Neil Netanel writes that a draft of his forthcoming, co-authored article, “Is Copyright Property? The Debate in Jewish Law,” (Theoretical Inquiries in Law, Vol. 12, No. 1, 2011) can be downloaded (for free) at the SSRN website
Professor Netanel and his co-author, David Nimmer, welcome comments and feedback.
The article will make up a part of their book, forthcoming with Oxford University Press in 2011, From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print.
Here is an abstract of the article:
Is copyright a property right? That question raises a host of thorny theoretical issues regarding the foundational underpinnings of both copyright and property. The notion that if copyright is “property,” it will or should resemble a perpetual, absolute, pre-political property right, has repeatedly infused judicial proceedings, legislative enactments, and public debate in both common law and civil law countries.
Like their common law and civil law counterparts, Jewish law jurists have engaged in protracted debate about whether copyright is a property right. Recent decades have seen numerous rabbinic court decisions, responsa (rulings in disputes or advisory opinions coupled with a lengthy exegesis on Jewish law in answer to questions posed), scholarly articles, and blog entries on such issues as whether it is permissible, without license from the author or publisher, to republish a book after the rabbinic printing privilege has expired; to copy and distribute software or sound recordings; to perform music in wedding halls; to make copies for classroom use; and to download songs from the Internet. And like in secular law, but for somewhat different reasons, the characterization of copyright as “property” has significant doctrinal consequences for resolution of these controversies in Jewish law.
There are numerous, and at times profound, differences in the terminology, form of argument, doctrinal specifics, and overarching legal framework of Jewish law and secular law in this area and others. Nonetheless, the arguments within the Jewish law debate have some intriguing parallels with those of secular law copyright. In fact, one finds the direct, if largely unstated, influence of secular copyright just below the surface in the debate about whether copyright is property in Jewish law.
An earlier article, also part of the project, is also available at SSRN here:
"Maharam of Padua v. Giustiniani: The Sixteenth-Century Origins of the Jewish Law of Copyright," Houston Law Review 44 (2007).
Contact info for Professor Netanel:
Pete Kameron Endowed Chair in Law
UCLA School of Law
405 Hilgard Avenue
Los Angeles, CA 90095