property theft, and they were shut down. But it hasn’t made the problem go away. Alte
rnative peer to peer solutions like Morpheus have sprung up. There are legitimate uses for software like Morpheus – there are plenty of files people could choose to share that are perfectly legal. But it’s a pretty good bet that a very large percentage of the 51 MILLION people who have downloaded Morpheus are using it to copy some material that is protected by copyright.
Now many of the people using programs like Morpheus to trade music files will rationalize what they are doing by telling themselves they are not hurting the music industry because they weren’t planning to buy the music anyway. Especially kids whose only income might be a small allowance will say it’s not costing anyone money, because they say “I don’t have the money to pay for the songs anyway.”
But just because you wouldn’t have bought it is no excuse for stealing it. If you’re not willing to pay the price for something, you live without it. It’s not right to steal something just because you don’t want it badly enough to be willing to pay for it, and it’s easy to steal.
The Recording Industry points out how lots of people are harmed by music piracy: consumers lose out because piracy drives up the cost for people who are honest. Stores lose out because they can’t compete with bootleg copies or files swapped for free. Record companies lose – 85% of all recordings don’t generate enough revenue to cover their costs as is. And, perhaps most directly, the musicians lose. Musicians, singers, songwriters and producers don’t get the royalties and fees they’ve earned. Virtually all artists depend on these fees to make a living. As recording artist "Tool" put it, "Basically, it’s about music — if you didn’t create it, why should you exploit it? True fans don’t rip off their artists."
I wrote a teshuva, a Jewish legal opinion, called “Intellectual Property: Can you steal it if you can’t touch it?” which I will be presenting to the Conservative Movement’s Committee on Jewish Law and Standards at their meeting next month. Hopefully this teshuva will be less controversial and divisive than the ones they approved in December having to do with ordaining gay and lesbian clergy. But based on my visit to the committee last June, I expect a lively discussion.
Someone asked me why we should need such a paper. Doing things like swapping music files is against the law. The Recording Industry Association of America has been finding and suing people who download lots of songs – parents beware, parents of kids engaged in heavy downloading have been hit with bills enforced by the courts for $3,000 and up. As Jews we are already religiously obligated to follow the laws of America under the principle of dina d’malchuta dina, the law of the land is the law. Why should it matter what Jewish law has to say?
It matters because so many people obviously seem to feel that it’s OK to download and trade music files, videos, software, and other forms of intellectual property. So I figured we needed a statement on whether it was ethically and morally proper within a Jewish framework. Perhaps some people who look the other way at the legalities might be influenced by an understanding that the behavior is not only illegal, but it’s unethical.
The paper goes on for 17 pages and has 53 footnotes. I’ll spare you all the details, but I will share some of the highlights as to why Jewish law says it’s wrong make illicit copies of other people’s songs, words, or other creations.
As I pointed out earlier, we see that God’s intellectual property was protected by the Torah itself, as the Torah tells us the mixture for the incense is special only to be used in the Temple. But maybe we can’t take an example from God. Maybe the incense is protected because God’s recipe has extra holiness.
Going back to the early days of the printing press, rabbis added letters called approbations to books that were published. In these approbations the rabbis would praise the virtues of the book and the author, and they would often add a statement prohibiting the reprinting of the book for a specified period of time in order to allow the publishers time to print and sell copies of the book to recoup their costs and make a profit. Originally, the approbations were put in place to protect the publisher, not the author. Hundreds of years ago typesetting a book was a very labor-intensive process. The Chatam Sofer points out that if publishers weren’t assured of a monopoly in the publication for fixed period of time so they would be able to recoup their costs, they wouldn’t want to publish works of Torah—and the community would be spiritually impoverished. Allowing a monopoly on the intellectual property was a benefit to the community, which is similar to the argument used in secular law that society benefits from the protection of intellectual property. The same logic applies not only to works of Torah, but to all forms of intellectual property. Our lives are richer because we’re able to enjoy music that musicians can afford to spend their time creating because their efforts are protected and rewarded.
These approbations generally threatened anyone who violated the terms with being banned from the Jewish community. The first example of the protection of Jewish music included not only a threat of a ban, but a curse as well. In 1623, Salamone Rossi published a collection of Jewish sheet music, which included the following statement from a group of rabbis:
“We have agreed to the reasonable and proper request of the worthy and honored Master Salamone Rossi of Mantua . . . who has become by his painstaking labors the first man to print Hebrew music. He has laid out a large disbursement which has not been provided for, and it is not proper that anyone should harm him by reprinting similar copies or purchasing them from a source other than himself. Therefore . . . we the undersigned decree by the authority of the angels and the word of the holy ones, invoking the curse of the serpent’s bite, that no Israelite, wherever he may be, may print the music contained in this work in any manner, in whole or in part, without the permission of the abovementioned author.”
In addition to finding that the protection of intellectual property was good for society, the rabbis believed that protecting intellectual property was important to prevent unfair competition, which is a principal found in the Talmud. The Chatam Sofer said that if protection from competition was offered to printers, how “…much more so for one who created a new entity… for example, the consummate scholar, Rabbi Wolf Heidenheim, who spent countless hours in the editing and translating of the piyutim… and why should others profit from his creativity?”
And there is a third reason brought by the rabbis for protecting intellectual property, which is that when someone sells something he is allowed to attach conditions to the sale. An example in the Talmud says that if a person gives money to a poor person to buy a shirt, he cannot use that money to buy a cloak, and vice versa. The Talmud says he who “disregards the owner’s desire is called a robber.” Similarly, when a book or CD or music file is sold it is only sold for the use of the owner, and the owner is not given the right to make copies to sell or give to other people.
A further reason to condemn casual intellectual property theft such as music or video file swapping is that it contributes to a general weakening of the moral fiber of society. America has been plagued with one financial scandal after another in recent years. We see it in the corporate world with companies like Enron and Worldcom. We see it in the political arena with scandals like the ones surrounding Tom Noe and Jack Abramoff.
; The Jewish tradition teaches us that there is a slippery slope with regard to ethics. If people see this form of “cheating”—copying music files—as being OK, other forms of cheating are also likely to be taken more lightly. The Talmud forbids us to steal, even from a thief, בתר גנבא גנוב, וטעמא טעים if you steal from a thief, you get a taste for thievery.
Ted Olson (former US Solicitor General) makes a similar argument in an op-ed piece he authored that appeared in the Wall Street Journal: “These systems [that allow swapping music files] also inflict immeasurable damage to our standards and morals. By enabling millions of persons, especially our children, to take property without paying for it, we are sending a potent message that it is acceptable somehow to steal music if it is done in the home with a computer rather than stuffing CDs from a store into a backpack and walking out. That is why many organizations who represent traditional values have joined in the effort to stop this systematic and widespread theft – unified by the belief in the simple and ancient principle: "Thou Shalt Not Steal".”
The eighth of the Ten Commandments is lo tignov, you shall not steal. It is not OK to steal just because it’s easy to steal, and it’s not OK to steal just because the person being stolen from won’t even know he’s been ripped off.
The Torah teaches us that abstract things like ideas and designs – and by extension, books and music – are valuable. Let’s treat them that way.