Shabbat Parashat Lech Lecha 5772

P'ninat Mishpat: The Ability to Levy Fines for Infringement on Intellectual Property Rights

Case: The plaintiff (=pl) put artistic work on a Wikimedia website. The foundation allows free access to the works on its site, even to be used in a commercial setting, with two major conditions: users must credit the artist; the user must display the license agreement code, so that the public knows that they too can use the work under the same conditions. The defendant (=def) regularly uses works from Wikimedia and usually credits the artist. He does not usually display the license code, which he did not feel was necessary. Pl caught def using a work of his without credit, complained, and received a few hundred shekels compensation. Recently he caught def doing so again, and is suing for 40,000 shekels as punitive payment.

Ruling: Def accepts the need to credit artists and explained how he failed to credit pl twice. He also started displaying the license code and pledged to be more careful in the future. Pl agrees that he did not incur losses by the infringement on his rights.

Halacha recognizes intellectual property rights, although there are different opinions as to the nature of the halachic basis. There is a difference, though, between safeguarding someone’s rights and penalizing a violator beyond damages. Beit din, since the time when authentic semicha ceased, is not authorized to rule on penalty payments, only on recovering losses, actualizing deserved profits, and the like. While the latter could justify beit din ruling payment of a few hundred shekels, it could not justify more than that.

The Knesset’s revised law on copyright infringement of 2007 enables courts to levy penalties up to 100,000 shekels even if no damage is proven from the infringement. We accept the government’s ability to legislate based on dina d’malchuta dina. This includes areas that regulate monetary issues between individual citizens (and not just between citizens and the state) when the law is within the spirit of the Torah (see K’tzot Hachoshen 259:3). There is no question that the Torah values giving credit to the originator of an idea and even equates not doing so with theft (see Midrash Tanchuma, Bamidbar 27). The Rama (CM 1:5) says that while beit din cannot enforce the Torah’s penalty payments, they may levy penalties made by contemporary rabbinical leadership. The S’ma says that this is within the power of the general leadership to make life livable for the community. The S’ma (2:2) says that it is justified to levy such payments either when an individual consistently violates a certain social norm or when society neglects a certain area of law or behavior, in which case an individual may be made to pay a penalty even if he is not known to be negligent in that area. Copyright law is certainly something that will not be kept carefully if there are no consequences.

The Knesset law gives logical guidelines to help determine the rate of penalty. Since pl did not lose from the infringement, def did not gain (since they only needed to credit and not pay), and because def took steps to prevent such violations in the future, beit din decided not to levy a large penalty. On the other hand, a token fine could encourage future violations and discourage people like pl from going to the significant trouble of protecting their rights in beit din, which is helpful for society as a whole. The balance struck was of a payment of 3,500 shekels. 

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