Neil W. Netanel & David Nimmer, From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print


C. The First Unuathorized Reprinting: Vienna



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C. The First Unuathorized Reprinting: Vienna

As Ẓvi Hirsh Horowitz’s 1807 warning makes clear, despite reprinting bans that Heidenheim had obtained, his maḥzor was reprinted without his permission almost before the ink was dry on his first edition. The “certain publisher” to whom Horowitz, no doubt, referred was the Viennese Christian printer, Anton Schmid. Schmid had established a Hebrew press in Vienna in the last decade of the eighteenth century under a royal license to print Hebrew books. Among his first publications was a 1795 edition of Mendellsohn’s Bi’ur, an undertaking which, above and beyond his reprinting of Heidenheim’s maḥzor, would not likely have endeared him to rabbinic traditionalists. Schmid typically hired proto-maskilim from Galicia as his typsetters, editors, and correctors, for whom Schmid arranged special permits to live in Vienna, a city where Jews were otherwise forbidden to reside.32

When Schmid entered the Hebrew book trade, Austrian law forbade Jews from printing books. A royal ordinance enacted in 1800 prohibited Jews from importing Hebrew books as well. Contrary to some commentators’ descriptions, Schmid did not enjoy an absolute monopoly over the Hebrew book trade in Austria. He faced several rival Christian printers of Hebrew books in Vienna.33 In addition, a number of Jewish-owned printing houses were active in the Lemberg, the administrative center of the formerly Polish territory of Galicia, which the Austrian Empire had annexed as part of the first partition of Poland in 1792 and to which the prohibition on Jewish-owned printing houses did not apply. Nevertheless, Schmid profited handsomely from the regulatory restrictions on competition imposed by imperial authorities, particularly the prohibition on importing Hebrew books.34 His Hebrew printing press reached a wide Jewish market, throughout the Austrian Empire and beyond. Over time, Schmid became a leading publisher of traditional rabbinic and liturgical texts, as well as maskilic works, and received considerable acclaim among his Jewish readers.


[WITH ILLUSTRATION: Schmid’s printer’s mark.35 The text spells out German words with Hebrew characters, as follows: Anton Schmid k.k. [= kaiserlich und königlich] privilegierten hebräischen buchdrucker, meaning “Anton Schmid, imperially and royally licensed Hebrew book printer.”]

Schmid published his reprinted edition of Heidenheim’s Sefer Krovot maḥzor in 1806. Under Austrian law, that reprinting was perfectly legal. Indeed, it was encouraged. As implemented by Maria Theresa and reinforced by Joseph II, it was imperial policy to promote the Austrian book trade by allowing unhindered reprinting of foreign books and, at certain times, even prohibiting the importation of original foreign editions in order to protect the reprinters’ domestic market.36 Emperor Joseph II’s Decree of 13 January 1781, which remained in force until 1837, provided, accordingly, that “the reprinting of approved foreign-published books is to be granted freely to every book printer as a commercial operation, even if exactly the same work happens to have already been (re-) published by one or several native book printers."37 Joseph II’s policies contributed to the resurgence of Austria’s book trade and, in particular, to a flourishing reprint industry, which, much to the consternation of publishers in other countries, served not only the domestic Austrian market, but reached readers across the Austrian border as well. Schmid’s reprinted edition of Sefer Krovot was but a small part of that vibrant industry, authorized and encouraged by imperial decree.

Heidenheim nonetheless responded as aggressively as he could to attempt to stifle Schmid’s reprinted edition. Having procured Ẓvi Hirsh Horowitz’s directive specifically prohibiting the purchase of such a reprint, Heidenheim, presumably with Horowitz’s active assistance, turned to leading rabbinic authorities in the Austrian Empire. He (or, more likely, Horowitz on his behalf) sent them a written appeal, imploring them to enforce the rabbinic reprinting bans against any Jew who would sell, purchase, or otherwise lend assistance to Schmid’s reprint.

Upon learning of Heidenheim’s appeal, Schmid complained to the Austrian authorities, and on November 12, 1807, the Chancellor’s Court ordered that the rabbinic reprinting ban for the Heidenheim maḥzor be suppressed. The Court’s decree, issued to its regional offices in Bohemia, Moravia, Galicia, and elsewhere, declared:

News has been received that after the domestic book publisher Schmid, with authorization from the state censor, reissued the Jewish prayer book and also printed a well-advised German translation in Hebrew letters prepared by a Roedelheim Jew by the name of Heidenheim, on behalf of the aforementioned Jew Heidenheim, who earlier had received an exclusive privilege to print this book from the Chief Rabbi of Frankfurt, an appeal to the Jewish people has been issued, and has been sent to some of the most respected rabbis in the Austrian monarchy by means of the postal service, that several rabbis, and most notably the Chief Rabbi of Frankfurt, Pincas Levy Horowitz, pronounced a great excommunication order against the later publisher of the Maḥzor and his coworkers and assistants.

The regional offices shall draw the rabbis’ attention to this absurd measure so that if they encounter one of these writings, they will suppress and make no use of it, and in case any of their fellow believers have questions, they shall instruct them about the unlawfulness of such a measure, and they shall in no way dare to enforce any part of the excommunication order.38

On May 25, 1808, Chancellor’s Court took its ruling a step further. It commanded its regional offices to “prepare a specific circular to give notice, and in particular to direct the rabbis to clearly and emphatically explain the same in the synagogues of their fellow believers, that every excommunication order is not in force so long as the government does not recognize its legal force, and that whoever disseminates such an excommunication order by his hand, will pay a money penalty of 50 thalers, or based upon the circumstances will face corporal punishment.”39

Foremost among the Austrian rabbis who had received Heidenheim’s appeal – and the subsequent author of seminal responsa concerning Jewish copyright law that we later discuss -- was Mordekhai Banet (1753-1829).40 Banet served for forty years, beginning in 1789, as chief rabbi of Moravia, head of the rabbinic court of Nikolsburg (now Mikulov), and head of Nikolsburg’s large and prestigious yeshiva. Like his mentor, Yeḥezkel Landau of Prague, Banet both excelled in traditional rabbinic scholarship and served as an outspoken presence in matters of public policy. He was a highly respected authority, whose influence extended well beyond Moravia.

While Banet championed the rabbinic tradition, he also exhibited a moderate pragmatism towards the Haskalah, secular study, and the dictates of imperial authorities. As a leading commentator has aptly put it, as “Moravian chief rabbi, [Banet] chose his battles wisely.”41 Banet resolutely opposed reformist rabbis’ attempts to invoke halakhic precedent to justify lenient deviations from traditional legal norms, including eating legumes on Passover, travelling on the Sabbath, and eating sturgeon, a fish traditionally deemed unkosher. He also firmly rejected liturgical reform, most famously, joining with some twenty of his traditionalist rabbinic colleagues in 1819 in voicing staunch opposition to reformists’ introduction of vernacular prayers and organ music in the Hamburg Temple.42 Yet in other instances, Banet exhibited sympathies that some viewed as proto-maskilic. He reportedly spoke German, had considerable knowledge in several secular sciences, and encouraged others to attain certain types of secular knowledge so long as it remained subordinate to Talmudic study. It was even reported that Banet “would read the Bible with the German translation of Moses ben Menahem [Mendelssohn] and the commentaries of the Biurists.”43 Indeed, Banet gave his approbation to a new edition of Mendelssohn’s Bi’ur, published in Vienna in 1817–1818.

Further, when confronting efforts by maskilim and the absolutist state to modernize Jewish education, Banet preferred compromise, engagement, and subtle resistance to open opposition. Banet, for example, accepted that he was powerless to block the Austrian government’s policies requiring that Jews study secular subjects and that Jew’s “ethical” study must be radically reformed to further the imperial goal of educating Jews to be “useful subjects.” Rather than flat out oppose those directives, Banet sought to bring whatever traditionalist influence he could on government approved textbooks. In that regard, Banet gave his approbation to two decidedly modernist textbooks of the Jewish religion. The textbooks were modelled on Christian catechisms and were authored by Herz Homberg, a maskilic scholar and Austrian government functionary, who was widely detested in the Jewish community.44 The first textbook, Imre Shefer (published in 1808) appeared in both Hebrew and German with Hebrew characters. The second, Bne-Zion (published in 1812), upon which Austrian authorities required Jewish couples who wished to marry to pass a test, was entirely in literary German. Banet gave his approbation for Bnei-Zion at the specific request of the Austrian Court Commission on Education. But, as a signal to the Jewish community of the half-hearted nature of his support for the book, he gave his approbation in German. And then, almost immediately, he sought to undermine the book’s adoption by endeavoring to convince local authorities that, whatever its virtues, the book’s content and language were simply too unfamiliar and difficult for most Jews to learn. Ten years later, Banet also promoted a new catechism, authored by his son, which adhered far more closely to rabbinic tradition.45

Banet’s handling of Heidenheim’s appeal to prohibit Jews from buying or selling the Schmid reprint exemplified his staunch support for traditionalism, coupled with pragmatic compromise when necessary. He initially backed Heidenheim -- and rabbinic authority over the Hebrew book trade -- by publicizing the rabbinic reprinting bans.46 But soon thereafter, in line with the Chancellor’s Court decree and the Emperor’s general prohibition on rabbinic enforcement of ḥerem, Banet was arrested by the Austrian authorities in Bruenn, the administrative capital of Moravia, and compelled to rescind his endorsement of the bans. As Banet later explained in one of his responsa on Jewish copyright law:

And I tested this thing when the gentleman-publisher Schmid printed the Roedelheim maḥzorim. When I disseminated the bans of the sages on the buyers and the dealers to deter [their buying and selling of the work], the aforementioned publisher brought us up in court before the authorities in my country, in the city of Bruenn. I was positioned in a grave dispute from morning until evening and they spoke harshly to me and they saw my activities as wrongs and in this way said I was rebelling against the government, until the mercy of God came upon me and I was released in peace on condition that “the mouth that forbids will be the mouth that permits.” And so I did…. 47

Banet, indeed, duly complied with the terms of release by affirmatively rescinding his support for the reprinting bans. In a letter addressed to Moses Löb Ziltz (d. 1831), a rabbinic scholar and judge who served under Banet on the Nikolsburg rabbinic court, Banet affirmed:

The rabbinical sages of Ashkenaz have granted an approbation and ban to all of the maḥzorim printed in Roedelheim and translated into the vernacular. And it is elucidated on the title page by the wise man, W. Heidenheim, that no other person may use the same format for twenty-five years; and I have said, lest there, therefore, be among the children of our nation who reside under the merciful wings of His Majesty, the Emperor, a man or woman whose heart will accordingly not wish to buy the maḥzorim that are being printed in the city of Vienna by Mr. Anton Schmid, that I hereby invalidate and declare that all of the words regarding bans and curses which have been issued, and which will be issued in the future by rabbis in other countries upon the next printing, are to be deemed nonexistent….48

As we shortly elucidate, Banet presented several halakhic justifications for his newly discovered position that the rabbinic reprinting bans issued for Heidenheim’s maḥzor in other countries are “to be deemed nonexistent.” It is obvious, however, that Banet’s position was heavily colored by his painful realization of the profound limits of rabbinic authority under Habsburg rule. Indeed, Banet’s halakhic justifications for holding rabbinic reprinting bans unenforceable expressly reflect his pragmatic understanding of the limits of rabbinic authority in a world of vanishing juridical autonomy for rabbinic courts and of secular governments’ restrictions on the Hebrew book trade.

Yet, despite Austrian authorities’ abrogation of the rabbinic reprinting bans and Banet’s coerced about-face, the initial publication of the bans in Austria seems to have had its desired effect: many Jews refrained from purchasing Schmid’s reprinted edition. As a result, before issuing his next reprint edition of Heidenheim’s maḥzor, Schmid took the trouble and money to acquire the rights of Heidenheim’s (now former) partner, Barukh Baschwitz, in Sefer Krovot.49 Evidently, Mordekhai Banet lent his assistance to Schmid in that endeavor. Schmid’s next edition, printed in 1816, features a letter from Banet, dated January 11, 1816, and no doubt intended for publication.50 The letter confirms that Schmid had purchased from Bashwitz the right to reprint Sefer Krovot. Banet, in other words, publicly provided his imprimatur for Schmid’s second edition based on the purchase by a seemingly recalcitrant Schmid of reprinting rights from a joint holder of those rights under the rabbinic reprinting bans that had originally been issued for Sefer Krovot. By ensuring that Jewish purchasers of the Schmid edition would see that, as confirmed by the Chief Rabbi of Moravia, Schmid had ostensibly acquiesced in the ban of the Ashkenazic sages by purchasing the reprinting rights from their rightful holder, Banet adeptly projected a measure of rabbinic authority over the Hebrew book trade. He did so even as he had, shortly before, relinquished the central pillar of that authority, the rabbinic power to issue reprinting bans that are enforceable by ḥerem anywhere in the Jewish world.

For his part, Heidenheim remained aggrieved by Schmid’s reprinting. In his next edition of Sefer Krovot, published between 1815 and 1817, Heidenheim inserted an impassioned statement just below his reproduction of the original haskamot from 1800 to 1805 and Ẓvi Hirsh Horowitz’s warning to comply with them. Heidenheim begins: “Who would believe that in the face of all of those rabbinic bans and warnings, someone would nevertheless have it in his heart to commit the villainous acts [forbidden by the bans] for nefarious profit?” He then recites that a certain printer recently announced that he already has commenced a second reprinting of Heidenheim’s maḥzor in Vienna, this without Heidenheim’s consent, and that said printer gave the excuse that he had been given a written authorization for the reprinting from Heidenheim’s former partner, Barukh Baschwitz. Heidenheim then insists that Baschwitz had no authority to sell Heidenheim’s rights to others or to allow acts that were prohibited by the rabbinic bans. The rabbinic bans, Heidenheim asserts, were given to him for his benefit, as evident from the words of the sages who issued them and from the warning in support of the rabbinic bans that Ẓvi Hirsh Horowitz issued in September 1807, at which time Baschwitz was no longer Heidenheim’s partner. Conspicuously absent from Heidenheim’s statement is any indication that it was Mordekhai Banet, Chief Rabbi of Moravia, who provided Schmid with Baschwitz’s authorization and who confirmed its authenticity.

D. The Second Unauthorized Reprinting: Dyhernfurth

In 1822 Sefer Krovot was again reprinted without Heidenheim’s consent. This time the reprinter was Hirsch Warschauer, a Jewish publisher based in Dyhernfurth, a small town near Breslau, located in Prussian Silesia.51 Dyhernfurth was then a hub of Hebrew printing. Its first Hebrew press – and, indeed, its first Jewish presence – was established around 1688, when the local magnate invited Shabbetai Bass, the scholar who had edited Joseph Athias’s Yiddish Bible, to open a printing house in order to develop that recently founded town. In the ensuing 140 years, Jewish presses centered in Dyhernfurth published hundreds of Hebrew and Yiddish works.52

Warschauer printed the first volume of Heidenheim’s nine-volume Sefer Krovot in 1822. His reprint appeared with the approbation, dated 7 Sivan 5581 (June 6, 1821), of Israel Yona Landau, head of the rabbinic court of Kempno, located in territory that had been annexed by Prussia in the 1793 Second Partition of Poland.53

No sooner had the Warschauer printed the first volume, than Heidenheim threatened to haul him before a rabbinic court for violation of Heidenheim’s rabbinic reprinting bans.54 In so doing, Heidenheim once again sought protection under Jewish law against a reprinting of his maḥzor that was entirely permissible under secular law. Unlike Austria, Prussia did not actively encourage reprintings, and, indeed, periodically pressured other states to honor Prussian printing privileges in their territories.55 But in line with common practice in the early nineteenth century, Prussia did not accord protection against reprints for foreign authors and publishers absent a treaty with the foreigner’s sovereign ruler that required such protection– and Prussia did not begin to sign such treaties with other states of the German Confederation, including the Grand Duchy of Hessen, where Roedleheim was located, until 1827.56

Whatever were his rights under secular law, Warschauer attempted to settle the dispute. He offered to give Heidenheim thirty reprinted “copies,” presumably of the entire nine-volume maḥzor, in return for Heidenheim’s consent to Warschauer’s reprinting. He also pointedly reminded Heidenheim that, in any case, the twenty-five year period of Heidenheim’s rabbinic reprinting bans was nearing its end.

Heidenheim evidently rejected Warschauer’s settlement offer. Warschauer then turned to Akiva Eiger (1761–1837), rabbi of Posen (also in Polish territory annexed by Prussia) and one of the most highly respected posekim of his generation. Warschauer relayed to Eiger that he had embarked on his reprinting of Sefer Krovot in good faith, pursuant to the rabbinic imprimatur of Israel Landau of Kempno. He also pleaded that he had invested heavily in the project and would go bankrupt if unable to complete it, or at least to sell the volume he had printed and a second volume for which he had already set the type. He added that there was nothing he could do to stop the distribution of the copies he had printed in any event. He had borrowed from his non-Jewish partner to finance the reprinting and that if he were unable to repay the debt, the non-Jew would seize the printed copies and put them on the market.

In an effort to lend his weight to resolving the dispute, Eiger sent a written appeal, dated 1 Av 5582 (July 19, 1822), to Zalman Tarir, head of the rabbinic court of Frankfurt am Main, accompanied by a letter addressed directly to Wolf Heidenheim.57 In addition to recounting Warschauer’s good faith and dire financial straits, Eiger expressed his concern that if Heidenheim should enforce the reprinting bans against Warschauer, Warschauer’s non-Jewish partner might bring an action before a Prussian court challenging the rabbinic bans – and “who knows what might sprout from that.” In his letter to Heidenheim, Eiger warned further that an action by Warschauer’s non-Jewish partner might lead Prussian authorities to enforce prohibitions on importing books into Prussia, and to impose fines on violators, just as the Emperor of Austria had directed as a result of a “similar case” in that country– a thinly veiled reference to Austrian authorities’ sharp response to Heidenheim’s efforts to enforce his rabbinic bans in Austria. Eiger added that, under those circumstances – in which it would be impossible to import copies of Heidenheim’s maḥzor to Prussia, the Dyhernfurth publishers would find rabbis in Prussia who would give their approbations to the reprinting of Sefer Krovot even without Heidenheim’s permission and he, Eiger, might well give his approbation as well. Eiger concluded his written appeal by personally guaranteeing the delivery of forty copies of Warschauer’s reprinted edition to Heidenheim in return for Heidenheim’s written consent to Warschauer’s reprinting.

III. An Extended Colloquy: Mordekhai Banet and Moses Sofer

In parallel to Eiger’s effort to bring about a compromise settlement of Heidenheim’s claim against Warschauer, the head of the rabbinic court in Dyhernfurth asked Mordekhai Banet for a ruling on the question of whether Heidenheim’s reprinting bans were enforceable against Warschauer. Perhaps Heidenheim had brought a complaint against Warschauer in that rabbinic court and the rabbi of Dyhernfurth then sought the opinion of a greater authority on what is the halakha in such a matter. Or perhaps the inquiry was sparked by Warschauer, seeking the imprimatur of the rabbinic court of Dyhernfurth, as he had received from the head of the rabbinic court of Kempno. Neither Banet’s responsum nor the historical record gives us an indication.

Banet’s responsum addresses the Dyhernfurth rabbi as the “light of the Exile” and by other honorifics, but does not identify him by name. He was apparently Yaakov Yehuda Leib Falk (c. 1767-1838), who served as head of Dyhernfurth’s rabbinic court and as a rabbinic judge in neighboring Breslau. Several years later, Falk granted an approbation for yet another reprinting of Heidenheim’s Sefer Krovot, published by Leib Sulzbach in Breslau between 1829 and 1830.58

It would have been out of the ordinary for Falk, a rabbi of Dyhernfurth, to seek a ruling on such a matter from a rabbinic authority outside of his country. In his responsum, indeed, Banet initially expresses some reluctance to respond, noting that he is unaccustomed to issuing a ruling to an inquirer from a different land, especially given the presence of preeminent rabbinic authorities in that land. Evidently, Falk chose to ask Banet for a ruling on the assumption that if anyone could authoritatively speak to the concerns that Akiva Eiger raised about the grave dangers of attempting to enforce Heidenheim’s reprinting bans in Prussia, it would Mordekhai Banet. And on that score, Falk could reasonably assume that Banet would incline favorably towards the Dyhernfurth printer. Banet had, after all, withdrawn his support for enforcing Heidenheim’s reprinting bans in Austria following the Austrian authorities’ sharp response to Heidenheim’s enforcement efforts in that country.

If that was, indeed, the Dyhernfurth rabbi’s reason for posing his halakhic question to Mordekhai Banet, he was not to be disappointed. In his ruling, dated Thursday, 5 Elul 5582 (August 22, 1822), Banet took a decidedly narrow view of the protection to which Heidenheim was entitled under Jewish law.59 In so doing, Banet exhibited a keen sense of the limits of rabbinic authority in a Jewish world divided among imperial powers that were bent on supplanting much of that authority – and that had decreed that reprinting of foreign works was permissible under secular law.

But although Banet provided the assurance that Falk sought for Falk to back the Dyhernfurth printer, Banet’s word was not the last on the subject in the annals of Jewish copyright law. Some six months after Banet’s ruling, Moses Sofer (1762-1839), rabbi of Pressburg, at that time the most important Jewish community in Hungary, wrote a responsum addressed to Banet and directly taking issue with him. Sofer was Banet’s junior; indeed, Banet has recommended Sofer for his first rabbinic post in Dresnitz in 1794. But Sofer had already attained an exalted position in traditional rabbinic culture, a position cemented by his prominent role in opposing the reformist Hamburg Temple some four years earlier.60 In his responsum, dated 24 Adar 5582 (March 7, 1823), Sofer forcefully argued that Jewish law and longstanding rabbinic practice require that rabbinic reprinting bans be fully enforced throughout the Jewish world, including in a country other than the country where the ban was issued.61

As appears from its context and content, Sofer’s initial responsum was evidently part of a private correspondence that he carried on with his senior colleague. It seems that Sofer initiated this exchange of letters by asking Banet to join him in granting haskamot for a forthcoming book, which Sofer identified as “Oryan T’litai.”62 That request would have been quite routine; the two rabbis joined in granting approbations for several books, both before and after this exchange. Banet responded that that he would grant an approbation, but not a reprinting ban. That response would also not have been out of the ordinary; Banet had not granted a reprinting ban since he retracted his initial support for the bans for the Roedelheim maḥzor in 1807. But on this occasion, in a letter that Sofer quotes at the beginning of his responsum, Banet outlined his argument for why bans are unenforceable and should no longer be issued, and referred to the recent ruling he had given to the rabbi of Dyhernfurth.

Sofer responded by seeking to convince Banet that rabbinic reprinting bans were, indeed, a legitimate, enforceable exercise of rabbinic authority. In contrast to the ruling that Banet issued to the head of Dyhernfurth’s rabbinic court, we have no reason to think that Sofer’s letter to Banet would have been widely circulated at the time. Further, Sofer’s responsa, a number of which consist of private correspondence, were not published until after his death.63

In any event, it is not entirely clear what brought Sofer to respond to Banet. Apparently, Frankfurt rabbi Ẓvi Hirsh Horowitz had asked Sofer to intercede on Heidenheim’s behalf several years before, probably to endorse the ban against Jews lending buying or selling Schmid’s reprintings. In a later responsum, in which Sofer further explicates his arguments for enforcing reprinting bans, he notes that Horowitz, who died in 1817, had informed him that Heidenheim had spent a large amount of time proofreading hymns and translating them into German, had gathered existing texts for that purpose, and had expended a great deal of money, as to which he still remained accountable for unpaid debts.64 Yet, in his 1823 responsum, Sofer also refers to a letter he received several months previously from Akiva Eiger, who was Sofer’s father-in-law, complaining that a certain rabbi had claimed in writing that he, Eiger, had definitively stated that rabbinic reprinting bans are ineffective and thus are not to be enforced. Perhaps it was that letter that sparked Sofer’s response to Banet. Indeed, Sofer states in his responsum that he now suspects that the certain rabbi who had offended Eiger by overstating his position was the rabbi of Dyhernfurth.

If Sofer truly hoped to convince Banet to change his view of rabbinic reprinting bans, he was unsuccessful. Banet defended his position against Sofer in a responsum dated, 7 Nisan 5587 (April 11, 1827).65 Sofer then presented his counterarguments to Banet’s defense in a lengthy exposition that touches briefly on the Jewish law of wrongful competition before moving on to other grounds for supporting reprinting bans.66 In contrast to Sofer’s 1823 responsum, this later, undated, responsum does seem to be intended for public circulation, perhaps for use in teaching at Sofer’s yeshiva. It is not addressed to Banet, or to any other identified inquirer, and it is longer that Sofer’s typical responsa. In any case, the extended colloquy between Banet and Sofer presents in gripping detail the opposing arguments of two preeminent rabbinic scholars of the early nineteenth century on the nature of Jewish copyright law and the enforceability of rabbinic reprinting bans.

Equally, Banet’s and Sofer’s respective responsa both illuminate and are informed by each of those rabbinic leaders’ contrasting approaches for how best to address the crisis of rabbinic authority that engulfed them. To be certain, these two luminaries of the early nineteenth-century Central European rabbinic elite generally shared a devotion to rabbinic tradition, even while embracing the study of certain secular subjects.67 Further, each Banet and Sofer exhibited considerable adeptness – in extraordinarily difficult circumstances -- in dealing with imperial, ecclesiastical, and other political powers. They each responded with painful awareness of the need to cabin rabbinic authority within the sharp limits that absolutist governments had imposed, while seeking to enlist the support of political powers in preserving the hegemony of traditionalist rabbinic authority within the Jewish community in the face of reformist challenges.68

Yet even within this broad framework of common purpose, Sofer and Banet exhibited certain salient differences. First, Sofer exceeded Banet in the resoluteness and intransigence of his defense of rabbinic power and tradition – although it is important to stress that this was a difference in degree, not in kind. It was Sofer who made rigid adherence to immutable tradition an express, overriding principle. That principle is best encapsulated in Sofer’s often cited application of the Talmudic dictum "ḥadash asur min ha-Torah" to mean that any deviation from the traditional understanding of halakha, even if seemingly trivial, is strictly forbidden if for other reason than that it is an innovation.69 Sofer also ruled that rabbinic rulings and rabbinic-sanctioned local custom are no less an inherent part of that immutable tradition than are explicit biblical commandments.70 The various elements of the rabbinic tradition thus constitute a single, organic whole, a sanctified body of rules and practices that must be observed in its entirety. For Sofer, as we shall see, rabbis’ longstanding custom of issuing reprinting bans is an integral part of that tradition.

For his part, Banet also insisted that the longstanding custom is as sacred and inviolable as biblical law, and thus may not be abrogated under any circumstances.71 On the other hand, in his copyright responsa Banet seems to draw a distinction between halakhic rules and custom, on one hand, and rabbinic decrees, on the other. He also argues that the rabbinic practice of issuing reprinting bans does not rise to the level of binding custom.

Further, Sofer not only erected a wall against innovation at the hands of Jewish reformers and purported interpreters of halakha; he also adamantly opposed ceding authority to secular rulers over traditional rabbinic domains.72 For example, Sofer authored responsa insisting that halakhic rules regarding marriage and inheritance must take precedence over secular governments’ regulation of those areas. He similarly declined to recognize the halakhic validity of wills drawn up in non-Jewish courts. As he cogently expressed it: “Heaven forbid that in such a case we will apply the rule that “the law of the kingdom is the law” against the law of the holy Torah, for if [we were to do so], we would annul all the laws of the Torah.”73

Hand in hand with his insistence on the principle of immutable rabbinic authority, Sofer came to hold a highly optimistic belief in his ability to convince secular rulers to support rabbinic traditionalists, especially vis-à-vis Jewish reformers who would undermine the power of the traditional rabbinic elite. As Sofer colorfully expressed:

Secular rulers help and aid us and defend us in the maintenance of our religion, and they have absolutely no desire to abrogate even a single one of our commandments from the Torah. If in some countries the rulers have listened to the voice of these charmers, they have intended only to do good for us, for they do not know and have not been told that this contradicts the foundation of our faith. However, if they hear and understand that this thing is opposed to our Torah and that these persons possess no religion whatsoever, they pay no heed them at all. And God is with us.74

As with the differences between Sofer and Banet regarding the defense of rabbinic power and tradition, we see Sofer’s basic optimism about gaining the support of secular rulers, in contrast to Banet’s considerable skepticism, at play in their respective responsa on the continued viability of rabbinic reprinting bans. Both Banet and Sofer carefully couched their arguments regarding Jewish copyright law in halakhic precedent, as well as in their empirical assumptions about when and how the widespread practice of granting rabbinic reprinting bans came into being. But as we now see, their contrasting views of what degree of rabbinic authority it was possible to preserve and their contrasting approaches regarding how best to preserve that rabbinic authority heavily color their colloquy about Jewish copyright law.




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