Intellectual Property: Legal Right is Not Moral Right

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pencil eraser. pencil eraser removing a written mistake on a piece of paper, mistake concept, black and white business tone.

Rabbi Shalom Carmy

Assistant Professor of Jewish Philosophy and Bible

Shalom CarmyRabbi Shalom Carmy

Let’s not talk about legal ownership, copyright law or rabbinic injunctions aimed at preventing plagiarism or republication without permission. What about intellectual fairness and public benefit, regardless of legal recourse?

Say I prepare tentative notes that you publish in my name without my permission. Ideas and formulations not intended for the public are now identified as mine, misrepresenting my beliefs and conclusions, misleading readers and often holding me up to ridicule.

Or you tape a class meant for a specific audience and then disseminate my provisional discussion, complete with hesitations, casual remarks and thought experiments. Likewise, if you publish material I intended to print but in a different sequence than I planned, again, you are distorting my work without my permission.

You may claim, rightly or wrongly, that there is intellectual or moral gain from exposing my rough drafts and intimate conversations, but first and foremost you are invading my privacy. Whether I can launch injunctions or collect damages, you are treating me shabbily and interfering with my study and my work.

The next three examples are less straightforward.

Martin Buber supported World War I before he opposed it. He was not obligated to reprint his early pro-war writings. His failure to do so, even as he advertised his later criticism, encouraged the impression that he had never supported the German war effort. When Buber switched positions is significant for an understanding of his social philosophy and Zionism. I did not find out about this change until I began teaching Buber. Buber could not truthfully deny his history, and scholars were justified in unearthing it, but one can hardly insist that Buber had an obligation to reissue writings that he no longer agreed with and presumably regretted.[1]

We all know that on June 6, 1958, General de Gaulle ended a speech by shouting the words Vive l’Algérie Francais (Long live French Algeria), thus aligning himself with the Pied-Noirs who opposed French withdrawal from Algeria. His most recent major biographer, Julian Jackson, claims this is not quite right. De Gaulle shouted Vive l’Algérie; a moment later, after stepping back, he added Francais, perhaps because he realized the crowd was not satisfied. If so, de Gaulle edited the rough draft out loud in public. The army finished the editing by erasing the time lag between noun and adjective. Were they entitled to do so? This point strengthens the evidence that de Gaulle was already unenthusiastic about retaining Algeria.[2]

As editor of Tradition, I was occasionally presented with statements by authoritative rabbinic figures which we could not validate. It was awkward to admit we could not give credence to the author’s report, and of course we could not prevent publication on the internet or in other journals. Yet, our policy was not to reproduce such assertions without satisfactory verification. In an age of fake news and promiscuous rumormongering, we reasoned it was better to let an authentic conversation go unreported than to propagate dubious claims that take on a life of their own.  Sometimes the purported information was subsequently demonstrated to be fraudulent.

References

[1] For a recent survey, see Paul Mendes-Flohr, Martin Buber: A Life of Faith and Dissent (Yale, 2019)

[2] Julian Jackson, De Gaulle (Harvard University Press, 2018) 486.