Wednesday, January 03, 2007

Copying a CD

[While this is generally for Hashkafa type questions, this particular question has been asked so many times, and is very relevant, so I thought it should be included. If it isn't appropriate, I ask the Moderators to comment and I’ll remove it -taon]

Whether you are permitted to copy a CD depends: If you would have bought that CD and instead are copying it, then you may not copy it because you are causing the owner of the rights to that CD a loss or potential revenue. However, if you never would have gone out and bought that CD - let's say you wouldn’t want to spend the money - then you may copy it, because doing so does not cause anybody any loss, since whether you copied that CD or not, the owner makes the same amount of money.

And yes, this means that you need to employ intellectual honesty and decide whether your copying the CD will result in a loss of revenue for the owner. You need to be honest as to whether you would have bought this CD, because that's what the Halachah here depends on.

The common claim that the CD is sold "on the condition" that it is not reproduced is not a factor here, because even though it may say so on the CD, it is not true. If the CD were indeed sold on the condition that you may not reproduce it, that means if you violate the condition and in fact reproduce it, that would nullify the sale retroactively, and you would be able to go back to the person who sold you the tape, and demand he take the tape back and return your money. If the vendor would not agree to refund your money and take back his tape, then he really has no intention of making such a "condition".

The same thing applies to software. The fact that when you open the software it makes you check a box that says you agree not to copy it is not binding. Since at the time you bought the disc, you agreed to no such stipulation, therefore you took possession of the disc without agreeing to any such deal. The seller no longer has any rights to make any such deals with you after the sale is final and the disc has already passed into your possession. Compare this to a person who buys a box of cereal for instance, and when he opens the box a seal on the inner wrapping say, "You are not allowed to open this package unless you agree to stand on your head". Of course, once you own the package nobody can force you to do such a thing. Same thing with the software.

As far as Dina D'Malchusa, it is not that simple that copying a CD in a Halachicly permissible manner, that is, for personal, non-commercial use, is prohibited, especially if you are the owner of the CD. Different IP lawyers have given me different opinions, and when I did a Lexis-Nexis search it merely confirmed the lack of clarity, though it does seem that there is something of a discrepancy between the laws "on the books" versus the actual enforcement of the law and common custom. Here's one sample opinion, which you can see on the internet. Follow the link for the full piece

1. “Ripping” songs from CD - I have purchased to copy the songs so that I can play them on my iPod, computer(s), PDAs, and other devices.... I feel reasonably comfortable about ripping a song into iTunes and putting it onto an iPod, but I must admit that my comfort comes from the fact that “ripping” is a feature of the software and that Apple and the recording industry seem to have come to an accommodation on this issue. I’m not sure that I would have the same level of comfort if I only looked at the statutes and case law. When someone starts to have a half dozen or more copies of the same song file on various drives and devices, probably in a variety of file formats, I start to wonder whether you reach a point where it can be argued that having “too many” copies can expose you to liability.
That was from
http://www.corante.com/betweenlawyers/archives/2005/06/06/
ipods_and_timeshifting_fair_use_personal_use_and_the_digital_
copyright_morass.php

Consult your own legal authority on this.

But in any case, following the Dina D'malchusa in this case is a chumra, because of the many Poskim that hold Dina Demalchusa applies only to laws that govern the relationship between you and the government (such as taxes etc), but for regular Bain Adam Lechaveiro laws, such as what is considered stealing, we are not Halachicly bound to what the Dina Demalchusa says.

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