Thanks to David Weinberger whose tweet this morning directed me to this most interesting post.
I invite you to head over to the Wetmachine: Tales of the Sausage Factory blog, where public interest attorney Harold Feld has posted the text of a speech he delivered as part of a panel discussion on Tuesday evening at The Jewish Study Center, Washington, D.C. on the topic of intellectual property law and Jewish ethics. The panel discussion was inspired by the death (suicide) of internet and open access activist Aaron Swartz. (I posted a tribute to Aaron Swartz back on January 20, 2013 here.)
In his presentation, Feld references “the way of Sodom.” Before getting to the text of his speech he provides this introductory explanation:
I’m copying my speech below. I have elaborated a bit in this version for those not familiar with Jewish traditional sources. In particular, I need to emphasize that Jewish tradition does not regard “the sin of Sodom” as relating to sexual immorality. The “sin of Sodom” and therefore “the way of Sodom” disparaged by the Rabbis, refers to excessive love of wealth that causes cruelty and oppression (see this summary piece here). As Netaneal and Nimmer note in this article, the prohibition against behavior considered “the way of Sodom” acts to limit excessive copyright enforcement even for those who regard copyright as creating a form of property right in Jewish law. In my remarks reproduced below, I focused on the moral and ethical dimension of the prohibition on “the way of Sodom” rather than any practical application in Jewish copyright law. (links original)
“The way of Sodom,” as Feld elaborates in his presentation, comes from a passage (5:13) in the Pirkei Avot, or Ethics of the Fathers, a book of rabbinic ethical teachings covering a period roughly between 200 BCE and 200 CE:
There are four types of moral character. One who says: “what is mine is mine and what is yours is yours.” This is an average person. Some say it is the Way of Sodom. The one who says: “what is mine is yours and what is yours is mine,” is ignorant of the world. “What is mine is yours and what is yours is yours” is the righteous. “What is mine is mine and what is yours is mine” is the wicked.
Much to the surprise of the reader, the Rabbis called the first type of moral character—those who say “what is mine is mine and what is yours is yours”—as “the Way of Sodom.” But why? This attitude strikes us as almost perfectly reasonable, a way to assure a basic proper order in society. Indeed, Feld notes that the Torah speaks approvingly about personal wealth and private property. So what is going on here? Feld explains:
[T]he people of Sodom became so obsessed with controlling their wealth that the absolute control of wealth became the foundation of their morality. Anything that challenged the fundamental idea of “what’s mine is mine and what’s yours is yours” became repugnant in their eyes. They viewed the individual who chose to share as not merely deviant and immoral, but a threat to the very fabric of society.
Or, as we might say in modern parlance, sharing challenged the ‘business model’ of Sodom. So much so that the people of Sodom not only wanted to make sure they controlled their own wealth, they wanted to prevent anyone else from demonstrating the value of a rival business model. (emphasis added)
Feld connects this moral character to the contemporary scene:
[T]he obsession of the movie industry, the publishing industry, the pharmaceutical industry and others has created similar warping of our modern law. At the behest of the most wealthy companies in the country—indeed the world—we have laws that punish illegal copying more harshly than we punish swindlers who rob the poor of their pensions. We criminalize technologies that enable sharing because they might be used to violate copyright. We have dedicated units of our law enforcement to patrol for copyright violators instead of focusing those resources on crimes such as human trafficking—and we demand that other countries adopt even more extreme versions of our laws as a precondition of establishing trade agreements. We allow patent holders to sue businesses for using legally purchased off the shelf technologies in good faith. (first emphasis mine)
Feld goes on to see a pitiful expression of this obsession in the prosecution and harassment of Aaron Swartz, who many contend led him, tragically, to take his own life. Feld sees in the tragedy of Aaron Swartz a parallel to a well-known midrash of Sodom:
It is told in both Meschet Sanhedrin and the Midrash Rabbah. A woman took pity on a starving beggar by a well. She hid some bread in her pitcher and gave it to the starving man. The people of Sodom discovered this and brought her before a judge of the land. They sentenced her to be tied to the wall of the city and have honey rubbed in her hair as an example to others. The bees came and stung her to death. As her cries reached the Heavens, the Lord said: “Now is the Cry of Sodom great, and their sin is exceedingly heavy.” (Genesis 18:20)
What did Aaron do?
[He] promoted “dangerous ideas” that encouraged others to think that sharing was good and locking away knowledge was wrong. That was why it was so vitally important to [the federal prosecutors] to get Aaron Swartz to recant and admit guilt of some kind—any kind—and do some form of minimal jail time. Because above all else, they wanted anyone who dared to suggest that sharing might ever be the ethical thing to do be branded a criminal and a threat to society.
The righteous way of “what’s mine is yours and what’s yours is yours” may be too demanding for many. But Feld contends that even the normal (average person’s) way of “what’s mine is mine and what’s yours is yours” is getting pushed dangerously toward “the way of Sodom” as society’s obsessive notions of controlling ownership and property—including intellectual (even scholarly academic) property—loses its ethical mooring, risking a verdict from the Heavens.