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A True Legacy
By David Freilich, 12th Grade
מאוצרות הרב
From the treasures of the Rav
There is great de- ing world, Noach and his
bate amongst Chazal and children merited to estab-
the Meforshim as to lish a world which was
whether Noach was a granted a covenant of per-
Tzadik, an Ish Chesed, or manence, "I will confirm
Noach and the Ark of Chesed my covenant with you ...
not and in what context
that might have been. Rav Chaim Yaakov Goldvicht never again shall there be a
ZT"L in his captivating Sefer on Medrash, Asufas flood to destroy the earth." (Bereishit 9:11) Certainly,
Maarachos (or Asufat Maarachot) makes a very com- to build a world requires great merit, all-the-more-so
pelling argument that it was Noach's Chesed that es- a world of enduring nature! What gave this world a
sentially brought Chesed into this world. covenant of enduring existence, unlike the previous
world that was destroyed?
(from Asufat Maarachot, Bereishit vol. I)
Malki-Zedek's answer, "We performed chesed
The Midrash (Tehillim #37) relates a fascinat- with the animals and birds," gave Avraham a new in-
ing dialogue between Avraham and Shem (Noach's sight into the degree of dedication to chesed which is
son): Avraham asked Malki-Zedek (Shem): How did necessary for the creation to endure. For a full year
you leave the ark? He said to him: Through the [merit Noach stood on-call to the various needs and de-
of] tzedaka that we did. Avraham asked him: Was mands of his many "guests." This was a year of total
there tzedaka for you to do? Were there poor people giving and self-sacrifice, which required absolute dili-
there? Only Noach and his children were there, so gence and perfection, "ONE TIME we were late ..."
with whom did you do tzedaka? Shem responded: To
the wild animals, the beasts and the birds. We did not Noach and his children learned from this that
sleep the entire night, but rather we were feeding this G-d does not desire their existence alone, but only
one and that one. One time we were late [feeding the when it serves as a means to uphold and to elevate the
lion], and my father left injured. creation in its entirety.
Avraham's question, "How did you LEAVE In this way, the ark served as a "Beit Midrash"
the ark?" requires explanation? Did they need a merit for the study of chesed. In it they learned to share
to leave the ark and go out to a ruined and desolate their confined space with others. In it they were
world? Once they were saved from the wrath of the trained consistently to dedicate themselves, with all
flood, obviously they would leave the confines of the their might, to others. In it they learned and were
ark! Chazal were alluding here to a deep and funda- brought to understand that their lives are dependent
mental concept. "Leaving the ark" signifies the first on complete dedication to the mission of an enduring
step in building a renewed world after the flood. This world, chesed. This is what Chazal taught: "Planted in
was the meaning of Avraham's question to the house of Hashem" (Tehillim 92:14) ... This refers
Shem, with what merit did you leave TO to Noach, who G-d planted in the ark. (Bereishit Rab-
ESTABLISH A NEW WORLD? bah 26:2) The ark was not merely a means of salva-
tion alone, but rather a "House of (continued on page 4)
Moreover, whereas even Adam
did not succeed in Weekly D'vrei Torah on the Parsha
building an endur- from the Shiurim of HaRav Yosef Dov Soloveitchik
(Continued on page 4)
4 דברים היוצאים מן הל“ב
(MeOtzros Harav — Continued from page 3)
G-d," a Beit Midrash of chesed. This les-
son of chesed is what served to save him.
Walk With Me R. Shmuel b. Nachmani said,
"Fortunate are the righteous who turn the
By Marc Eichenbaum, 11th Grade attribute of justice into the attribute of
mercy. Wherever it says "Elokim," it refers
to the attribute of justice ... [but here] it
says, "Elokim remembered
Noach" (Bereishit 8:1). What did he re-
“Noach was a righteous man, perfect in his generations; Noach walked
with God” (6;9) member about him? That he fed and sus-
tained the animals all twelve months in the
Later on, the Torah tells us that Hashem told Avraham Avinu, ark. (Bereishit Rabbah 33:3)
“Walk before Me and be perfect” (17:1). What is the difference between
Avraham, who was told to walk before Hashem, and Noach, who was told The chesed that Noach performed
to walk with Hashem? The Midrash Rabbah answers this with a parable: A with the animals in the ark is what turned
father was walking down the road with his two sons. He told the younger the attribute of justice that was aimed to-
son, “Give me your hand and we will walk together.” To the older one he wards him into an attribute of mercy and
said, “Go ahead, walk before me.” The older asked, “But Father, why don’t grace. It was this lesson of chesed that in-
you want my hand as well?” The father answered, “Your brother is still
young and I am afraid that he will fall and stumble. However, you are older
spired Avraham to embrace this trait, as
and I am not afraid that you will fall or stumble.” This is the same with the Midrash Tehillim concludes: Avraham
Avraham and Noach. Noach was like the younger son and needed said [to himself]: These [people], had they
Hashem’s assistance down the road of life and therefore “Noach walked not done chesed with the beasts, wild ani-
with God.” However Avraham, “the older son” was stronger in his faith mals and birds would not have left from
and thus the Torah states that Avraham was commanded to “walk before
there, and because he delayed himself a
Me.” (A shabbos Vort by Rabbi Yisroel Bronstein)
From this we see that Avraham was greater than Noach. The little he received his "reward" and was in-
Ba’al HaTurim illustrates this with the following observation. The pasuk jured. I, if I do chesed with people who are
writes when describing Noach, “He was Excellent….” The gematriya of in the image and likeness of angels, cer-
Haya-was is equal to 20. This shows that Noach was considered excellent tainly will be saved from harm. Immedi-
in 20 generations, the generations from Adam HaRishon to Avraham Av- ately, "He planted an eshel [in Beer-
inu. For these 20 genrations, Noach was excellent, but when Avraham ar-
rived Avraham took the crown of excellence.
sheva]" (Bereishit 21:33) -- eating, sleep-
The pasuk states that he was a “righteous man in his generation.” ing and lodging. In the ark the spiritual
Most Mefarshim explain this to mean that he was only righteous in his gen- character of Noach and his children was
eration; however, if he lived in the time of Avraham he would have been shaped and stamped with the seal of che-
considered a regular person. However, there is a different understanding of sed, and in this way they became qualified
this pasuk. There are some Mefarshim who explain this pasuk to mean that to be the seed of a renewed world. Even
even though he lived in his generation, one of corruption and immortality,
he was still righteous. Avraham's renowned trait of chesed found
Using this explanation we can all learn a tremendous lesson from its roots and sprung forth from this "Beit
Noach. Many times we look at ourselves as small and insignificant beings Midrash" of chesed!
in this world. We look at great Rabbanim and tzadikim and ask ourselves,
(Continued on page 5)
Have a wonderful Shabbos!
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Dvarim Hayotzim Min Halev 5
This week’s parsha, Parshas Noach, is a transition between Breishis and our forefather, Avraham. It took a
long time for someone like Avraham to be born. The Mishna Pirkei Avos says there were 10 generations from
Adam to Noach and 10 from Noach to Avraham. What special merit did Avraham (the first of the ushpizin to visit
us on sukkot) have that enabled him to become Av Hamon Goyim, the father of many nations?
The story of Avraham is very strange, mostly from the fact that there is no explicit stories of his early life. We
know a lot about Avraham, but those stories are mainly from Midrashim. We are told that he was born in the year
1948 (Hebrew calendar), he recognized Hashem as the creator of the universe at age 40, destroyed his father’s idols,
that he was thrown in a furnace by Nachor and clung to his belief in Hashem, but none of these incredible tales are
explicitly told in the Torah surprisingly.
One famous story told about Avraham as a child was his destruction of his father’s idols. The story says that
one day Avraham had to guard the ‘idol store’ while Terach, his father, was away on a trip. The first person that
came in was told that a man 60 years old is worshipping an idol that is only 2 days old, and he left. Another woman
came in and wanted to give a flour offering to the idols. Avraham then destroyed all the idols and put an axe in the
hands of the biggest ones. When Terach came home he saw the destruction and asked Avraham what happened.
Avraham replied a woman brought an offering for the idols, they fought over who should get it, and the biggest one
took an axe and destroyed the other idols, after which it ate and fell asleep. When Terach said that was impossible,
Avraham said then why worship or sell these. Terach took the whole family to Nimrod who was the king at the
time, and who worshipped the sun and the fire. Nimrod said “I worship the sun and fire and you worship an unseen
god. I am going to throw you into a huge furnace and lets see who wins.” Charan, Avraham’s youngest brother said
if Nimrod wins I will side with him, and if Avraham wins I will side with him. Avraham was saved from the fur-
nace, but Charan was killed in it, which is why the passuk says Charan died “al penay terach.”
Rabbi Fohrman quotes the genealogy of these last 8 pesukim in parshas Noach to show what made Avraham
so great as to merit being the first of the avos. The passuk says that “ vayikach avraham v’nachor lahem nashim,
Shem ashes avram sarai, vshem aishes nachor milkah bas charan avi milkah v’avi yischa”. The passuk says
“vayikach” in singular language after Charan died to show that Avraham and Nachor took wives with a singular
purpose, to perform the chessed of yibum. Avraham married Sarai and Nachor married Milkah, and the pasuk ends
that Charan was the father of Milkah and Yischa. Rashi says Yischa is Sarah because both mean princess, and the
Baal Haturim says Sarah in ’at-bash’ is bgatz, which has the same gematria as yicha!!! Rabbi Fohrman points out
that the generation destroyed in the flood and the generation of the tower of bavel were both interested in one thing,
making their own name great. Avraham’s greatness, and the reason he is known as chesed, is because that is not his
(Continued on page 7)
Good Shabbos!
6 דברים היוצאים מן הל“ב
The Parsha begins with the words “ These are Most mefarshim explain the words “vtimalai
the children of Noach”, yet instead of listing his chil- haaretz chamas” to mean the people of the time were cor-
dren, the Torah first publicizes lists of praises for rupted. However, Rav Eliezer Shach reads the passuk very
Noach. Why does it list praises for Noach instead of literally. He explains the passuk to mean that the earth it-
immediately listing Noach’s children? self was corrupted. This sheds a new light on Creation.
Rashi, explaining the words “Ki hishchis Kol Bas-
Rashi explains: Since the pasuk mentions him sar es darcho al Haaretz” writes that the birds and animals
[Noach], it [the Torah] relates his praises, as the were mating unnaturally. Since the world was created for
pasuk in Mishlai says “The memory of the righteous man, people influence all the Creations of Hakadosh Ba-
[shall be remembered] for a blessing”. However, the ruch Hu. When we act out of character, they act out of
Maharal notes that the Torah frequently mentions character.
tzadikim such as Avraham, Yitzchok, and Yaakov Rav Shach extends his point further too even in-
without mentioning their virtues. Why does the To- clude inanimate objects. “Vtishachais Haaretz” the earth
rah omit their praises but include Noach’s? itself, the soil and rocks, were corrupted!
The Maharal answers that the Torah lists the When Hashem tells Noach “Vhinini mashchisam
praises of a tzadik only when his name is mentioned es Haaretz” Rashi explains that the passuk can be read to
in conjunction with evil people, because the actions be saying that “I will destroy the earth itself to a depth of 3
of the wicked cause the Shechina to depart and be- tfachim.” Since Hashem gave the world to Man, what we
come hidden from the world, thereby causing people do with this present will have an influence on the earth
to forget the righteous person. In references to such itself. Therefore, the top 3 tfachim had to be destroyed as
instances, the pasuk in Mishlai teaches us: the mem- well.
ory of a tzadik [should be remembered] for a bless- We have to realize that our actions don’t only af-
ing. However, when the names of the righteous are fect ourselves, but they affect other people and other parts
mentioned independently, and not in conjunction of creation. We must always remember to stop and think
with the wicked, then the eye of Hashem gazes con- of what the repercussions of our actions will hold in store
stantly upon those who fear Him. Therefore it is un- for us, our fellow man, and the earth we live on.
necessary to make special mention of the tzadik’s Have a great shabbos everyone!
The Generational
(David Freilech — Continued from page 1)
derasha was therefore taught by Noach, a person de-
scribed as a tzadik, to show that while his physical
offspring were vital for the continuation of the world, Gap
it was only his spiritual offspring, his good deeds,
which gave value to the world. By Gavi Nelson,
This explanation can also help us understand 11th Grade
another Rashi earlier. The passuk writes by the birth
of Noach that “Lemech lived one hundered and ויהי שם אחרי הולידו את ארפכשד חמש שנה ויולד בנים ובנות
eighty-two years, and he begot a son (Bereishis “And Shem lived five hundred years after begetting
5:28).” The language of the passuk is different from Arpachshad and he begot sons and daughters.” (11:11)
the psukim preceding it, as most of the other psukim
mentioned the name of the son that was born, while Interestingly, in recounting the ten generations
the passuk here only mentions Noach’s name in the from אדםuntil נח, the תורהwrites the word, “וימת,” and
next passuk. Rashi here explains that the passuk he died,” after each person mentioned. Upon mention-
wanted to use the Hebrew word for son (ben), as it is ing the ten generations between נחand אברהםhowever,
related to the Hebrew word for building (boneh). The the Torah uses the word, “ויחי,” “and he lived,” referring
passuk obviously wanted to hint that Noach was the to how long the individual lived. Why does the Torah
one who was destined to build the world. One could make this distinction between the generations?
ask why the passuk only referred to Noach, when as הרב יעקב משה חרל"פ זצ"לcites a משנהin פרקי אבות
Noach’s father, Lemech was also the father of all hu- (5:2), where it is stated, “There were ten generations
manity? We can explain using Rav Moshe’s answer from אדםto נחwhich informs us how great is Hashem’s
that Rashi wasn’t referring to Noach’s position as patience, for all these generations continued to anger
progenitor of mankind, rather he was saying that only Him, until He finally brought upon them the waters of
Noach, called a “righteous and perfect man”, was fit the flood.” In the following משנהthe תנאsays, “There
to rebuild the world. were ten generations from נחto אברהם, which informs us
This concept is shown in another Rashi as how great is His patience, for all those generations con-
well. Rashi tells us that the Tanna Reb Yehoshua tinued to anger him, until אברהם אבינוcame and received
said: “While Hashem knew that the generation of the the reward that was due to them all.”
Flood was going to sin and as a result suffer destruc- While these משניותare similar because each
tion, he still created them for the sake of the right- demonstrates Hashem’s patience, the endings are clearly
eous people who were destined to arise from amongst different. אברהם אבינוreceived the reward for all of his
them.” It is apparent from this Rashi that the genera- predecessors, after which no destruction had occurred.
tion of the Flood, filled with evil people deserving of נחhowever, was himself saved, while the rest of the
destruction, would have been worthless in the eyes of world was obliterated. The generations that preceded נח
Hashem if not for their righteous descendants. apparently had no זכותים, not even one that they might
have been able to combine with those of another genera-
The Gemarah in Shabbos (127A) tells us that
tion. They were completely wicked, having done no
the study of Torah is the equivalent of every mitzvah.
good deeds. Therefore the תורהwrites, “וימת,” “and they
The Dvarim Hayotzim Min Halev, as a paper which
died.” They did nothing but sin; they left nothing but
tries to give words of Torah to hundreds of people in
destruction. They died, gone from this world, having
New York area every week, tries in its own way to
been completely obliterated by the מבול. The generations
keep the world going. The entire staff and I would
from נחto אברהם, however, had some merit. There was
like to thank all of our readers for spreading Torah,
something to salvage, since unlike the previous ten gen-
and we hope that through our endeavors and the ef-
erations, they were not totally wicked. אברהםinherited
forts of the whole Jewish people, Mashiach will
their זכותים, and by doing this gave them life. They lived
come and all of our tefillos will be answered!
on through אברהם אבינו. They did not die; they were not
Have a great Shabbos! gone forever.
Adapted from Sefer Darash Moshe Good Shabbos.
Dvarim Hayotzim Min Halev 9
(Rabbi Kaminetzky — Continued from page 1)
Noach. It is true, that Noach was not as great as the holy men
of Avraham’s generation. However, that did not stop him
from striving to be the best that he could be. He was still
The Surrounding
classified as a tzadik. The lesson is that in whatever genera-
tion a person finds himself in, in whatever surroundings, he
Generation
needs to try and be classified as a tzadik in that generation, By Ian Hawk, 10th Grade
by the standards of that generation. A person can never
give up and say, “Well, my whole generation is corrupt, I will
never be a tzadik compared to the past generation, so why
bother to do the right thing at all”. This week’s parshah, Parshat Noach, opens up
Yet, there is an opinion in the Zohar, that in fact with the pasuk, “Eileh toldot noach, noach eish tzadik
Noach did not do as much as he could for his generation, so tamim hayah bdorotov.” This translates to “this is the
much so that the Navi Yeshayahu (54:9) refers to the waters history of Noach; Noach was a righteous man flawless
of the Flood as “Mai Noach”, the waters caused by Noach. in his generation”. This opening statement of the par-
When Hashem invites Noach into the ark, he says “Come into
shah draws a lot of controversy. One famous question
the ark, for I have seen you as a tzadik before me in this
generation”. In his sefer Be’er Moshe, Rabbi Moshe Yechiel asked by Rashi is whether this passuk simply means he
Epstein, The Ozerover Rebbe, sees Hashem trying to hint this was a righteous person in his generation, and in another
to Noach. “You have great abilities, you are a tzadik, if you generation he would just be an average Joe, or that if he
pray for them, perhaps I will change my mind”. But Noach lived in a righteous generation he would have been even
misses the signal and the rest is history! more righteous and more of a tzaddik?
Why did Noach not see the writing on the wall? Throughout the mforshim this point is greatly
Why didn’t he get the message to pray for the generation? R.
debated but there is still one important lesson we can
Levi Yitzchak of Berditchev, the Chasidic master says that
the answer can be found in another Medrash quoted by Rashi learn from Noach. We learn from Noach that no matter
on this same pasuk. “Noach was from those of small belief. how bad the influences around us are, or how much
He believed but he did not believe”. Says R. Levi Yitzchak, pressure we are under, we can not succumb. Even if we
it’s not that he wasn’t sure the flood was coming; he was not are not the most flawless person, if we just take little
sure about his own capabilities. He was humble and unas- steps with our emunah and bitachon in hashem, he will
suming, and did not think that his prayers could help or his provide for us, save us and help us in life.
efforts could change those around him. Therefore, the
Shabbat Shalom.
Medrash says that Noach was bitten by a lion on the Ark.
Noach should have had the courage, self-confidence, and
strength of a lion to stand up and pray for his generation and (Stories of Greatness — Continued from page 2)
try to bring them closer. The gemara in Gittin (56a) says that
while humility is generally speaking a crucially important
In the hope that someone there would be able to
trait, sometimes it is not the right trait to actu upon. “The give him a clue to aid him in his undertaking, he said
humility of R. Zecharia destroyed the Bait Hamikdash.” over the woman's story. When he said the story with the
Since R. Zecharia did not stand up for what was right, he ulti- taxi and mentioned the deceased's name, an old man,
mately led to the destruction of the Temple. A person needs dressed in traditional Moroccan clothing, jumped up in
to know when to say “I am dust and ashes” (Breishis 18:27), the corner of the room. "I am one of the grave diggers
and when to say “The world was created for me” (Sanhedrin
who buried the taxi driver. The second one just passed
37a).
R. Yisroel Salanter recommended his student, R. It- away and I am here in his home to console his family..."
zele Blazer, to be the Rav of St. Petersberg. R. Itzele came to The rabbi immediately gathered two others, cre-
his Rebbe and said, “Rebbe, how can I be the Rebbe of this ating a mini rabbinical court, and they took this man's
town, there are so many Jews, so many problems; I am scared testimony. The next day, Rabbi Eliyahu delivered a let-
I will not know how to advise them and to lead them?!”. An- ter to the woman, permitting her to remarry. Relating to
swered R. Yisroel, “It is due to your exreme humility that you his fellow judges in Beersheba's rabbinical court what
are exactly the right person. Someone who is too confident
will let the position get to his head. You will be sure to lead
had happened the day earlier, Rabbi Eliyahu exclaimed,
with humility, but when the time comes to stand up, you will "This is the power of a prayer that comes from a sincere
have the strength for that as well”. heart."
May we all have the courage to stand up for what is
right, make the right decisions, and believe we can make a
difference even when it seems that all is going against us all (Chabad.org, Dovid Zaklikowski)
around us.
10 דברים היוצאים מן הל“ב
HALACHA
VÉÜÇxÜ
Downloading Music from “Sharing” Websites
By Rabbi Aryeh Lebowitz
I. Introduction. Part of the magnificence of the Talmud money to build the bridge have the right to charge
is that it is very rare for there to be a necessity to write money for using it. In fact, when the Gemara (Sukkah
new principles after the Talmud. The rabbis of the Tal- 30a) illustrates the idea expressed in the passuk in Ye-
mud not only discussed specific cases, but provided a shayahu (61:8) that Hashem despises “gezel,” it uses an
logical construct for later rabbis to work within. The ha- example of paying a toll as the prototype of “gezel”. The
lachic permissibility of downloading music from the Gemara (Sanhedrin 109b) illustrates the evils of Sedom
Internet may seem to be a new issue that obviously can- through the practice of charging more money to swim
not be found explicitly in classical rabbinic sources. across the water than to cross the bridge, strongly imply-
However, as with (almost) all technology-driven ques- ing that charging to cross a bridge is justified. Indeed,
tions, the application of ancient principles guides us in Tosafos (Kidushin 59a, referring to a case of a fisherman
understanding our obligations and responsibilities in the who has put out bait in a specific area) writes that when
modern world. In this essay we will discuss the halachic one has invested in a business endeavor, others are not
issues pertaining to the illegal downloading of audio or permitted to take advantage of the investment free of
video from “sharing” websites. We will outline two charge.
schools of thought in dealing with this issue and the Another common argument is that preventing
practical differences between the two. It should be noted one who has no plans of purchasing the music from
that this discussion does not include the dissemination of downloading it for free, is a form of “middas Sedom.”
divrei torah, as the halachos may be differently influ- The concept of “middas Sedom” is that if one party
enced by the responsibility that a Jew has to share his stands to gain from a transaction, while the other party
Torah with others (see Shach, Choshen Mishpat 292:35, does not lose, it is unethical to stop the party that stands
Rama 292:20 and Meishiv Davar I:24). to gain from realizing their benefit, and they are not re-
II. Ethical Considerations. We associate “sharing” with quired to pay for the benefit received. The record com-
generosity and kindness. The term “music sharing sites” pany would therefore be practicing a form of tyranny by
is probably a subconscious attempt to rationalize behav- preventing people from enjoying music at no cost to the
ior that we would otherwise dismiss as illegal and there- company. Among other weaknesses, this argument can
fore unethical. People tend to justify the propriety of only be made if one is certain that absent the possibility
downloading music without paying for it in several of a free download, he would not purchase the music. If
ways. the consumer would otherwise purchase the music, the
transaction can certainly not be classified as middas Se-
Unlike stealing from a retail shop, where one would dom. However, the argument of “midas Sedom” is not a
physically take an item that does not belong to them and particularly credible one. Tosafos (Bava Basra 12b s.v.
remove it from the possession of its rightful owner, kegon) speaks about a squatter who enjoys living on a
when one downloads music they reason that they have- property that is not currently being used by the owner.
n’t taken anything and have not cost the record company While charging the squatter rent would be a violation of
anything by their actions. The fallacy of this claim can middas Sedom, Tosafos points out that it is absolutely
best be demonstrated by the universally accepted prac- forbidden to squat on somebody else’s property in the
tice of paying a toll to go over a bridge. The bridge may first place. In other words, the concept of middas Sedom
have been built years earlier, and it may not cost the only limits the ability of the proprietor to charge for ser-
transit authority any meaningful amount of money for vices, but it does not entitle the beneficiary to partake of
any single individual to traverse the bridge. However, the benefit. If this applies to one seeking shelter, it
since it costs a lot of money to build a bridge, it is rea- (Continued on page 11)
sonable to assume that the people who invested the
Dvarim Hayotzim Min Halev 11
HALACHA
VÉÜÇxÜ Continued
should apply a fortiori, to one who downloads music. Responsa Machane Chaim (Choshen Mishpat II:49)
Indeed, one may argue that downloading music is itself points out a possible precedent to the notion of
an act of middas Sedom. The Gemara (Sanhedrin 109a) “stealing” intellectual property from the Gemara
records that Soddomites would steal tiny quantities that (Sanhedrin 59a) which prohibits a non-Jew from learn-
on their own do not have real value, but the cost of re- ing Torah on the grounds that the Torah is considered an
trieval for the victim is substantial. Similarly, download-“inheritance” (morasha) for the Jewish people, and for
ing a song is by itself insignificant, but the cost to the nobody else. Apparently, even though the non-Jew who
company of millions of free downloads is prohibitive. learns Torah is not stealing anything tangible, he is con-
sidered to have misappropriated intellectual property not
III. The Strict Approach. In the recently published book, intended for his use.
Copyright in Halacha, the author, Rabbi Nachum Me-
nashe Weisfish, consistently refers to two basic ap- Maharam Schick (Responsa, Yoreh Deah 156) re-
proaches to the issue of taking intellectual property, jects the viability of the halacha of a non-Jew learning
which he refers to as “the majority opinion” and “the Torah as a source for intellectual property in general.
minority opinion.” Rabbi Weisfish does not explain pre- First, the Gemara is likely speaking in an hashkafic
cisely how he determined which opinion was in the ma- rather than a strictly halachic context, using the term
jority. For the purposes of this essay we will therefore “gezel” only as a non-literal expression. The Gemara’s
refer to them as “the strict approach” (majority) and “the subsequent comparison of a non-Jew learning Torah to
moderate approach” (minority). While neither approach adultery seems to demonstrate a clear aggadic tone to the
has a particularly positive view of the practice of taking Gemara. Second, considering its Divine origin, Torah
intellectual property, there are several important practi- may have a unique status that cannot be equated with
cal differences between them: other intellectual property.
The “strict” approach, which seems to be held by A second possible precedent for the idea of
Rav Moshe Feinstein (Iggeros Moshe, Orach Chaim “stealing” intellectual property can be found in the writ-
IV:40:19), and is cited in the name of Rav Elyashiv ings of Rabbi Shimon Shkop (Chidushei Rabi Shimon
(Copyright in Halacha) maintains that taking intellectual Yehuda Hakohen, Bava Kama 1), who points to the ge-
property is considered stealing the same way that taking mara in Bava Kama (29b) that considers a pit that one
tangible property is considered stealing. (Rav Feinstein digs in a public thoroughfare to belong to the person
speaks of making an unauthorized copy of a tape being who dug it vis-a-vis the damages that are caused by the
an “issur gezel”.) When a person conceives of an idea pit. While the individual who dug the pit is certainly not
and makes it accessible to others for a price, he main- the owner of any tangible section of the public thorough-
tains ownership of the idea. This ownership is main- fare, his contribution toward reshaping it gains him a
tained for an indefinite period of time, even absent local certain sense of ownership of it. Similarly, argues Rav
copyright laws. Therefore, there would be no difference Shkop, one who is recognized as the person who devel-
between one who would otherwise not buy the material oped an idea, even absent technical laws of ownership, is
and one who would have bought the material. In either considered by the halacha to be the owner of the intel-
case, taking intellectual property is regarded as stealing. lectual property.
This would also mean that even using illegally
downloaded music would be forbidden, even if some- One can question the equation of liability for dam-
body else downloaded it, since using property known to ages with rights of ownership. It is entirely possible that
be stolen is also prohibited. Furthermore, stealing is pro- one can be considered the owner in terms of establishing
hibited regardless of whether the victim is Jewish or not. his liability for a pit he had dug in the public domain,
Accordingly, downloading secular music would be pro- and still not assume that he is granted any rights of own-
hibited. The exact halachic source for the idea of steal- ership.
ing intellectual property is subject to some debate.
(Continued on page 12)
12 דברים היוצאים מן הל“ב
HALACHA
VÉÜÇxÜ Continued
Rav Zalman Nechemia Goldberg has pointed to a A third concern relates to the prohibition discussed
Gemara in Bava Metzia (34a) which allows for one to in the Gemara (Bava Basra 21b) to take away another
sell a sheep while retaining the rights to future produc- person’s livelihood. Obviously, if nobody pays for music
tion for himself. Similarly, one may sell a computer pro- it would be very difficult for musicians to make a living.
gram or music, while still retaining the rights to future Some might argue that this prohibition may only apply
reproductions. It would follow that unauthorized repro- to other Jews for whose livelihood we are in some sense
ductions of the material would constitute stealing from obligated, and may not be a factor in downloading music
the original owner who has never sold those rights. In written and sold by non-Jews (though many artists and
fact, breaking the conditions of the sale may invalidate record company executives and employees are Jewish).
the entire sale and prohibit even the person who origi- (See Responsa Chasam Sofer, Choshen Mishpat 49, 69
nally paid for the music from using it. and 79).
Rav Yosef Shaul Nathanson (Responsa Sho’el While it would seem that all would agree that one
u’Maishiv I:1:44) argues that a source to consider the should avoid illegally downloading music, there may be
misappropriation of intellectual property as stealing is practical differences between the stringent and lenient
unnecessary. The Torah standard of ethics is a higher positions:
standard than that of general society. Consequently, if
general society views stealing intellectual property as A. Whether one may borrow an mp3 device from a
immoral, the Torah cannot possible maintain a lower friend who has illegally downloaded his music,
standard. even for a short period of time, might be subject
to debate between these two opinions. If the
IV. The “lenient” approach. Rav Shlomo Zalman Auer- problem is one of stealing, one should not use
bach (cited in Copyright in Halacha) maintains that the stolen goods at all. If, however, the only con-
Torah does not recognize the concept of “intellectual cerns are those of dina d’malchusa dina and/or
property” and misappropriation of any such property costing somebody their livelihood, it could be
would not fall in the category of “stealing”. However, argued that neither is violated by listening to a
even so, there are several other halachic problems with friend’s music for a short time. Of course if lis-
illegally downloading music: tening to your friend’s music substitutes for your
own purchase of the music, even the lenient
The Gemara in several places (Nedarim 28a, Gittin opinion would prohibit it on the grounds that you
10b, Bava Basra 54b, among others) teaches us that (at are taking away the livelihood of the musicians.
least with regard to monetary law between a Jew and a
gentile) “the law of the land is the law”. Since it is ille- B. Very often, software developers will attempt to
gal in the United States to download copyrighted music, lure customers by offering free trial versions of
it would be halachically prohibited to do so as well. (see the software for a limited period of time. While
Beis Yitzchak, Yoreh Deah II:75). many customers use the trial version for the allot-
ted time and then make a choice whether or not
The Tur (Choshen Mishpat 368) develops a concept to purchase the software, some continuously in-
of “minhag bnei ha’ir” (the custom of the people of the stall trial versions in succession thereby avoiding
city), which teaches that even if a particular restriction is any need to ever purchase the software. It would
not technically law, but is agreed upon as ethical prac- seem that the stringent view may consider this to
tice in that particular city, Jews are bound to observe that be a form of stealing, while the more lenient po-
practice, and are perhaps, as member of society, as- sition may consider it permissible on the grounds
sumed to have agreed to its social conventions. One may that nothing illegal is being done (and it is there-
argue, however, that the proliferation of “sharing” web-
sites is evidence to an absence of an established “minhag (Continued on page 13)
bnei ha’ir” in this case.
Dvarim Hayotzim Min Halev 13
HALACHA
VÉÜÇxÜ Continued
fore not a problem of dina d’malchusa). Clearly, hood of other people. The life of a Jew demands fulfill-
it may still be a problem of costing the company ment of “v’asisa ha’yashar v’hatov” (doing that which is
their livelihood, certainly if the company is Jew- right and good), which in turn highlights our role as a
ish-owned or employs a significant number of righteous and sanctified people. It should be emphasized
Jews. that the requirement of “yashar v’tov” is not merely a
hashkafic concept, but a halachic obligation. The Ram-
V. Conclusion. We have outlined the various viewpoints ban (Devarim 6:18) writes that the Torah could not pos-
developed by poskim toward the modern day problem of sibly delineate every single action that a person may or
using copyrighted material, specifically as it relates to may not do, and therefore provides an overarching obli-
illegally downloading music from the Internet. While the gation of doing that which is yashar v’tov. Even in the
exact Talmudic source that most precisely addresses this absence of the ample source material mentioned in this
issue is a point of dispute, the general theme that essay, the basic sense of yashrus that a Jew must have
emerges from the majority of poskim is that one should demands that he hold himself to a higher standard and
be very careful about taking advantage of modern tech- avoid activities that are illegal and unethical.
nology in this way, particularly as it relates to the liveli-
By Yonatan
Robbery — The Aivazi
Aveirah that
Sealed the Deal 11th Grade
In this weeks parasha, Parshat Noach, Hashem told Noach that he would destroy the world in a flood because “the
earth is filled with 'chamas' (violence)". Rashi comments on this and says that the people of that time were to be destroyed be-
cause of the robbery that they committed. However, Rashi commented on a pasuk before and wrote that their main aveirot was
Sinas Chinam and immorality.
A very simple question one can ask is why did Hashem say it was robbery that caused them to be destroyed, and not
the other two aveirot? Also, why didn't Hashem punish them by taking their property away to atone for their aveirot? This
would seem to be a more appropriate way of showing them why they were being punished.
The Melo Haomer answers that Hashem only takes away wealth to atone for aveirot, but this is only if the wealth had
been acquired through honest means,so that the decree will feel like a real punishment. However, if he did not acquire his
wealth through honest means, then it is not really his property and so it can not atone for his sins. Had the Dor Hamabul not
committed robbery, Hashem would have spared them the mabul and would have first taken their possessions away.However it
was the robbery that 'sealed the deal' and so Hashem had no other choice in punishing them.
Welcome back everyone. I hope eve- binate. You see, back in Morocco my hus- Associate Editors
ryone had great and inspirational summers. band was a taxi driver. Ten days after our Andrew Mermelstein
director of production
Since we have just concluded a little less marriage he traveled from one city to the
than 2 months of fervent prayer to Hashem next and I never heard from him again. They Judah Abittan
Dani Scheinman
so that He will mercifully forgive our sins, I say he died in a crash, however, they cannot Yitzie Scheinman
thought it would be appropriate to begin this locate his body, only the wrecked car. I never layout editors
year’s first edition of D”H with a powerful found his body or those who buried him, and Yechiel Auman
story of an answered prayer. (Adapted from a I was told that I cannot remarry unless some- rabbinic articles
story on Chabad.org): one testifies that he or she actually saw the Avrumi Blisko
Rabbi Mordechai Eliyahu, of right- corpse. Now that I am in Israel, I thought that Adam Goldstein
student articles
eous memory – who would later serve as the perhaps in Morocco no one could help me,
Israeli Chief Sephardic Rabbi – was the but maybe here a rabbi could assist me and Production Staff
Nison Basalilov
youngest rabbi in the Israeli rabbinate when, permit me to remarry. Since then, I have been Jeremy Bienenfeld
at the age of 28, he joined the rabbinical praying here." Ben Kantowitz
court in the city of Beersheba. Even at that The rabbi then asked, "But, why have Aharon Rubel
Avrumi Schonbrunn
relatively young age, he was renowned as a you not entered the offices to speak to us?" Benjamin Watman
brilliant scholar who was exceptional in his "Who are you?" responded the Sephardic סופרים/Authors
care and personal attentiveness to the needs woman, "you are but messengers. I am pray- Yonatan Aivazi
of all whom he met. A short time after he ing to God, the Creator of the world; He will Ariel Bagley
Dan Bamshad
was appointed to his post, he noticed a decide if I should remarry or not!" David Beer
woman sitting outside the offices of the rab- Rabbi Eliyahu, admiring the woman's Marc Eichenbaum
Jonathan Eidelstein
binate reciting Psalms, tears in her eyes. This strong faith, traveled to Netivot, to Rabbi Eli Gattman
recurred for days, with her closing her Book Yisrael Abuhatzeirah, the famed and right- Yered Elisha Ginsberg
of Psalms only as the rabbinate office closed eous Sephardic sage (known as the "Baba Yitzchak Ginzberg
Shmuli Gutenmacher
its doors for the day. His curiosity and con- Sali") who hailed from Morocco, to see if he Ian Hawk
cern aroused, one day, the young rabbi asked had any idea to whom to turn. The sage told Elisha Ishaal
Aaron Joseph
his assistant to call the woman into his office. him that he should be in touch with his Barak Klammer
"Tell me what you are doing here," Rabbi brother, the "Baba Chaki." "He knows every- Eli Lonner
Eliyahu gently asked when she appeared be- one; he will tell you who was in charge of Yonatan Mehlman
Gavi Nelson
fore him. "How could we help you?" burials at that time in that city." Adi Pasternak
She responded with a distinct Moroc- Rabbi Eliyahu took a taxi from Jonny Perlman
Ilan Portnoy
can accent: "I just moved to Israel from Mo- Netivot to Ramla, where the Baba Chaki re- Shalom Rosenbaum
rocco. The government settled me in this city, sided. The sage from Ramla told him that the Yigal Saperstein
and I immediately sought out the local rab- (Continued on page 2)
David Silber
Alex Selesny
Daniel Stroh
Jesse Steinmetz
Benjamin Watman
David Weitz
The DRS Yeshiva High School For Boys Maggid of DRS
700 Ibsen Street, Woodmere, NY 11598 Yehuda Isaacs