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

Sofer begins by quoting in its entirety Banet’s reply to Sofer’s request that Banet join him in issuing an approbation and reprinting ban for the forthcoming book, Oryan T’litai. Banet’s reply rehearses some the principal arguments regarding the invalidity of reprinting bans that he set out in his Responsum of August 22, 1822. And Banet notes explicitly that he has recently written “in the same vein to the rabbi of the holy community of Dyhernfurth.” Banet expresses skepticism about the need for approbations as well. He suggests that buyers of books know full well when a book is one of high quality and thus that rabbinic imprimatur is superfluous. The only reason for issuing haskamot, Banet states, is to decree a reprinting ban, but, for the reasons he enumerates, reprinting bans should not be issued. Banet concludes his letter by stating that, “out of respect” (whether for the book’s author or Sofer is unclear), he is nevertheless willing to issue an approbation for the book, but not a reprinting ban.

Sofer then responds to Banet with a number of arguments.

1. The practice of issuing approbations is necessary to ensure the integrity of texts of Jewish liturgy and learning.

Sofer expresses surprise that Banet seems to be prepared to eliminate the traditional practice of providing approbations and bans. Sofer insists, rather, that haskamot are vitally important even in connection with the republication of old and ancient books. Sadly, Sofer continues, the practice of securing haskamot has come to be disregarded, and as a result two negative consequences have ensued: First, the Jewish people have become inundated with inaccurate and heretical texts.⁹² Second, publishers of new books name them with a title of an already published book, thus misleading readers who mistakenly think that they are buying the original book. ⁹³ Thankfully, Sofer adds, there are still God-fearing people who will only buy a new book if they see that it contains a haskama from an esteemed rabbi.

2. Reprinting bans are grounded in the Jewish law of wrongful competition

Sofer then proceeds to defend rabbinic reprinting bans. He argues, first, that reprinting bans are a venerable rabbinic vehicle for protecting publishers against hasagat gvul, the type of wrongful competition that is prohibited in the Pentateuch. The key biblical text here is: “Thou shalt not remove thy neighbor’s landmarks” (Deut. 19:14). The simple meaning refers to moving the marker between two adjacent fields, essentially as a way of permanent trespass or “stealing” that land. But, inasmuch as theft is already prohibited as part of the Ten Commandments, that particular verse could be considered otiose. Therefore, later rabbinic law applied it generally to every attempt to encroach unfairly on a neighbor’s property, or even his means of earning a livelihood.⁹⁴

Along those lines, Sofer contends, from the day that printing was established, rabbinical authorities issued a gezeirat irin or “heavenly decree” – a decree that is immutable and universal in scope -- against all who would “trespass” on a publisher’s livelihood by reprinting the publisher’s recently issued book of Jewish liturgy or learning.⁹⁵ The rabbis did so in order to ensure that those who engage in mitzvot will not be harmed. The prohibition against trespass set out in rabbinic reprinting bans, Sofer continues, is more critical and fundamental than the exclusive entitlements accorded under arenda, ma’arufiya, and the principle of the Poor Man Who Shakes an Olive Tree. For with regard to those exclusive entitlements, if a merchant is unable to make a profit in one place due to competition in that location he still might be able to make a profit by setting up his business elsewhere. For that reason, rabbis did not protect those exclusive entitlements by ordering a ḥerem against violators. In the case of publishers, however, it is impossible to publish a book without making a large initial investment of money and labor. As a result, reprinting without that publisher’s permission will always cause the publisher a considerable loss. It was for this reason and on this doctrinal basis, Sofer maintains, that the Rema forbade the reprinting of the Mishneh Torah by the second printer, Giustiniani, and that other rabbinic authorities have issued similar edicts forbidding reprinting and backed by the sanction of ḥerem.

3. Policy favors reprinting bans

Sofer maintains further that even if rabbinic reprinting bans were not grounded in the halakhic prohibition against wrongful competition, it would be fitting to issue a rabbinic edicts banning reprinting. If we do not provide for such edicts, no one will enter the printing trade, and publishers of books of Jewish liturgy and learning will vanish. And if there are Gentile publishers who do not abide by such edicts, rabbinic authorities can prohibit Jews from buying books reprinted in violation of a ban – and such prohibitions on buyers will be productive.

4. Reprinting bans are enforceable outside the territory where the ban was issued.

Sofer grants Banet’s point that a rabbi may not generally issue a decree that is binding in another country. However, Sofer insists, there is an exception for reprinting bans. The rabbinic edicts establishing the universal enforceability of reprinting bans are of ancient origin. The reprinting bans were originally issued our sages to be applied to all of Israel, wherever they may be.

5. Reprinting bans are valid and enforceable even in an age in which imperial and other secular authorities grant licenses for printing and forbid rabbinic bans.

Sofer vociferously challenges Banet’s contention that reprinting bans should not be issued in an age in which imperial and secular authorities regulate business and forbid rabbinic bans. As Sofer dramatically puts it: “Is it really the case that I – a rabbinic authority -- am just a mouthpiece for the King and a protector of the government that forbids us to place a ban (ḥerem) on anything? No, I am one who reminds others of their obligations under Jewish law to abide by the halakhic prohibition against wrongful competition.”

Sofer also questions whether imperial authorities will perceive rabbinic reprinting bans as an affront to their prerogatives. The King, Sofer argues, earns tax revenue from publishers regardless of what books they publish. Thus, it should not matter to the King, if publishers reprint a book or, in order to comply with a reprinting ban, must print a different book. The King will earn his revenue either way.

Sofer’s resolute support for rabbinic reprinting bans is striking given that he elsewhere advocated acquiescence in government-imposed restrictions on the rabbinic power of excommunication and public condemnation. In response to the reforms at the Hamburg Temple, Hamburg’s traditionalist rabbinic court initially asked colleagues throughout Europe to join it in a public condemnation of the transgressors. While agreeing that the reformers deserved public condemnation, Sofer expressed reservations about that course of action:

And despite this I uphold the word of the king … for thus did the king, may he be exalted, command upon all the principals of his household and kingdom, to close the mouth of the lions, not to let them whisper or curse, and not to strike with the rod which does not draw blood. We are commanded by the Supreme power not to transgress the law of the land, and he has decreed, and who can undo it?

Sofer’s embrace of continuing rabbinic authority to issue reprinting bans versus his reticence to issue a ban and public condemnation against the Hamburg reformers is puzzling. Perhaps Sofer viewed reprinting bans regarding books of Jewish liturgy and learning as more central to rabbinic prerogatives. Or perhaps he believed that government authorities would be more sanguine about local enforcement of rabbinic reprinting bans than they would about a public condemnation and ban on the reformers jointly issued by leading rabbis from several countries.

C. Banet’s Response to Sofer, April 11, 1827⁹⁶

In his response to Sofer, Banet directly takes on Sofer’s principal arguments.

1. Sofer is incorrect about the origins of the reprinting ban.

Banet begins by taking on Sofer’s assumptions about the temporal and doctrinal origins of the reprinting ban. According to Banet, Sofer erred in stating that rabbinic authorities throughout the Jewish world joined in issuing reprinting bans to protect against wrongful competition at the birth of print. In fact, Banet counters, in most books published more than 100 years ago there is no mention of a reprinting ban. Rather, such bans have become prevalent only in recent times, having been sought by those who would “use the Torah as a spade.” That reference to using the Torah as a spade is harsh. It follows a traditional rabbinic trope of condemnation—inasmuch as Torah occupies its own supernal realm, it is highly inappropriate to use it “as a spade,” i.e., as a mere instrumentality to for personal profit.⁹⁷

2. Reprinting bans do not serve the purpose of protecting from harm those who engage in mitzvot (i.e., publishing books of Jewish liturgy and learning).

Banet counters Sofer’s argument that, in protecting publishers of books of Jewish liturgy and learning from the harm of wrongful competition, reprinting bans serve the goal of protecting those who engage in mitzvot from harm. That proposition is difficult to accept, Banet concludes, “for aren’t the publishers that come afterwards equally engaging in a mitzvah by producing books that can be purchased at low cost?”⁹⁸ Moreover, most printers are not intending at all to engage in a mitzvah, but instead are just out to make a profit. Someone who labors in his study to create a new book might qualify as one who engages in mitzvot, while those who reprint such a book might not, since they are able to publish the book of Jewish learning only because of mitzvah already performed by the first author-publisher. However, if the first publisher is merely printing an old book, he no more qualifies as one who engages in mitzvot than the second publisher.⁹⁹

3. The doctrinal basis for reprinting bans is consensus among those in the publishing trade, not wrongful competition.

Reiterating a point he made in his first responsum, Banet maintains that there has never been such a thing as a rabbinic ban against publishing a book per se. Rather, the rabbis of previous generations who instituted reprinting bans did so upon the request of book publishers for the publishers’ mutual benefit. The doctrinal basis for reprinting bans is thus something akin to trade guild regulations, not wrongful competition. Here Banet cites Shulḥan Arukh, Ḥoshen Mishpat 231:28, which sets forth the rights of members of a given trade to establish among themselves uniform norms – in essence guild regulations -- and to punish those who do not conform to those norms. Effectively, publishers agreed amongst themselves: “Today it will be profitable for this publisher to have an exclusive right for a period of years to publish a particular book and subsequently it will be profitable for another publisher to print his book with the protection of a reprinting ban.” However, when rival publishers object to the issuance of reprinting bans, such bans are no longer an expression of uniform trade agreement and are thus of no force and effect.

Moreover, in our day, Banet continues, the guild regulation rationale for reprinting bans no longer applies. Today most publishers are non-Jews and thus not obligated to abide by our reprinting bans. Indeed, a growing number of Jews also flout the sanction of ḥerem. Under those conditions, enforcing reprinting bans would no longer be to the mutual benefit of all publishers. Rather, upholding the ban against a would-be reprinter would only harm that publisher, while not ensuring the profit of the first publisher since Gentiles and non-observant Jews would still be free to reprint the book.

4. Rabbinic efforts to enforce reprinting bans will lead to confrontation with government authorities.

Banet takes particular issue with Sofer’s contention that the government does not care which publishers have the right to print which books, so long as all publishers pay the applicable taxes to the government each year. Banet counters that he has personally tested the validity of that proposition. It is here that he recounts his bitter experience in being hauled before the authorities in Bruenn and threatened with prosecution for rebelling against the government for publicizing the reprinting ban on the Roedelheim maḥzor.

D. Sofer’s Final Rebuttal (Undated)¹⁰⁰

Sofer’s final rebuttal to Banet canvasses a number of arguments, ranging from wrongful competition to policy dictates.

1. Reprinting bans protect publishers against wrongful competition.

Sofer begins his final rebuttal to Banet’s arguments by stating, “I have now reviewed the laws of yored l’omanut ḥavero,” meaning the various doctrines and cases that, together, make up the Jewish law of wrongful competition. Aside from providing citations and a mnemonic for anyone who wishes to study the cases outlined in Banet’s first responsum and enumerated above, Sofer quickly moves on to other possible grounds for supporting rabbinic reprinting bans.

But Sofer later returns to the wrongful competition cases and contends that publishers are especially worthy of protection under the Jewish law of wrongful competition. Sofer first refers to the Case of the Fish Who Lock their Sight on the Bait. Recall that Rashi and other authorities held that reason why competition may be limited in this case is that the first fisherman is certain to catch the fish when the second fisherman interlopes and takes it from the first. In contrast to Banet, who held that publishers cannot say with certainty that the public will buy their books, Sofer contends that, given the longstanding custom of granting reprinting bans, publishers have, indeed, come to be certain that no other publisher will come and encroach upon their livelihood by reprinting their books. Moreover, continues Sofer, the damage that would be caused to a publisher from such an encroachment would be far more severe that that caused to the fisherman or the first to set up a mill on an open alley. Publishers typically invest large sums of their own savings in printing a book. They would thus suffer severe personal harm, not just a diminution in profit, from the encroachment. Finally, Sofer avers, the second publisher can always print a different book rather than reprinting the first publisher’s book, just as the other fisherman can move their nets away from that of the first fisherman. In such circumstances, a reprinting ban, backed by a threat of ḥerem, is definitely warranted.

2. The jealousy of scholars and teachers.

Sofer notes further that even Rav Huna—whose minority view, it will be recalled, would accord the first merchant to set up shop in a neighborhood to prevent another from setting up a competing business in that location—permits unrestricted competition in the area of Jewish education. The reason is the Talmudic injunction, set out in the same passage in which Rav Huna debates the majority who favor free competition, that the jealousy of scholars and teachers (literally “scribes”) fosters greater wisdom: kin’at sofrim tarbeh ḥokhmah (BT Bava Batra 21a). In invoking this injunction, Sofer quotes a version of the Talmudic passage that puts the injunction in context: “Perhaps we should fear [that the second teacher will put the first teacher out of business and then, without any competition] he will be indolent? And [the Talmud] then replied: ‘the jealousy of teachers increases wisdom.’” The Talmud reasons that teachers of Jewish learning are inherently driven to strive to exceed the knowledge and intellectual prowess of other scholars even when they do not face competition in the local market for teachers.

Thus far, Sofer seems to be left with the majority rule that favors free competition and the admission, even among the minority, that there is no reason to hinder free market competition among Jewish scholars and teachers because even if all but one are driven out of business, the remaining scholar or teacher will still be driven to excel in learning and teaching Torah. Indeed, Sofer goes even farther. He surmises that the rule favoring free competition should apply not just to teachers and scholars, but to all who engage in mitzvot (i.e., publishers of books of Jewish liturgy and learning). Indeed, the rationale beyond the rule should apply to all merchants and peddlers, for even merchants and peddlers who are not Jewish scholars and teachers are unlikely to abandon their business (i.e., become indolent) merely because they have successful driven their competitors out of business.

But Sofer then turns these propositions favoring free competition on their head. He draws from them the negative inference that Jewish law does restrict competition, giving the incumbent merchant an exclusive right to engage in his trade, in those cases in which there is reason to fear that a latecomer would drive the incumbent out of business and then become indolent, and thus the rationale behind the “jealousy of teachers” rule does not apply. The relevance of this negative inference to book publishers is quite attenuated, since Sofer nowhere argues that a publisher who drove his competitors out of business would then stop printing books. However, Sofer later states that, unless book publishers are protected by reprinting bans, they would become indolent for another reason: no publisher would invest in publishing books if any other publisher could come along and rob the first of his profit by reprinting the book before the first has sold out his print run.

3. Rabbis of early ages instituted a practice of issuing reprinting bans to forbid hasagat gvul and ensure that those who engage in mitzvot till not be harmed.

Sofer counters Banet’s claim that reprinting bans are of recent vintage. He states: “And I have scrutinized books and found proof of the custom of issuing haskamot for nearly 200 years, and it seems that this custom initially commenced after the Maharam of Padua printed the Ramban’s books, and a certain Gentile trespassed upon his boundary, and the Rema issued his decree, as explicated in his response. From this time onwards, the rabbis began to erect fences in front of intruders and routinely inscribed in a haskama that those who engage in mitzvot will not be harmed.” Moroever, Sofer continues, citing a number of related precedents, publishers qualify as persons who engage in mitzvot [shluchei mitzvot] even if they print and sell books of Jewish learning entirely to earn a living, and not for the sake of engaging in a mitzvah in and of itself.

4. Reprinting bans are not limited by territory, but, in order to protect publishers against wrongful competition, must have worldwide scope.

Sofer argues that the conditions of the Hebrew book trade require that publishers be protected against wrongful competition throughout the world, not just in their country. In essence, Sofer argues, even though the general rule is that an incumbent merchant may only prevent competitors who would deprive him of his livelihood from entering the merchant’s own town, not engaging in business elsewhere, an exception must be made for book publishers. Sofer states: “It is well known that it is impossible for a publisher earn a livelihood if he does not print hundreds and thousands of books. But we, the nation of God, are a small minority in this country and thus it is impossible that publishers of Jewish books would be able to sell a sufficient amount of books if limited to a local market. Moreover, the books of the Talmud and the writings of rabbinic decisors and commentators are needed only by diligent Jewish scholars and they, because of our many transgressions, are a small minority of the Jewish people…. Accordingly, where book publishers are concerned, the whole world is considered as one town…. And if another person shall reprint the first publisher’s book within a short period – even at a distance of one hundred parsaot [approximately 4,500 kilometers] – the first publisher will not sell his books and he will lose that which belongs to him. Hence, unless protected by a reprinting ban, no person would be fool enough to draw near the printing of books.”

Therefore, Sofer concludes, “it would have been appropriate to erect a fence to protect publishers against wrongful competition even if doing so were not in accordance with halakhic doctrine and even if rabbis of earlier generations did not adopt such a decree en masse and as a unified group. In any event, issuing reprinting bans is the custom which everyone has adopted during the past several hundred years.” Sofer then provides a litany of examples in which rabbis have issued reprinting bans for books of Jewish learning.

Sofer continues that he is puzzled as to why the Rema limited his ban on purchasing editions of the Mishneh Torah that competed with those of the Maharam of Padua to buyers in Poland. As an explanation for this territorial limitation, Sofer hypothesizes that since the Rema’s principle grounds for ruling in favor of the Maharam were applicable to wrongful conduct by a rival publisher, not obligations of buyers, the Rema “did not gather the courage to give his ruling application to scholarly buyers outside his territory.”

5. Reprinting bans may be directed to prohibit Jews from buying reprints of books of Jewish liturgy or learning from non-Jewish publishers.

Sofer also invokes two secondary grounds for the Rema’s ruling in favor of the Maharam of Padua: rabbinic authorities have ruled that Jews can be required (1) to buy from Jewish merchants rather than Gentile merchants, even if the Gentiles sell at a lower price and (2) to give preference to Jewish merchants who are rabbinic scholars. While those injunctions are subject to various qualifications, Sofer maintains that both always apply when the merchants are selling books of Jewish liturgy or learning. In line with that precedent, Sofer holds, rabbinic reprinting bans may forbid Jews from buying a book that has been reprinted by a Gentile publisher in competition with a Jewish publisher. And what of Banet’s harrowing experience in being hauled before the Austrian authorities for disseminating a reprinting ban against purchasing Anton Schmid’s reprint of the Roedelheim maḥzor? Sofer makes no reference to Banet’s testimonial. Rather, as he did in his initial response to Banet, Sofer expresses a steadfast refusal to countenance secular authorities and their laws forbidding rabbis from issuing bans: “We have thus learned that with regards to book publishers, even if he is a book publisher from the Nations [i.e., a Gentile] who is not required to carry out the rulings of the Sages of Israel; and moreover, even if the government has prohibited the import of books from outside of the country to within the country, and it is thus impossible to bring those books to the country,” Jews may still be prohibited from purchasing the Gentile publisher’s reprinted edition.

6. Applied to Wolf Heidenheim

Finally, Sofer relates that he had received a letter from Ẓvi Hirsh Horowitz, praising Heidenheim and asking that the twenty-five year reprinting ban issued on Heidenheim’s behalf be enforced. Quite possibly, that letter was the same written appeal that Horowitz had sent to Mordekhai Banet and other rabbinic authorities in 1807. But it would likely have had special significance for Sofer, who had been a devoted pupil of Ẓvi Horowitz’s father, Pinḥas Horowitz, issuer of one of the reprinting bans in favor of Heidenheim.¹⁰¹ As Sofer recounts from the letter:

[Heidenheim] spent a large amount of time proofreading religious hymns and translating them into the language of Ashkenaz [German]. And if it wasn’t for him, the hymns would have already been absorbed [in the earth and forgotten] and, as is well understood, would not have been recited by these generations. [But] he endeavored and gathered an amount of books for the hundreds [of worshipers] who needed this undertaking, and expended a great deal of money and established his books, and [he] still remains accountable [for unpaid debts].

Moreover, Sofer continues:

And our pious Gaonim and Rabbis of Ashkenaz, may their righteous memories be blessed, have determined that his reward should consist of reserving the market for 25 years, so that no other person shall trespass upon his boundary, since he was unable to print a sufficient amount [of machzorim] for all of Israel, for 25 years, at a single moment in time. Hence, he prints and reprints [the books at various intervals], and he [may] secure his reward for all of [the merchandise].

Sofer concludes that “the other publishers should publish different maḥzorim or other books, for why should they benefit from that which he [Wolf Heidenheim] has created?” The other publishers are like the interloping fisherman in the Case of the Fish who Lock their Sight on the Bait. They should be required “to remove their nets the distance of a parsa,” so that that they must seek to catch other fish.

E. Conclusion

In sum, Mordekhai Banet held that rabbinic reprinting bans are grounded in a consensus agreement among the publishing trade – essentially guild regulations, not the halakhic doctrine of wrongful competition or, at least with respect to editions of books that have already been in print, rabbinic authority to protect those who engage in mitzvot. Accordingly, rabbis have no authority to issue a ban that helps one publisher at another’s expense. Further, even if rabbinic reprinting bans are valid exercises of rabbinic authority, they may not be enforced outside the territory in which they were issued or after the publisher has sold out his edition and thus recovered his investment. Finally, Banet argued that reprinting bans are counterproductive because, by preventing Jewish publishers from reprinting, they merely leave the field open to non-Jewish publishers, who are not bound by the bans.

In contrast, Moses Sofer ruled that rabbinic reprinting bans serve to enforce a publisher’s right against wrongful competition under fundamental tenets of halakha. Further, even if publishers did not have such a right, rabbinic reprinting bans would be a necessary measure to promote the publication of books of Jewish liturgy and learning and to protect those who engage in the mitzvah of publishing such works. Moreover, since publishers’ markets extend across borders, bans must be enforceable throughout the Jewish world, not just in the territory where issued. Finally, bans may be enforced even in an age of competition from non-Jewish publishers and secular governments’ contraction of rabbinic autonomy. Bans may prohibit Jews from buying illicit editions and kings should not object so long as they receive tax revenue from the Jewish publisher who benefits from the rabbinic reprinting ban.

Sofer’s responses to Banet were not his last word on the subject of copyright. As we shall see in the next chapter, he later presented grounds to limit the scope of rabbinic reprinting bans and seemed to back away from his insistence that rabbinic reprinting bans serve to enforce publishers’ right against wrongful competition.

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