Volume 31 Number 54
Produced: Mon Feb 14 5:39:45 US/Eastern 2000
Subjects Discussed In This Issue:
Collect Call game
[Frank Silbermann]
Collect call game, copying software for a friend
[Michael Kramer]
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From: Frank Silbermann <fs@...>
Date: Sun, 13 Feb 2000 11:02:01 -0600 (CST)
Subject: Re: Collect Call game
Perhaps some issues of MLJ have been failing to reach me (a possibility,
since, with no explanation offered, half of my submissions never seem to
appear), but I do not understand Russel Hendel's assertion that, based
on Rambam Sales 18:4., deception is permitted "when there is omission of
PERTINENT information about the sold item (but no lie has been told)"
Rambam specifically said that it was permitted in the cited examples
because it was OBVIOUS AND KNOWN that the information was being
withheld. How does this apply to situations such as the collect call
game where it is NOT obvious and known that information is being
withheld?
A seller is free to offer or not offer whatever deal he pleases. By
skinning the beans the merchant is saying "My offer consists of good and
bad beans together; I will not sell the good ones alone, even though
this is what you might prefer to buy." The Rambam correctly rules that
there is NO DECEPTION in this.
How does Rambam's permission of an act on the grounds that it is NOT
REALLY deception justify acts which really are deception?
Others have commented that Halacha forbids of from "stealing the mind"
of others, eg. by inviting someone to dinner when you know that he
cannot attend (giving him a false impression of your generosity and
friendship), or even asking a merchant the price of his wares when you
have already decided in your own mind not to buy. These examples seem
to me quite analogous to the collect call game in which one pretends to
be purchasing a phone call one has no intention of buying, in order to
obtain a free sample. To my knowlege, none of Russell Hendel's posts
speak to these objections.
If there is a Psak that permits deception in business, I certainly want
to know it. In the past I have chastised gentiles for claiming that
Jewish businessmen feel free to use deception to win an advantage over
customers and partners. If this is true, I owe these people an apology.
I should told them instead that if the Torah permits certain forms of
deception in business, then it is only right and proper to do business
this way, and that gentiles are wrong to object.
Frank Silbermann
<fs@...>
www.jpfo.org/askrabbi.htm
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From: Michael Kramer <mikek@...>
Date: Wed, 9 Feb 2000 03:37:28 -0500
Subject: Collect call game, copying software for a friend
There has been an interesting string of questions and discussions
relating to what constitutes stealing and how to scrupulously abide by
"choshen mishpat" standards of halacha. This is a welcome trend in
religious Jewish life, as we are all too familiar with the (perhaps
untrue but unfortunate) stereotype of the religious Jew upholding only
3/4 of shulchan aruch, and leaving choshen mishpat as an academic
exercise.
However laudatory this trend is, it is important to distinguish between
strict observance of clear "halchot" and of "Dina D'Malchuta Dina" on
the one hand, and "chumrot" (stringencies) and "hiddur mitzvot" /
"lifnim misurat hadin" (going an extra distance than is strictly
required) on the other hand.
I believe that most of the questions that have been raised recently (as
listed above in the subject line) fall into a gray area where there is
no clear halachic violation of a prohibition, rabbinic or scriptural. (I
will defend this below.) That is not to say that I disagree with those
who recommend not to engage in these practices. Since these are gray
areas, it is perfectly ok to "be machmir" (be stringent), and feel good
about "going the extra distance" in one's observance. (See the Netziv in
Haamek Davar to Bamidbar 15, 41 on the value of choosing a specialty
area to uphold stringently). I believe it is misguided to pontificate
that these things are "prohibited" in an absolute sense (You can
construct scenarios that are over the line and more black &white
prohibited. But not these areas as they have been anecdotally described
recently) .
Thus, if you wish to be "machmir" for yourself I respect you. If you
tell me that *I* should refrain from these things and in your
not-so-humble opinion I am guilty of violating an issur, then you are in
my opinion very wrong.
Moreover, if you are among the naysayer crowd and since these practices
are common, by adopting my analysis you might gain the observance of the
mtizva "B'tzedek tishpot et Amitecha" (loosely translated "judge your
fellow man charitably and don't suspect him or her unnecessarily).
So now let me explain why I see no problem in the practices raised
recently. (Maybe I have missed some - each situation has to be analyzed
carefully). I submit what I think is a more critical analysis of the
facts and of the halacha than the "machmirim" have presented. Choose
your style and stick with it!
1. Visiting a store to browse when I am planning to buy from a
different catalog or the Internet -
a. This is what they want. Merchants want to get me into their
store. There are amazing statistics about impulse buying that will
astound the uninitiated. (Why do you think those high priced cereals are
piled pretty at the end of the aisle as if they are on sale even though
they are not?) They dont care why I come in, or if I buy (this
time). The merchants want me in and they want me in often so that the
law of averages takes over in the merchant's favor. I come to look at a
computer which I am going to buy on the Internet and I end up walking
out with a piece of software that really looked good - or plug in your
favorite impulse buying story.
b. "You never know" - It is also conceivable that the very item which I
thought I was going to buy on the Internet will be found on sale at this
store in a way that I will buy the very thing I thought I wouldn't
(maybe a persuasive salesman - you can think of lots of these
variations). So therefore, this activity is not objectionable at all. (I
know the Mishna / Gemara about Gneivat Daat when you ask a merchant the
price when you have no intention of buying - not relevant to Kmart in my
opinion).
2. The collect call game -
a. I am not a lawyer, but here's my understanding of the law. Just
because a company says that you can't do something doesnt mean it is
stealing. American law depends on the self-advocacy system to resolve
gray areas and ultimately determine if the company is right or not. If
it is a gray area I can "take on" the company - legally!! (Clearly, some
things are stealing. If I connect up a TV to the cable service that I
have not paid for, or if I pull in a satellite signal and unscramble it,
the courts have upheld that the cable company can sue me for theft of
service.) Here's an example of a company forbidding a practice that they
had no right to forbid: About 30 years ago Ma Bell prohibited you from
connecting any device to the phone network that they didnt
manufacture. They asserted it was stealing from them (not renting the
device from the phone company), and would damage the phone network. A
company by the name of "Carterphone" manufactured a device that did some
neat thing, and sold it to business consumers. AT&T sued the Carterphone
company and some of the businesses which bought the phone device. The
court ruled that AT&T was dead wrong. In fact, it was AT&T that was (in
effect) "stealing" by engaging in anti-competitive monopolistic
practices. This eventually led to the break-up of AT&T. A similar fight
occurred with AT&T trying to prevent SPRINT from offering competitive
long distance service. The court ruled that AT&T was in the wrong.
Using this "advocacy" style of American law: Of course, if you ask the
phone company "can I use the collect call as a signal"? They will say
"you are stealing". BUT the fact of the matter is that they ALLOW me to
place that solicitation call for free. The phone company has the
technology to charge for a rejected collect call request, if they wish -
but they don't. They have done the calculation that by offering that
call for free, they statistically make XX million dollars on callers
that *do* accept the charges. Yes, I use their resources (switch paths,
SS7 links, channel slots on digital transmission systems - all this
great knowledge of the technology is irrelevant) but they *let me* do
that. Just because they say that I can only use it for a certain purpose
doesn't change the fact that they allow me to use it. (Someone suggested
an analogy to the fact that merchants allow for a certain percentage of
shoplifted merchadise in their business plans but this doesn't make it
ok to shoplift. That is correct- it is prohibited to shoplift, but the
analogy is wrong. The act of walking out of a store with non-paid for
merchandise is a prohibited act. The fact that the store merchant
statistically expects it does not make it legal for anybody to do
it. But in the collect call game, the act of making that call is not
stealing, the phone company says that the call is free. The better
analogy is to a merchant giving out some free promotional merchandise
which I take out of the store legally without paying. Let's say that I
rack up a truckload of free merchandise legally, and then I go to my own
shop and sell it. Can the store complain that they were only giving out
the merchadise for non-commercial use? Usually not. )
b. Besides the legal self-advocacy argument, the same argument from the
store browse case applies. I will eventually make a purchase from this
phone company even if I use this call signal for free.
c. And the "you never know" argument also applies. Once, my son called
me collect from Israel and to his astonishment I accepted the call
because I was under time pressure, and had an urgent message to get to
him. So every "signal" call is not inherently a stolen call. The callee
always has the option of accepting that call - irrespective of any
signal that was set up ahead of time. Why isn't this included in what
the phone company considers acceptable use of the call?
d. The California penal code citation is an interesting one. Again I am
not a lawyer, but this law against using a signal is not about collect
call signals, but probably directed at the callback technology. The
whole area of "Is callback technology legal" is a murky one. There are
(probably) many readers of this list working for companies that made
their millions on using parts of the network as a signal to have a
switch located somewhere else call them back. They maintained that it
was legal to do that. The established phone companies claimed that they
were stealing. Here's a citation from Altavista: CALL-BACK SERVICES ARE
LEGAL. On June 15, 1995, the Federal Communications Commission issued an
order which confirmed that call-back service using... URL:
www.entrepreneurs.net/stockburger/dcwlegal.htm (this site was down when
I tried to get there). (For those who aren't familiar with the term
"callback", what happens is that a customer places a call to a "dummy
number" located in some country and the purpose of that call is just to
signal a piece of telecom equipment -owned by the callback company - to
call the customer back. You have used the "incoming call" signaling
system (SS7, lineside alerting with the A and/or B bits flipping - real
resources) without charge, and this allows the callback company to call
you back cheaper - and charge you less for long distance.)
So go research this topic - and you will find that it is really
complex!!!! But there are now hundreds of companies in that business,
and somehow it is hard to imagine that they are all stealing. So I cant
figure out where the Calif penal code fits - it seems to be out of touch
with reality. My main point here is: if callback is legal to do
commercially and for profit - why shouldn't collect call signal be legal
for an individual???
3. Copying tapes, software etc for private non-commercial use -
Copyright law makes it illegal to copy a work - but the law explicitly
allows "fair use" of the material including the right to make copies
under certain conditions that are deemed such fair use. The limits of
fair use have not completely been established. Some limits have been
established in favor of the consumer. For instance - the Supreme court
ruled that VCR manufacturers were legally allowed to sell VCRs which
allowed consumers to make personal copies of copyrighted programs and
use those copies for personal purposes. (Another example of advocacy -
if Panasonic had been owned by a Jew - the strawman that some readers of
this list might construct is that if NBC claims that a manufacturing a
VCR is stealing then Panasonic shouldn't have gone into the business so
as not to steal instead of challenging NBC's self-enriching stand).
What is clearly illegal is to make copies and sell them. What is clearly
legal is to make "backup copies". Everything in the middle can be
weighed and judged on its merits. Some people won't make a copy of a
tape so they can have one next to their home stereo and one in the car,
but they will buy two copies. I think that those people are not properly
taking advantage of the fair use clause. One respected Rabbi I know has
said publicly that I can make a copy of a tape for a friend if I think
he will enjoy the music. He will more likely become a fan of this artist
and buy the next tape that the artist releases. I think that this can
fall under the fair use category as well. (Not selling the tape to
others, because that crosses over the line to commercial use in my
opinion). Figure out what is fair use in your estimation and "go for
it". If you find court cases that clarify fair use more, then
incorporate these rulings into your drawing of boundaries.
If I ask a friend to copy his software so I can try before I buy, then I
could define this as "fair use". How does the earlier respondent know
that such an arrangement between friends is not fair use? Has there been
a court ruling explicitly excluding this as fair use? I did a layman's
search of case law about six years ago, and found no such exclusion.
[Please add the following reference to my discussion of the "fair use"
doctrine: http://www.eff.org/cafe/gross1.html ]
As an aside - it has become somewhat common practice for seforim
publishers to include phrases in the front of the book that seem to
contradict the fair use doctrine. This validity of these conditions is
an interesting halachic question - my layman's opinion is that these
phrases have no legal or halachic validity. The idea of "Kal Tnai
Shebimamon Kayam" (any stipulation in monetary law is valid) here
contradicts Dina D'Malchuta Dina. The government has established by law
that no author of a work may deprive me of my "fair use" rights. This is
a condition that the government has ruled illegal. A summary article in
an issue of the RJJ Journal quotes achronim that say that I am wrong
here, but I don't understand how these rabanim understand the fair use
doctrine.
So to sum up: Take chosen mishpat seriously - I do not advocate
stealing. I advocate using common sense to navigate the gray areas, and
not to give these big rich companies the benefit of the doubt, just
because they say I can't do it. There are those who will protest "if you
allow this then why not closer to the line and pretty soon you are
stealing?". You are right. At some point you will get closer to the line
and I will agree with you that you are stealing. If you can't live with
this ambiguity then by all means be "machmir". But do not look down at
those of us who wish to use the American self-advocacy system within the
parameters of "Dina D'Malchuta Dina".
Mike Kramer
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End of Volume 31 Issue 54
