Friday, November 21, 2008

Downloading: An Essay for the MTA Academy News

This issue's ethical dilemma is:
“Downloading from LimeWire. You're not paying, but you're not taking anything tangible. Is this kosher?”
Technical note - LimeWire is a "P2P" or peer-to-peer networking service, in which users upload anything - movies, music, games, software - and can be downloaded, for free, by virtually anyone.

In my experience whenever I hold a Q&A session with a group of teens or college students, the question of downloading music, etc., is one of the first questions that will be raised. Moreover, even boys and men who in other issues are meticulous in their quest to act lifnim me'shuras ha'din (beyond the letter of the law), when it comes to this issue, they very much want to know the minimalist Halachic position – i.e., how much they can “get away with” and still technically be within the bounds of Jewish law.

Accordingly, let me begin by stating that from an ethical perspective, it behooves a Be en Torah who aspires to rise above mere technical compliance with Halacha, to refrain from any form of downloading which is questionable. Most of us – although we may deny this when we are in rationalization mode – know very well when what we are doing falls into that gray area. If you are still unsure as to the definition of this category, by all means consult one of your Rabbeim.

Returning, however, to the question of the minimalist Halachic position in this area, Rabbi Yitzchak Yosef shlita (the son of Rabbi Ovadia Yosef shlita) refers to the Gemara in Bava Metzia (24a-b) that discusses an object that was swept away by a tidal wave (zuto shel yam). In that case, we regard the object as a lot item whose owner has given up all hope of retrieval (l'achar yei'ush). This is the case even if the owner watching the tidal wave sweep away his possession declares and affirms that he is not giving up the hope of retrieving his object. Under the circumstances, his declaration is meaningless, as the hope of retrieval is regarded as little more than a fantasy.

Any music that is freely and widely available on the web falls into this category. Any hope that the owner may have of retaining or retrieving his intellectual property is futile and meaningless. Hence, one would be permitted to download such music for personal use.

Please note that this is not carte blanche. This logic will not permit:

  1. Uploading music to such sites.

  2. Copying from CDs or DVDs.

  3. Selling the downloaded music to others or sharing it with people who cannot access it themselves over the Internet.

  4. Downloading music from hacking sites.

Tuesday, November 11, 2008


"The Academy News" - the MTA student newspaper - asked me to answer the following question:

"I know my friend cheated on a test. What should I do?"

I responded:

The Gemara (Bava Metzia 83b) relates that R' Elazar the son of R' Shimon, was authorized by the government to arrest thieves. The Gemara then records that R' Yehoshua ben Korchah criticized him, writing to him: “Vinegar son of wine!” [I.e., the bad son of a good father (Rashi). R' Elazar's father was the great R' Shimon bar Yochai.] How long will you hand over the people of our God to their execution!?”

R' Elazar the son of R' Shimon wrote back to R’ Yehoshua ben Korchah: “I am ridding the vineyard of its thorns!” [I.e., I am ridding the Jewish people of its evildoers. The metaphor of a vineyard is based on a verse in Isaiah (5:7): For the vineyard of Hashem of Hosts is the house of Israel.]

To this, R' Yehoshua ben Korchah, in turn, responded: “Let the Master of the vineyard come and get rid of His thorns Himself.” [I.e., God can deal with the wicked without your assistance.]

Of course, the penalty here (death) was out of proportion to the crime (theft). Rashba and Rivash both state in their responsa (3:393 and 251, respectively) that R' Elazar the son of R' Shimon's actions were an example of the extraordinary powers a leading rabbi may exercise under extraordinary circumstances. If crime is so rampant that it threatens to cause a breakdown in society, the leading rabbis and courts are empowered to use all means necessary to repair the breach (see also Shulchan Aruch, Choshen Mishpat 2). This is true all the more so when they are authorized to take such measures by the secular government. R' Elazar the son of R' Shimon held that thievery of his generation was in such a category and he thus was permitted or even obliged to turn over these Jewish thieves to their deaths at the hand of the government (cf. Ritva). On the other hand, R' Yehoshua ben Korchah presumably disputed the necessity of applying these extraordinary powers (see Shulchan Aruch, Choshen Mishpat 388:9; see also Teshuvos Mishneh Halachos 9:380). Thus he condemned R' Elazar the son of R' Shimon's efforts to have these thieves killed.]

It would thus seem that a student should not take into his own hands the responsibility of alerting the “authorities” to the cheating of another student. The case may be made, however, that under certain circumstances a student may reveal to a rebbe or teacher that another student has cheated, if he does so for the purpose of the cheating student’s benefit — viz., so that the rebbe or teacher will demonstrate to him the error of his ways and help him to develop proper integrity and character (see Chafetz Chaim, Be’er Mayim Chaim 10:34).