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

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A.Sefer Krovot Hu Maḥzor

In 1798, the renowned Hebrew grammarian and Masoretic scholar, Wolf Heidenheim (1757-1832), established a Hebrew and German printing house in Roedelheim with the financial backing of a Jewish partner, “an energetic business man” named Barukh Baschwitz.17 The pair obtained a license to establish the press from the local count, Graf Vollrath of Solms-Roedelheim. They aptly named it the Orientalische und Occidentalische Buchdruckerei (the Oriental and Occidental Printing House).

Heidenheim published on a wide variety of subjects. But, like most Hebrew presses in Germany in that era, the publication of prayer books was his bread and butter.18 His small prayer book for times other than holidays, the siddur Sefat Emet, went through more than 150 printings, and was long “distinguished for its correctness and typographical beauty.”19 He also printed a larger prayer book, Safah Berurah, with German translation in Hebrew characters. Sefer Krovot Hu Maḥzor, the work that sparked the dispute we describe in this chapter, was a nine-volume edition of the maḥzor, the prayer-book used for holiday worship over the annual cycle of the Jewish calendar. Like Safah Berurah, it featured a translation of the Hebrew text into High German, but with the German transliterated in Hebrew characters, as well as the holiday liturgy in its original Hebrew.

Heidenheim set the standard for high quality, typographically precise editions of traditional prayer books. Yet, as an early admirer of the Bi’ur, Moses Mendelssohn’s German translation of the Bible and Hebrew commentary, Heidenheim also exemplified the complex brew of traditional rabbinic Judaism and modernist reform that characterized the late eighteenth and early nineteenth century proto-Haskalah (often translated as the “Jewish Enlightenment”).20 Sefer Krovot Hu Maḥzor, of which the first volume was published in 1800, featured a preface, interspersed with poetry, by Solomon Dubno, a proto-maskilic Bible scholar and Hebrew poet who had partnered with Mendelssohn on the Bi’ur and had encouraged Heidenheim to produce his own critical edition of the Pentateuch.21 In 1812, Heidenheim published Divre Iggeret, a tractate authored by the reformist rabbi, Menachem Mendel Steinhardt, in which Steinhardt defended the highly controversial ruling that he and his fellow reformists at the Jewish consistory of Westphalia had issued permitting Ashkenazic Jews to eat legumes on Passover. In his forward to Steinhardt’s tract, Heidenheim expressed his own approval of the reformist school that the Westphalia consistory had established in Kassel. In Heidenheim’s 1831 edition of the prayer book Siddur li-Venei Yisrael (1831), which presented his translation in German letters for the first time, Heidenheim omitted certain prayers and included a preface by the fervent proponet of “enlightened” education and theological reform, Michael Creizenach, which presented an historical and critical analysis of the prayers and advocated gradual reform in light of changing circumstances.

Sefer Krovot reflected Heidenheim’s considerable investment of time and study. To compile the nine-volume maḥzor, Heidenheim did not simply reprint earlier print editions or rely on the customary liturgy of his community. Instead, he produced a critical edition by scouring previous volumes and going back to the most ancient manuscripts he could locate, including one dating back to 1258. The project expanded beyond the liturgy practiced in neighboring Frankfurt to include notes annotating the traditions followed by Ashkenazic congregations throughout the world.22 Indeed, Heidenheim produced two parallel editions, one following the “Ashkenazic” liturgical rite -- that traditionally followed in Germany and northwestern Europe – and the other following the Polish rite, which included local customs originally introduced into the worship service by Jewish communities of Poland-Lithuania and which had been brought to Germany by the many Polish Jews who migrated westward in the seventeeth and eighteenth centurys.23

Bringing the Sefer Krovot to print was also a substantial undertaking, spanning over several years. The nine volumes of the Ashkenazic rite edition were printed serially between 1800 and 1805. The Polish rite edition was printed between 1804 and 1807.

The liturgical value of Sefer Krovot to contemporaries emerged from the numerous innovations that Heidenheim pioneered. Most importantly, Sefer Krovot presented the first complete German translation—transliterated in Hebrew characters—to be published of the holiday worship service. The ability to read and understand Hebrew was rapidly diminishing among German Jews of the early nineteenth century even if worship services were still conducted that language.24 German Jews spoke and read Western Yiddish, a dialect of German that included many Hebrew words and was written with Hebrew characters. Many could also read High German when written in Hebrew characters, although few spoke High German fluently or were able to read in the German alphabet. Sefer Krovot thus enabled German Jews to understand the lexical meaning of the Hebrew liturgy that constituted their holiday worship service. Sefer Krovot also featured Heidenheim’s textual corrections, based on his historical investigation of previous Hebrew editions published in Italy and Germany, and Heidenheim’s own commentary, extending both to substantive explanations and descriptions of textual variations that he uncovered. The work, which came to be known as the “Rodelheim maḥzor,” went through numerous printings in both the Ashkenazic and Polish rite editions, throughout 1800s and into the twentieth century.25

B. Rabbinic Reprinting Bans

Heidenheim obtained the haskamot of eight prominent rabbis for the first parallel editions of Sefer Krovot. With the exception of haskamot from Solomon Hirschell, chief rabbi of Great Britain, and Arieh Leib Breslau, chief rabbi of Rotterdam, all were issued by rabbis of principalities and free cities in Germany or Denmark. Evidently, Heidenheim’s target market for his maḥzor consisted of communities of German-speaking Jews of north-central Europe. The absence of haskamot from rabbis in Prussia or Austria suggests that, given severe restrictions on the import of Jewish books into those territories, those German-speaking lands were, at best, secondary markets for Heidenheim, primarily served by copies that would be smuggled across the border.

Heidenheim obtained four haskamot, including approbations and reprinting bans, prior to commencing printing. They appear in the first volume of the Ashkenasic rite edition, printed in 1800, the prayerbook for the first six days of Passover. Of the subsequent volumes printed in 1800, the volume for the first day of Rosh Ha-shana contains a note apprising the reader that the pertinent approbations and reprinting bans have already been published in the first volume dedicated to Passover, but the respective volumes for the seventh and eighth days of Passover and for Yom Kippur do not contain haskamot or any reference to those printed in the earlier volume. The four additional haskamot appear, respectively, in volumes printed in 1803 and 1805, but all refer back to the four haskamot printed in the first volume and purport to apply to the entire nine-volume edition.

Sefer Krovot’s primary haskamot, those appearing in the first volume printed in 1800, were issued, respectively, by Noaḥ Ẓvi Ḥaim Berlin of Altona, Naftali Hirsh Katzenellenbogen of Frankfurt an der Oder, Arieh Leib Breslau of Rotterdam, and Moshe Tuvia Sontheim of Hanau. Following effusive praise for Heidenheim’s piousness, knowledge, and meticulousness and the high quality of his and his partner’s work, each pronounces a broad, twenty-five year reprinting ban. For example, Berlin’s haskama forbids wrongful competition by reprinting, without the author’s permission, one or more volumes of the maḥzor with or without the German translation or of the German translation standing alone, including with small changes in language, title, or quantity or quality of the text. Berlin’s haskama also forbids any participation with non-Jews in printing such works. Violators of the reprinting ban, his haskama states, will be subject to ḥerem. The other three haskamot are quite similar; indeed, Sontheim’s contains some of the same formulaic language as Berlin’s. Of note, Breslau adds that it is also forbidden to buy or sell any maḥzor edition printed by a non-Jew that a Jew would be forbidden to print under the reprinting ban. Katzenellenbogen states, similarly, that it is forbidden to buy any maḥzor printed in violation of the reprinting ban. Breslau also highlights the importance of Heidenheim’s maḥzor, observing that most European Jews need German translations in order to understand the holiday liturgy.

Pinhas Horowitz (1730-1805), the chief rabbi of Frankfurt am Main, must have been among the first rabbis whom Heidenheim asked for a haskama. Horowitz was widely respected.26 Further, at that time, Frankfurt was home to the third largest Jewish community among major cities in the German-speaking world, following Prague and Hamburg.27 Frankfurt was also the primary market for Hebrew books printed in neighboring Roedelheim.

Horowitz gave his approbation and reprinting ban to Sefer Krovot, but not until 1803, three years after its intial volumes were printed. Horowitz’s delay might have resulted from his concern that Heidenheim’s German translation of the prayer book would serve a reformist agenda, similar to that of Moses Mendelssohn’s German translation of Pentateuch and rabbinic commentaries. Horowitz vigorously opposed the Haskalah movement and, in 1782, had famously preached a sermon denouncing Mendelssohn’s Biur as heretical. One might expect that the traditionalist rabbi would have held a similarly dim view of a German translation of the prayer book, especially given that such translations were a much-trumpeted, favored project of the proto-maskilim in Mendelssohn’s circle.28

Whatever might have been his initial misgivings, Horowitz eventually gave his imprimatur to Heidenheim’s German translation of the maḥzor. But he likely insisted upon inspecting the volumes that had already been printed before doing so. Horowitz also, no doubt, looked to the eminent rabbis who had already granted their haskamot in deciding to issue his own. Presumably, he relied particularly on the haskama, dated 19 Nissan 5560 (March 16, 1800), of Arieh Leib Breslau, whom Horowitz held in high regard as a Talmudic authority and to whom Horowitz repeatedly referred questions of Jewish law.29 At any rate, following on Horowitz’s approbation and those of the other Ashkenazic sages upon which he relied, rabbinic traditionalists came to celebrate Heidenheim’s maḥzor as a critical bulwark against reform, as a vital tool for enabling the mass of European Jews to understand the holiday liturgy while continuing to recite it, in full, in Hebrew. Decades later, in a responsum devoted to Jewish copyright law that we shortly discuss, the ardent traditionalist Moses Sofer lauded Heidenheim: “And were it not for him, our liturgical poems would have already been buried underground and, as is well understood, would not have been recited by these generations.”30

Like the prior haskamot for Sefer Krovot, Horowitz’s “haskama and ḥerem,” dated 12 Elul 5563 (August 30, 1803), extends to both Wolf Heidenheim and Heidenheim’s partner, Barukh Baschwitz. Horowitz prefaces his statement by declaring that he is joining with rabbis who earlier gave their haskama to Heidenheim’s maḥzor. Horowitz then praises Heidenheim as a rabbi of great punctiliousness and lauds the fruits of Heidenheim’s and Baschwitz’s holy work. Finally, Horowitz pronounces a sweeping reprinting ban. He forbids anyone, on pain of ḥerem, from engaging in wrongful competition by printing or causing to be printed the Heidenheim-Baschwitz maḥzorim, with the commentaries and German translations, or the commentaries or German translations by themselves, whether in whole or in part. That ban, states Horowitz, is to remain in force for the period set forth by the rabbis who had already issued reprinting bans, which, as we have seen, was twenty-five years.

When Horowitz died in1805, his son Ẓvi Hirsh Horowitz (1730-1817), succeeded him as rabbi of Frankfurt.31 On September 7, 1807, the younger Horowitz issued a warning to Jews not to purchase copies of an edition of Heidenheim’s maḥzor that a certain unnamed publisher had reprinted without Heidenheim’s permission. Horowitz reiterated that Jews who violated the rabbinic bans issued for the maḥzor, particularly that of his father, would be subject to excommunication. Heidenheim published Zvi Hirsch Horowitz’s warning in subsequent editions of his maḥzor, together with the approbations and reprinting bans from the first edition, beginning with the respective second editions of the Ashkenazi and Polish rites, both printed in 1811.

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