Copying music, yashrus, and the new information economy

So a minor blog battle has been waged between Yachdus (here, here, here, here, here, here) and Blog In Dm (here, here, here, here) about copying music, and particularly copying Jewish music. This is a very complex subject, and I don't intend to dissect it here.

But one running theme was the argument that even if it is halachically permitted, a sense of "Yashrus" should tell us that one should not do it. Violating this ethos makes one a naval be-reshus haTorah. The counterargument was that it may well be that, because halacha permits it, the Yashrus of the Torah is indeed that there is nothing wrong with it, and that this sense of "Yashrus" is the imposition of modern, non-Torah values.

I think that there is some merit to both positions. I am reminded of the midrash (in Bereshit Rabba 31:5), in which the generation of the mabul would gather around a man who brought a basket of peas to the market to sell, and each would steal less than a shava peruta, so as to be exempt from punishment. But the end result was that the man was less penniless and pealess. By a similar token, each person might copy the Jewish music and it might not be considered technically theft, but the end result is that the poor Jewish musician is left without a means of parnassa.

Of course, one could muster other sources in the opposite direction. Is it theft to steal information? For example, when Hillel was working as a woodchopper, he would still use his meager means to pay entry to the Beis Midrash. But when he did not have even that, he was willing to eavesdrop via the skylight. And he wasn't condemned for theft of the shiur.

The problem with the "Yashrus" argument is that Yashrus is really extremely subjective, though because it is "Yashrus", the people who maintain it don't realize its subjectivity. But there is a reason that a great proportion of the US population has downloaded music or movies, despite laws against it. To tape a TV show via a VHS tape is entirely permitted. If you somehow forgot to plug in your VCR, or it malfunctioned, and so you download that show via a file-sharing programming, did you now do something wrong? Ethically, how do you distinguish between the two? In Australia, it is illegal to VHS-tape TV shows, Is it Yashrus in the US but against Yashrus in Australia?! And libraries are costing publishers $100 billion a year!

I wonder, assuming there is indeed a disconnect between halacha and ethics, whether that disconnect is deliberate or accidental. Koheles states (1:9):

ט  מַה-שֶּׁהָיָה, הוּא שֶׁיִּהְיֶה, וּמַה-שֶּׁנַּעֲשָׂה, הוּא שֶׁיֵּעָשֶׂה; וְאֵין כָּל-חָדָשׁ, תַּחַת הַשָּׁמֶשׁ.

9 That which hath been is that which shall be, and that which hath been done is that which shall be done; and there is nothing new under the sun.

(except of course that above the sun, in Godly matters, and halacha, there is chiddush.)

Since there is no new reality under the sun, halacha can apply without issue to any new situation. Two partners fighting over a cow is comparable to two partners fighting over a car. And precedent helps establish what the halacha is, in each newly discovered situation. But I wonder if the new Information Economy is different, where data is what is bought and sold, and where is is relatively easy and cheap to duplicate that data. This might have occasional precedent in halacha and aggada, but the focus and context would be different. And had it been available to Chazal, they might well have had derashot or dinim derabbanan to address it. Or confronting something unexpected that needed fixing / addressing, they might have innovated a takkana because of tikkun olam. Nowadays, we are not so empowered nor motivated, and so we innovate with novel applications of existing precedent. But this might conceivably lead to an accidental disconnect of halacha and yashrus.

Note: Nothing here intended halacha lemaaseh. Consult you local Orthodox rabbi with any practical halachic questions.