Are We All Thieves? Copying Music
by Rabbi Aaron Tendler
Dear Rabbi Tendler,
If I have Music on my ipod that I copied from my friends music library, and I would not (REALLY I WOULDN’T ) buy it otherwise but I like the cd or song and listen to it every once in a while, is it considered stealing? and what about cds you used to have or your married siblings have, can you copy those … thank you so much!!!!!
Name and Seminary withheld upon request
Thank you for your important question. Believe it or not, this is one of the easiet questions to answer- yet at the same time it is one of the most difficult questions to answer! The easy answer is that it all depends on what restrictions the artist or whoever “owns” the song have placed on it. If they say no copying allowed, and you have copied the song to your ipod, this would be theft (I’m assuming that you copied contemporary Jewish music, in which case it is likely that there was a “Mechirah Al Tanai”, a conditional sale restricting unauthorized copying. Music with a generic copyright may be copied for personal use, if you would not purchase it otherwise, and only resale to others would not be allowed.) The difficult part is- how do you know exactly what they are restricting you from? There are some situations where a person is permitted to make an assumption that an artist gives permission, for example if you purchased a CD and you make a copy just in case it may scratch. Then the question arises- can I now keep the backup copy in my car, lend it to a friend, or give it to my daughter going away for a year in seminary? There are so many different situations and variables involved in this, that it is almost impossible to give a thorough answer that would cover all circumstances.
I’m taking the liberty of pasting here an answer given by Rabby Yisroel Belsky Shlit”a of Yeshiva Torah V’Daas (and posted on the torah.org website) that sheds light on some of these issues. I hope you find it helpful!
Rabbi Aaron Tendler
QUESTION 82: COPYING ONE’S OWN CD FOR SAFEKEEPING
Can I make a copy of my own CD or tape, and put it away, in case it breaks or gets lost?
I think it is universally accepted that when you buy a CD, you are allowed to make a backup copy of the CD. This way if you break or lose the CD, you still have a copy to replace the original, and you don’t have to buy another one. I tried to look into this, and I believe that this is the accepted practice – that a person who buys a tape or CD can make a backup copy of it.
The bottom line when making a copy is that there shouldn’t be two people who have the same tape or CD, when only one paid for it. That’s the easiest way to define the central issue. If two people have use of a tape or CD at the same time, that means both people should have paid. If there are two users, there should have been two customers. But if there is one user who just wants to make sure that he doesn’t lose his tape or CD, and makes a copy, then we only have one user, with an extra backup, and that’s allowed.
If it breaks, and I hadn’t made a copy, can I borrow the same title from a friend, and then make a copy for myself?
If it breaks and you had forgotten to make a backup, does that mean you are now stuck, and have to go out and buy another original version of the tape or CD? I would say that you could act as if you had been wise and prudent in the beginning, and could make a backup now – by making a copy from someone who has one. The producer of the tape or CD doesn’t expect there to be two users who buy three originals. His intention is that there are two users who buy two original copies. You’re not taking away from his business, or causing him a loss.
I think it can be done because you had the right to do this before you lost it. You just assumed that you wouldn’t break or lose it.
QUESTION 84: MAKING COPY OF CD FOR SPOUSE
I bought a CD that I listen to in my car. Can I make a copy so my wife can listen to it in her car also?
The rule of thumb is this – ask if you are making a copy instead of buying it. If you did not have the ability to make a copy, would you buy another one? If so, you would be required to buy two, i.e. pay for two.
The reason it’s permitted for someone to make a copy to use in the car as well as at home, is because a person can’t be at home and in the car at the same time. If he couldn’t make a copy, he would have to carry the CD back and forth between his house and his car. He makes the copy for the convenience of leaving one in the car, and having one at home, so he doesn’t always have to take it back and forth. But if he couldn’t make a copy, this ‘convenience’ is probably not important enough for him to actually buy two copies. So when you make the copy for the car, it’s not to copy an item that you would otherwise buy, because you wouldn’t have bought two to begin with. You are just making the copy for the car because this is more convenient for you.
However, having one for yourself and then making a copy for your wife – that’s different. Perhaps if you couldn’t copy the CD, then you would actually buy two. Perhaps both of you want to listen to the CD at the same time. In that case, you’d be making a copy to save yourself the price of the second one, which is prohibited.
On the other hand, it’s also possible that you and your wife are very frugal, and that you would never buy two. Instead, you tell your wife, “We should buy two different CD’s, and I’ll listen to one and you’ll listen to the other one. Then later, when we get tired of listening to our CD’s, we’ll switch. It will be better, since instead of having only one CD that we have to share, we’ll have two instead.”
Still, it’s not that common for people to buy two of the same CD, even in the case of getting one for himself and the other for his wife. But if that’s what you usually do, then you must pay for the copy.
Assuming I made a copy for the car, and the original is at home, how important is it that I know, for example, that my kids aren’t listening to it at home while I’m in the car listening to mine. So it ends up that both CDs (the original and the copy) are being used at the same time. Should I make sure they’re not being used at the same time, or is that not important?
The fact that they are being used at the same time is not really going to change things. It’s whether you would have bought two of them or not. When it comes to kids, I think it’s more common for a person to get one for the kids and one for themselves, because the kids will probably end up damaging it. On the other hand, if you’ve already heard it a lot, and you wouldn’t mind taking risks and giving it to the kids, then it should be all right.
So you have to be honest with yourself? Just ask yourself: Would I have normally bought a second copy? If the answer is yes, then you have to buy another copy. If the answer is no, then you could make a copy and both use it.
Yes, I think so, but you have to be very honest with yourself.
So the question is how honest you are being with yourself?
Yes. If you’re not too honest, or if you doubt that your soul-searching is that accurate, then follow the rule by kashrus: “When in doubt, do without!”