A discussion of Halachic topics related to the Parsha of the
week. For final rulings, consult your Rav.
Consumer Competition (Part 2)
It has become customary for Jewish book publishers and cassette
tape producers to prohibit copying or otherwise reproducing any part of
their materials under any circumstances. What, if any, is the halachic
background for this prohibition?
DISCUSSION: The poskim, in their written works, hardly deal with this issue.
It is important, therefore, to present some of the arguments that may be
made on either side of the question(1):
On the one hand, it may be permissible to copy such material based, in part,
on the following arguments:
COMPLETE OWNERSHIP - When one buys a book or a tape he may do with it
whatever he pleases. He may destroy it, lend it to a friend, or make a copy
either for himself or for a friend. Since, after all, he paid for the item
in full, he is entitled to unrestricted use.(2)
INTELLECTUAL PROPERTY - Some poskim maintain that it is halachically
permissible for one to benefit from "intangibles" such as another person's
idea or invention. Once the creator has committed his wisdom or talent to
paper or tape, he no longer owns anything of material value. If so, nothing
tangible is being taken away from the rightful owner.(3)
But a strong case may be made for prohibiting copying and reproducing
BENEFITING FROM ANOTHER PERSON'S LABOR - Although, as stated, many poskim
do not expressly prohibit benefiting from another person's creativity, when
creativity is one's business the rules are different. If by copying someone
else's creation you are causing him a business loss, it may be prohibited
according to the majority of the poskim.(4) [According to a minority view,
beis din even has the power to force the copier to pay the publisher
whatever profit he has generated from his copying.(5)]
GOVERNMENT LAW - In many countries the law prohibits copying or reproducing
materials in any form. Halachah follows government law whenever the intent
is to protect the safety and welfare of the citizenry.(6)
RETENTION OF OWNERSHIP - The publisher may claim that his wares are for
sale subject to certain restrictions on the buyer. This parallels the
Talmudic case where a seller has the right to withhold certain rights from a
buyer,(7) provided that he does so at the time of sale. Since the publishers
state explicitly that copying is forbidden, it may be argued that their
statement is tantamount to a "provisional sale."(8) This is known in
halachah as shiur b'mechirah, i.e., a sale with partial retention of
INTANGIBLES - Some poskim do not differentiate between tangible and
intangible possessions. In their opinion, the owner of intangible items has
the halachic power to prohibit others from infringing on his ownership.(9)
None of the above arguments, either pro or con, are exhaustive or
completely irrefutable, especially regarding copying for personal use.(10)
It goes without saying, however, that one who copies a published or a taped
work against the wishes of the publisher or producer stands a good chance of
transgressing a serious, possibly Biblical, prohibition. Indeed, Harav M.
Feinstein(11) writes that one may not copy a Torah cassette tape without the
explicit consent of the producer. He goes on to say that one who does so
commits a form of theft, but he does not explain the source for his ruling
or the reasoning behind it.(12) Other prominent rabbis have rendered similar
Harav S. Wosner(14) allows copying individual pages from a published book
for classroom use. A careful reading of his responsum implies, however, that
this is permitted only when we can reasonably assume that the publisher
would have no objection. If the publisher, however, clearly objects, it
seems that it is prohibited to disregard his objection.(15)
Note, however, that there are certain publishers and producers who do not
object to copying or reproducing their work under certain limited
conditions, such as classroom use. In any case, one must be particular to
ask each company or author if and how they allow copying, for laxness could
result in the violation of a serious prohibition.
A possible exception to the above is when a book is out of print and no
plans for reprinting are underway. One can argue that in such a case the
publisher or author has nothing to lose, for there is no possibility for
making a sale. Indeed, some poskim advance the argument that the author is
pleased when his work is studied or heard by additional people. A rabbi
should be consulted.
QUESTION: Does the mitzvah of Lo salin - timely payment - apply to a yeshiva
or other public institution?
DISCUSSION: This mitzvah requires an employer to pay his worker before the
day [or night] of his employment is over, or on the day [or night] that his
wages are due. But Shulchan Aruch(16) rules that Lo salin applies only when
an employee is hired directly by an employer. If, however, an employee is
hired through an agent who makes it clear that it is the employer's
responsibility to pay the employee's salary,(17) then neither the employer
nor the agent transgresses Lo salin.(18) Rama adds that whenever an employee
is aware that the person doing the hiring is not the actual boss, but merely
a company agent, then Lo salin does not apply.(19)
A. It follows, therefore, that for the Biblical prohibition of Lo salin to
apply, two conditions must be met: 1) The employee must be hired directly by
the employer, not by an agent or an agency; and 2) there must be an "owner,"
one individual who is legally responsible for paying salaries and bills. If
there is any ambiguity concerning who, exactly, is responsible, or if the
person responsible for paying is not the one who actually promised the
salary to the employee, then the Biblical prohibition of Lo salin does not
B. Based on this definition of terms, Harav Y.S. Elyashiv is quoted(20) as
orally ruling that if a public institution such as a yeshiva is late in
paying its employees, the Biblical prohibition of Lo salin was not
transgressed. This is because a yeshiva is not a private enterprise which
has one owner who is responsible for paying the bills and salaries. Rather,
a yeshiva generally has a board of directors who appoints a principal or an
executive director to hire the staff. The principal or executive director
are "agents" of a non-specific "owner" (the board or the institution), who,
according to the above-stated guidelines set by the Shulchan Aruch, are not
affected(21) by the prohibition of Lo salin.(22)
C. In addition, a separate argument can be made for exempting yeshivos and
other non-profit organizations from the prohibition of Lo salin. It is all
too well known that yeshivos and other public institutions are not exactly
cash-flow operations. When they are forced to delay payment to their staff,
it is because they lack the necessary funds. Shulchan Aruch rules decisively
that an employer who has no money to pay his employee does not transgress
the prohibition of Lo salin. Thus, yeshivos that are late in payment would
not transgress this prohibition even if a yeshiva is considered an
"employer" according to the guidelines stated above.
D. Moreover, an employee of a yeshiva knows - prior to his employment - that
it is possible that he may not be paid on time. Since he took the job
anyway - knowing that it was a distinct possibility that he would not be
paid on time - his case is similar to that of an employee with whom the
employer has made an explicit pre-condition that he will not pay on time.
Such a condition is halachically valid.(23)
E. But it is important to stress that we are defining the parameters of one
specific mitzvah only, that of not paying a worker exactly when his work is
completed or his pay is due. This is a mitzvah with limited applications,
whose purpose is to show special sensitivity to a worker's needs and
expectations. This mitzvah has nothing to do with the overall obligation of
paying one's bills, debts, etc. in full and as soon as possible. Anyone who
deliberately and brazenly withholds a worker's salary transgresses at least
two different Biblical prohibitions(24): "You shall not cheat your fellow
"(by depriving a worker of his earnings; Rashi) and "You shall not rob".
Even an employer who intends to pay his employee but dallies with him by
making him come back several times for his wages, transgresses a Rabbinical
prohibition based on the following verse(25): Do not say to your fellow go
and come back go and come back and tomorrow I will give you. This
prohibition applies to everyone, even one who technically does not
transgress Lo salin according to the very specific definition given
1 See The Journal of Halachah and Contemporary Society # 21, pgs. 84-96, for
a review of this subject by Rabbi Y. Schneider.
2 See Chasam Sofer C.M. 2, who debates this question.
3 See Beis Yitzchak Y.D. 2:75, who discusses this theory.
4 There is a Talmudic basis for this claim based on the view of Tosafos
Kiddushin 59a, in the name of Rabbeinu Meir, which is endorsed as practical
halachah by many of the authorities, see Rashdam 259; Chasam Sofer C.M. 79;
Parashas Mordechai C.M. 67; Nachalas Tzvi C.M. 237. Maharsham 1:202.
5 Masa'as Binyamin 27.
6 Beis Yitzchak Y.D. 2:75, based on the Shach Y.D. 165:8.
7 See Bava Metzia 34a, where the concept of shiyur is mentioned, concerning
one who sells sheep yet retains for himself its fleece and offspring. See
also Bava Basra 63a. The comparison, though, is not exact, since in our case
the seller retains something intangible.
8 This argument is advanced by Rabbi Z.N. Goldberg in Techumin, vol. 6, pgs.
181-182. See also vol. 7, pgs. 360-380.
9 See Shoel u'Meishiv (Kamma, 1:44). See also Minchas Yitzchak 9:153, who
proves that this was the view of the Chafetz Chayim.
10 See Pischei Choshen, Geneivah, pg. 287, who tends to be lenient when
copying tapes for personal use. He does not, however, issue a clear
11 Igros Moshe O.C. 4:40-19.
12 It is also not clear if in the case discussed there the copier bought the
tape or merely borrowed it for the sake of copying it.
13 See Heart to Heart Talks, pg. 54, quoting Harav C.P. Scheinberg.
14 Shevet ha-Levi 4:202.
15 See Pischei Choshen, Geneivah, pg. 287, who disagrees altogether with
Harav Wosner's lenient ruing concerning copying pages for classroom use. See
also Sheraga ha-Meir 4:77, who prohibits copying both published materials or
tapes even for personal use as long as the item is available for sale.
16 C.M. 339:7.
17 If, however, the agent said that he is responsible to pay, then Lo salin
would apply to him.
18 For a deeper explanation of why we do not invoke shlucho shel adam k'moso
concerning this halachah, see Tosafos Rid and Ritva to Bava Metzia 110b and
Meshech Chochmah, Kedoshim 19:13.
19 Indeed, Shulchan Aruch Harav (Sechirus 18) rules that even l'chatchilah
one may hire workers in this manner so as to sidestep the Biblical
prohibition of Lo salin.
20 Avnei Yashfei 2:118.
21 Harav Elyashiv, however, was quick to point out that the reverse is not
true. We have previously stated that Lo salin applies to property rentals as
well. Thus, if one owes a property rental fee to a yeshiva, he would
transgress Lo salin if the payment were late. Even though there is no
specific "owner" who demands payment, Lo salin still applies. Apparently,
the demand for payment does not have to come directly from the owner.
22 Other poskim, however, do not agree with this leniency; see Pischei
Choshen, Sechirus 9, note 66, who rules that an executive director who is
responsible for salary payments is considered like the owner concerning Lo
23 Shach C.M. 339:2.
24 Kedoshim 19:13. An additional verse in Ki Seitzei 24:14 states: You shall
not cheat a poor or destitute hired person. See Bava Metzia 61a and 111a for
the Talmudic interpretation.