Downloading Music

I have been asked a number of time to write about the downloading of music from the internet. So here are my thoughts, albeit not accompanied with the usual citations. The reason for that is that, more than most other posts, this is not something on which I want to give the impression of offering a definitive position. Ask your rabbi about this. The following are just my musings:

I think the issue boils down to two points, the latter for which there are three positions.

I. Dina De-Malkhusa Dina

Generally speaking, albeit with many details and exceptions, the law of the government is religiously binding on Jews based on the Talmudic principle of Dina De-Malkhusa Dina -- the law of the land is law. Since downloading music (without permission) is illegal, it should therefore be prohibited.

However, the principle of Dina De-Malkhusa Dina only applies to laws that are enforced. Obscure rules that happen to be on the books but no one follows and the government does not even bother to enforce are not religiously binding. For example, I have witnessed more than once R. Hershel Schachter cross the street (while walking) against a red light when there are no cars coming. Is that technically illegal? Is it enforced? Not in New York; everybody does it. While "everybody does it" is not an excuse to violate a religious law, unenforced governmental laws are entirely different.

When it comes to copying tapes and CDs for personal use (as opposed to copying them for sale, i.e. bootlegging), there is absolutely no enforcement of the "no copying" rule. Furthermore, I am not aware of anyone who was sued for copying CDs and giving them away to some friends. That seems to be entirely unenforced. In my limited knowledge, downloading music illegally is similarly unenforced, with the exception of a few high profile lawsuits a few years ago. If that is the case, it would seem that Dina De-Malkhusa Dina does not apply.

II. Halakhic Copyright Violations

Since secular law seems to offer no practical position on this issue, it moves to the hahakhic realm. If halakhah also provides no barrier, then downloading music without permission would be permissible. This issue was made most famous in regard to copying tapes. After I purchase a tape and it belongs to me, am I allowed to make copies of my tape for my friends? After all, once I buy the tape it is mine to do with as I wish. If I want to smash it to pieces or throw it off the Brooklyn Bridge, I can. So why can't I copy it? On this, I have heard three positions from my rabbe'im.

1. The tape is mine and I can copy it if I want. Conditions that some companies put on the sale, that if I copy it the sale is void, are just plain silly. What that means is that I can buy a tape or CD, copy it, and then return it to the store and demand my money back because the sale is void. I have heard this in the name of important contemporary posekim, but I will not name them unless I know that they have expressed this position in writing.

2. I have heard in the name of R. Moshe Feinstein that there is a separate problem of causing financial harm to another. Copying/downloading per se is not problematic. However, if it reduces a company's sales then it is considered causing damage and, therefore, prohibited. Anyone even remotely familiar with the current state of the music industry knows that illegal copying and downloading has caused huge financial damage to the entire industry. Therefore, copying/downloading is only permitted if you would otherwise not buy the tape/CD. Presumably, if you aren't sure then you should be strict. This approach is that taken by R. Yisroel Belsky.

3. R. Zalman Nehemiah Goldberg, in an article in Tehumin that I have somewhere in my files but cannot currently find, posits that sellers can retain certain right to the objects that they sell. In other words, a company can sell you a CD but not sell you the right to copy it or post it to the internet. Therefore, copying it or posting it is actual theft of the company's portion of the CD.

In conclusion, there seem to me to be three positions regarding illegally downloading music from the internet. Assuming that the government does not enforce the law against it, halakhah either permits it entirely, allows it only if you would otherwise not buy the music, or entirely prohibits it. So ask your rabbi.