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Shabbat Parashat R'ei 5777

P'ninat Mishpat: Copyright Infringement in Communal Gift part I

(based on ruling 76038 of the Eretz Hemdah-Gazit Rabbinical Courts

Case: The defendant (=def), a settlement community, decided to give as a present to its few hundred families, magnetic signs with a certain design and the families’ names on them. Their Director of Culture took a picture of a sign in front of family A’s house to a printing press and asked for a similar design (she tried to call that sign’s designer but when she did not succeed, proceeded). Because she did not like the outcome, she approached a designer who worked at a child care center belonging to def and asked her to quickly come up with an alternative. Half an hour later, the designer presented the design for a sign, which had the name and number of pl on the bottom; she took it off a Facebook site of designers. The signs with that design were given out and are now on the doors of many of the yishuv’s homes. Pl is suing for: 450 shekels for use of the design and 50,000 shekel penalty for copyright infringement. Def claims that they are exempt, because, as an entity, they did nothing wrong, and the Director of Culture acted without realizing that anything was wrong with what she was doing (she claims to not have noticed the name on the design and trusted that it was from a legal source).

 

Ruling: Our assumption is that the Israeli law protecting intellectual property rights (2007) is halachically valid, as was explained in Eretz Hemdah’s ruling #71036. There are three complementary grounds for requiring payment for such infringements: 1) it is a form of theft; 2) the infringer received benefit that he did not pay for; 3) there is an injunction created on behalf of society to discourage people from taking without pay the fruits of the work of others, which de-incentivizes people working to be innovative.   

These different grounds are relevant regarding the question of def’s responsibility for the missteps of its workers. While it is not clear if #1 should relate to the workers or def, #2 and #3 certainly relate to def. They are the ones for whom the work was done and therefore who need to insure society that they are doing their part to not abuse the rights of contributors to society. Therefore, def is potentially obligated.

According to par. 58 of the intellectual property law, if the infringer did not know and should not have known that someone had rights to the thing he used, he is not subject to penalty. Can def, by means of its workers, claim to have been naïve? The designer, who works for def, took the design from a Facebook site, and as one who works in the field, must have known that it was the property of the person whose name appears on it. The Director of Culture had planned to take the design done from a specific house, without permission, and so she do did not infringe on rights only by mistake.

Next time we will analyze how the amount def has to pay was determined.

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