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

A. Banet’s Responsum to the Dyhernfurth Rabbi, August 22, 1822

In his initial responsum, Banet sets out a number of grounds for why Heidenberg’s reprinting bans were of no force. In so doing, he narrowly construes Moses Isserles’ ruling in favor of the Maharam of Padua so as to avoid disagreeing with Isserles. The arguments that Banet adduces in his responsa boil down to these:

1. Under the Jewish law of wrongful competition, a publisher does not generally have a right to prevent reprinting by a second publisher, certainly when the first publisher has already sold out his first print run.

Banet devotes considerable attention to presenting and analyzing the various paradigm cases that provide the framework for the Jewish law of wrongful competition. He begins with the basic rule favoring free competition absent grounds for a specific exception. Like Isserles, Banet’s primary reference point is the Talmudic case of the Open Alley (“mavoy”).⁷⁵ In that case, the majority ruled, rejecting Rav Huna’s contrary position, that a resident of an alleyway (or neighborhood) who is the first to establish a mill for commercial purposes in that alleyway may not prevent a local competitor from opening an adjacent mill. As Rashi explains, the competitor may simply shrug off the incumbent merchant’s complaint with, “Whoever comes to me, let him come; whoever comes to you, let him come.” As we have seen, virtually all Talmudic authorities follow that majority rule, as do the Mishneh Torah and Shulḥan Arukh.⁷⁶

Banet then canvasses four leading Talmudic cases presenting exceptions to the rule favoring free competition: the cases of (1) the Fish Who Lock their Sight on the Bait (“sayyara”), (2) the Dead End Alley (“mavoy satum”), the Poor Man Reaching for a Crust of Bread (“‘ani ha-mehapekh ba-ḥarara”), and (4) the Poor Man Who Shakes an Olive Tree (“‘ani ha-menaqef be-rosh ha-zayit”). The first and third cases were cited by the Rome rabbinic court in issuing its reprinting ban in favor of Eliyahu Bakhur. The second was invoked by Moses Isserles in his ruling in favor of the Maharam of Padua. CHECK - -does Rema also discuss others?

1) The Case of the Fish who Lock their Sight on the Bait (“sayyara”): This case (which also appears in BT Bava Batra 21b, the same pericope as the case of the Open Alley) involves two fishermen, each casting a net in order to catch fish. The Talmud rules that the second fisherman must keep his fishing nets away from a fish that has been targeted by the first fisherman for the full length of the fish’s swim. The reason is sayyara (they have set their “sight” on the food.).

Rabbinic commentators provide different explanations for why this case differs from the Open Alley. Rashi, Rabbi Solomon Yiẓḥaqi of Troyes, France (1040-1105), explains that a fish has the tendency to go after the first thing that it sees. Therefore, when the first fisherman targets the fish, he can be justifiably confident that he will catch it, meaning that the fish is treated as if it already has been caught by the first fisherman. As a result, when the second fisherman interferes and deflects the fish, it is as if he has damaged the first fisherman by literally taking away “his” fish. By contrast, in the Open Alley, the potential customers of the mill are not considered to be “captured” by the first mill owner, but can go to whichever mill they choose.

Of course, every explanation generates its own controversy. The foregoing interpretation attributed to Rashi is not universally shared. In particular, Banet noted that Moses Isserles (known in Jewish tradition as “the Rema”) understood Rashi differently. Under the Rema’s interpretation, the difference between The Fisherman, in which one could justifiably limit competition, on the one hand, and The Open Alley, in which competition could not be stopped, on the other, does not result from the confidence of the first fisherman that he will capture the fish. Rather, the distinction between the two cases involves the certainty of the damage to be caused to the first actor. Because potential mill customers are able to choose to return to the first mill even after the rival mill has opened, damage is not certain; hence, it is not proper to limit competition. Let us say that Reuven operates the first mill and Shimon opens a rival shop. Customers can still go to Reuven. Even if they switch over to Shimon, nothing prevents them from later returning to Shimon. By contrast, because fish essentially have no choice regarding being captured by the fishnets, damage is certain and competition properly may be limited.

Banet in addition adduced the view of Mordekhai ben Hillel (1250-1289), who invoked the doctrine of ma’arufia on this point. Dating from France and Germany in the tenth century, that concept refers to a recurrent Christian client (nothwithstanding the Arabic etymology of the word itself).⁷⁷ It prohibits one Jew from attempting to “steal” another’s established commercial client. The rationale for this principle is that the first Jew has invested time, money and effort in order to achieve the special business ties that he has nurtured with his ma’arufia, and thus no one else should be permitted to interfere with the relationship. According to Mordekhai ben Hillel, those Jewish communities that follow the doctrine of ma’arufia (the custom is not universal) consider the Gentile client’s patronage to be “certain,” akin to a “fish that has set its eye on the bait,” as it were.⁷⁸

2) The Case of the Dead End Alley (“mavoy satum”): As also elucidated by the Rema in his ruling, this case -- a variant of The Open Alley – was initially offered by the Aviasaf, a compendium of commentary and rulings from German scholar Eliezer ben Joel Ha-Levi (1160-1235).⁷⁹ It involves the resident of a community who operates a mill at the terminus of a dead-end alleyway. According to many rabbinic authorities—even those who reject Rav Huna’s minority position regarding the Open Alley—the first mill owner here can prevent a competitor from opening up a new mill near the open end of the dead-end alleyway.⁸⁰ These authorities explain that, because the two mills are located in an alleyway with only one entrance, customers cannot reach the first mill without passing by the door of its newly-opened competitor, and therefore will end up doing business with this competitor rather than continuing on to the first mill. Under these circumstances, the first mill owner located inside the alleyway may prevent his competitor from entering the market and opening another mill closer to the entrance of the alley, given that damage to the first mill owner as a result of such competition is certain. In this case, the second mill owner is infringing upon another’s business practices.

To summarize, the damage that occurs to the first fisherman when the second fisherman uses his nets to try to catch the same fish is considered “certain,” because otherwise the fish would have automatically gravitated to the first fisherman’s net. By contrast, in the Open Alley, the damage to the first mill owner is speculative, because a potential customer might choose to return to the equally proximate first mill owner after doing business with the new, competing mill. In the case of the Dead End Alley, however, inasmuch as every customer of the first mill now has to pass by the new shop, the damage again becomes virtually certain.⁸¹

3) The Case of the Poor Man Reaching for a Crust of Bread (“‘ani ha-mehapekh ba-ḥarara”): This case (BT Kiddushin 59a) involves a poor man who finds a crust of bread that is ownerless and tries to take it. A second man comes along and grabs it first. The Talmud explains that, in this case, the second man is considered to be an “evildoer.”

That phraseology is deliberate. Let us imagine that Reuven owns a crust of bread outright and Shimon comes along to take it. In that instance, Shimon is a thief and subject to the full force of Torah law, including restitution and a fine [Exod. 22:3]. Reverting to the instant case, by contrast, the second man who obtains the bread that was sought by the poor man is called an evildoer by analogy to a thief, but is not actually a thief. The difference, in practical terms, is that the usurper is subject to moral condemnation, but does not incur the monetary consequences that would attend outright theft.

4) The Case of the Poor Man Who Shakes An Olive Tree (“‘ani ha-menaqef be-rosh ha-zayit”): This case (Mishnah Gittin 5:8) involves a poor man who climbs to the top of an ownerless tree to knock some olives to the ground, so that he may collect them after he comes down. After the olives land on the ground, a second person appears on the scene to gather them before the first man can climb down to collect them. According to the sages of the Mishnah, the conduct of the second person, albeit not outright theft once again, is treated as such in an adjacent category, “theft because of the ways of peace.” The rabbis reach that determination so as to avoid arguments, fighting, and hatred between people.

Under the minority view of Rabbi Yosi (a second-century tanna typically mentioned in the Talmud without any patronymic), the second person, pursuant to rabbinic law, is treated no differently from an actual thief. Accordingly, the court may order the olives to be removed from the second person and returned to the poor man who shook the tree. Nevertheless, the majority view does not go that far. It disallows the poor man from affirmatively going to court to reclaim the olives; as a practical matter, therefore, it merely treats the second man as the same type of “evildoer” condemned in the previous case.

Having enumerated the paradigmatic exceptions to the rule favoring free competition, Banet proceeds to distinguish them from the case of the second publisher who wishes to reprint the first publisher’s book. Banet initially suggests that one could learn from The Poor Man Who Shakes the Olive Tree that the second publisher should be liable for “theft because of the ways of peace,” giving due consideration to the toil and effort undertaken by the first publisher to produce his set of maḥzorim. Banet explains that the first publisher had toiled hard to put together a definitive Hebrew text and to translate the maḥzor into the vernacular; now, the second publisher had come along in an attempt to benefit from the first person’s effort.

Despite that wind-up, however, Banet concludes that the case before him is not like The Olive Tree and therefore did not implicate “theft because of the ways of peace.” Banet notes that, in both that case and the case of the Poor Man Reaching for a Crust of Bread, the second person wanted to take the exact item that the poor man had toiled to obtain. By contrast, in the case of the publishers, the second is not taking from the first the same exact set of maḥzorim that the first had worked so hard to produce. Rather, the second is printing his own set of maḥzorim. The first publisher objects not because the second is taking an item from him but rather because customers – potential customers – of the first publisher will now purchase books from the second publisher instead. Where have we ever seen, asks Banet rhetorically, that a person who works hard to produce an item acquires the purchasers of that item as a result of his hard work, such that another cannot come along and try to convince those purchasers to acquire a competing item from him, rather than from the first actor? According to Banet, the notion that an individual has certain rights with respect to an item merely because of the effort he undertook in connection with that item applies only to the very item itself and not to prospective purchasers of that item. Therefore, this case is not like Crust of Bread or the Olive Tree—for, in both those instances, the very crust of bread or olives that Revuen desired were scooped up by Shimon. In this case, however, the very maḥzorim published by Reuven would not be sold by Shimon, as Shimon had instead printed up alternative physical maḥzorim that customers might purchase.

In addition, Banet notes that the case of the competing publishers is not one that involves certain damages or clear profit to the first publisher. The first publisher cannot say with certainty that the public would buy his maḥzor, particularly inasmuch as Heidenheim sold his maḥzor at an expensive price. For that reason, “the fish had not set their eye on the bait,” as it were, allowing Banet to conclude that this case also is not like that of the Fisherman.

Banet puts forth yet another reason to distinguish the case before him from those of the Fisherman and the Olive Tree. He explains that the concept that the second person should not benefit from the first person’s toil applied to those cases because, in each, the first person did not receive any benefit whatsoever from his efforts: the Fisherman lost out when the fish swam into the nets of the rival angler, and the Poor Man likewise came up empty when the second person gathered up all the olives knocked off the tree. Here, by contrast, the first publisher has already benefited from his effort by selling out his first edition of the maḥzor. Why, asks Banet, should that first publisher be able to work to produce his first set of maḥzorim, profit from that work, and then profit again from later editions without any further work on his part, thereby causing a loss to others, i.e., the second publisher, who would be barred from selling his own set of maḥzorim, in which he had invested a significant sum to publish?

2. The Rema’s ruling in favor of the Maharam of Padua concerned a special case and is not applicable beyond its highly particular facts.

Banet conclusion that the Jewish law of wrongful competition does not support the enforcement of a reprinting ban against the second publisher would appear to put him a collision course with the famous ruling of the Rema in favor of the Maharam of Padua. However, Banet carefully interprets the Rema’s ruling so as to highlight distinct aspects of that case and ruling that distinguish them from most cases involving second publishers, including the case before Banet.

First, Banet asserts that once the Maharam of Padua received the right to publish the works of Maimonides, the Maharam was confident that others would purchase these works because they were dear to all. Therefore, the case was similar to Rashi’s explanation of The Fisherman—meaning that the Maharam was entitled to prevent his competitor, Giustiniani, from publishing an infringing version.

Second, Banet maintains that Issserles ruled in favor of the Maharam because Giustiniani had announced in advance that he intended to sell his competing version of the Mishneh Torah for one gold coin less than the Maharam, and Giustiniani, according to the Rema’s ruling, was unusual in that he had the financial resources to sell his version at that sharply reduced rate. Therefore, Banet explains, the Rema could bar Giustiniani’s publication of his competing version because it involved “certain damage” to the Maharam of Padua. In general, however, a competitor should be allowed to enter the marketplace and sell his competing product at a lower price. In the usual case, in which competing merchants do not have the resources to absorb losses from selling at a below-market rate, it is permissible to compete by selling at a lower price. As Banet notes, in the Open Alley case, the Talmud permitted a competing resident to open up a second mill and was not concerned with the possibility that the second mill owner would sell his products at a lower price, thereby causing damage to the first mill owner.

Third, Banet contends that, in the case before Isserles, Giustiniani proclaimed that he would publish his competing version of the Mishneh Torah at a below-market price with the specific aim of causing financial ruin to the Maharam of Padua and his publisher and Giustiniani’s rival, Alvise Bragadini. Therefore, the Rema’s ruling can be conceptualized as providing protection to the Maharam against predatory pricing. Isserles was holding only that a publisher, like any other merchant, may not sell his works at below market price with the intent to drive his competitor out of business. Banet contends, in contrast, that the second publisher in the case before him had no intent to harm the first publisher, but merely was seeking to benefit himself. Therefore, the second publisher would not lower the price of his competing maḥzor if it would result in him suffering a loss (in contrast to Giustiniani). Alternatively, if the second publisher were able to lower his price, then the first publisher would also be able to reduce his price (in contrast to Bragadini), thereby reducing the overall market price for maḥzorim and “may a blessing come upon both publishers” for such conduct! Banet therefore concludes that, in this case, where the second publisher actually seeks to publish his competing maḥzor without reducing his price, that attempt to enter the market does not result in “certain damage” to the first publisher and therefore should be permitted.

Fourth, Banet suggests that Isserles’ ruling is limited to cases in which both publishers operate in the same location and is thus inapplicable where the second publisher prints and sells his maḥzor in a different territory than the first. As Banet notes, according to Rav Huna’s minority view, a resident of an open alleyway can prevent both a resident of a different alleyway and a resident of his own alleyway from opening up a competing business in the first resident’s alleyway. However, even according to Rav Huna, a resident of one community may not prevent a resident of a different community from opening up a competing business in that second community. According to Banet, it is “possible” that the Rema’s ruling was based on the fact that both the Maharam of Padua and Giustiniani were located in the same “alleyway” (i.e., the province of Veneto). Alternatively, Banet posits that, because both the Maharam and Giustiniani were sending their competing versions of the Mishneh Torah to the same places where potential customers were located, it was as if both were located in the same alleyway. By contrast, what right does a person in one city have to prevent a person in a different city from engaging in a competing business?⁸² If a person possessed such a right, then all commerce would be nullified and the first person who engaged in a particular business and sent his products to the marketplace would be able to bar all others from engaging in a similar business anywhere in the world.

Finally, Banet asserts that the two cases are distinguishable because government regulation is different in his own day than it was three centuries earlier when Isserles ruled. Banet notes that governments in his own time give permits to those who want to engage in publishing and other forms of commerce. Through this system, the king collects taxes, people make a living, and the commercial world is able to function. Therefore, how would it occur to someone that one person would be able to prohibit another from competing with him? Such a prohibition would violate the “law of the land” permitting such competition – and in commercial matters, Jewish law typically gives way before the law of the land. Banet surmises (incorrectly) that, in Isserles’ time, kings must not have overseen printing at all, and publishing was undertaken without permission or permits. Now, however, when everything is done with permission of the king, a person in one city does not have the right to prevent someone in a different city from engaging in competition.

3. Absent a violation of the Jewish law of wrongful competition, rabbis lack the authority to issue and enforce a reprinting ban unless doing so would not impose any loss on the second publisher.

After determining that the unauthorized reprinters of the Roedelheim mahzor do not violate the Jewish law of wrongful competition, Banet turns to another serious question raised by his analysis: If a competing publisher is neither guilty of “theft because of the ways of peace” nor considered an “evildoer,” where did the sages of earlier generations derive the right to issue bans that result in a benefit to the one person and a loss to his competitor? According to Joseph Colon ben Solomon Trabotto (c. 1420 – 1480), Italy's foremost Judaic scholar and Talmudist of the latter part of the fifteenth century and known in Jewish tradition as “the Maharik,” even the greatest rabbi of the generation is not allowed to issue a regulation that results in a commercial benefit to one person and a loss to the other, except in exigent circumstances.⁸³ The Maharik’s precept follows from that of some leading rabbinic authorities.⁸⁴ But it is not the majority view; most medieval authorities permit taking property from an individual pursuant to a regulation duly enacted by majority vote.⁸⁵ Nevertheless, Banet presents the Maharik’s precept as the normative position and then seeks to elucidate why most reprinting bans are nevertheless permitted, while the bans on reprinting the Roedelheim maḥzor run contrary to the Maharik’s precept and thus may not be enforced.

Banet first explains that the Rema could ban Giustiniani’s competing version of the Mishneh Torah without violating the Maharik’s precept because the Rama’s ban did not cause Giustiniani any actual loss—for, were it not for the work of the Maharam in producing his edition of the Mishneh Torah (with the Maraharam’s original annotations, corrections, and additions of commentary), Giustiniani would have had nothing to begin with. The factual premise here is that Giustiniani’s edition copied heavily from the Maharam’s edition and thus that Giustiniani could not have prepared his edition of the Mishneh Torah unless the Maharam had first prepared his. (As we discussed in Chapter 4, this factual premise – whether it is the Rema’s or Banet’s – is probably not accurate; it seems that Bragadini copied as much or more from Giustiniani than the other way around.)

Proceeding to the case before him, Banet then asks how, given the Maharik’s precept, one could possibly justify reprinting bans that rabbinic authorities have frequently issued for new editions of books that had previously been printed, such as the maḥzorim at issue in this case. The difficulty is that if the reprinting bans on the Roedelheim maḥzor are enforced, Heidenheim will benefit, but other publishers will be harmed. Banet explains that, prior to the Heidenheim’s preparation and publication of the Roedelheim maḥzor, publishers regularly printed older versions of the maḥzor. However, now that the Roedelheim maḥzor has been published, it has become the standard, such that no one would purchase a maḥzor that did not have the same content and format as the Roedelheim maḥzor. As a result, if the bans on reprinting the Roedelheim maḥzor are upheld, the other publishers will lose out entirely; they will both be prohibited from publishing the new standard version of the maḥzor and will be left with no market for the older versions that they had previously published. (Banet seems implicitly to distinguish the case of Giustiniani, first, on the grounds that Giustiniani had not previously invested in publishing an edition of the Mishneh Torah and, second, by assuming that Giustiniani could have published and sold an alternative versions if he had wished.) Therefore, to enforce according to the precept enunciated by the Maharik, the bans on reprinting the Roedelheim maḥzor would violate the precept enunciated by the Maharik that rabbinic regulation may not benefit one while causing monetary harm to another.

However, Banet intimates, the Roedelheim maḥzor is a special case. In most instances, no particular edition of a previously printed book becomes the indispensable standard edition for that work. As a general rule, therefore, publishers do not suffer a loss if the publisher of a particular edition enjoys a reprinting ban for that edition. Indeed, each publisher would benefit from a reprinting ban for his particular edition, while other publishers would be free to continue to market their editions. Sometimes publisher A would be the first printer and would be able to restrain B and C; when another work arose to be printed, B might be the printer, and could act to restrain A, and C; and, on another occasion still, C would be the one to benefit. Accordingly, Banet concludes, the sages of previous generations must have instituted the practice of issuing bans on reprinting new editions of previously printed books (as well as of newly authored books) because all publishers stood to benefit from that practice. In this way, the customary ban arose with consent of all concerned.

As Banet further elucidates (again citing the Maharik), there were many potential purchasers of the Roedelheim maḥzor, and the first publisher therefore would make a profit publishing this work. There were no potential purchasers of the older versions of the maḥzor, however, and the publishers of those works thus would not make a profit. Moreover, given that the maḥzor was the popular publication of the day, one could not even tell other printers to focus their energy on other publications. Accordingly, there was no general consent in the affected industry to enforce this ban on reprinting the Roedelheim maḥzor.

4. In any event, reprinting bans are meant only to secure investment in the publisher’s first print run and thus may not be enforced after the publisher has sold his first print run.

Banet next addresses the policy reasons that might justify the ban contained in rabbinic approbations. The sages, he surmises, may have imposed bans (such as the one included in the Roedelheim maḥzor) to strengthen and protect from harm those who perform religious commandments by publishing books of Jewish liturgy and learning. If observant people (Heidenheim being the obvious example) were worried that others would be able to publish whatever they chose, they would be inhibited from publishing such books for fear that they would suffer a loss via subsequent competition. Reprinting bans imposed by the sages would alleviate this fear and thus enable publishers to invest in their initial printing. Banet adds, however, that if this is the purpose underlying reprinting bans, those bans should last only until the first publisher has sold out his initial print run, presumably since selling out the initial print run is sufficient for the publisher to recover his investment. The imposition of a ban for a long period of time, which would prevent others from reprinting a book of Jewish liturgy or learning even after the first person sold out his print run, is inappropriate, and is not supported by the above rationale.

5. Even if reprinting bans are enforceable, they are not enforceable outside the territory in which they were issued.

Banet further concludes, citing a ruling of R’ Isaac bar Sheshet Perfet (1326-1408; known in Jewish tradition as “Rivash”) that a rabbinic court has no authority to issue a ban that purports to apply outside the court’s territory.⁸⁶ The Rivash’s ruling followed on earlier precedent that limited the force of halakhic rulings to the territory of the rabbi who issues the ruling.⁸⁷ According to Jewish tradition, the ancient Sanhedrin, a supreme court consisting of 71 judges that convened in Jerusalem, did have legal authority to issue rulings that were universally binding on the Jewish people. Further, following the dissolution of the Sanhedrin in the mid-fourth or early fifth century, rabbinic judges throughout the Jewish world generally recognized the central authority of the Babylonian Geonim, who headed the two leading academies of Jewish learning during the period 589-1040. Since that era, however, neither Jewish law nor rabbinic tradition has recognized any supreme rabbinic authority. Rather, halakhic interpretation and rabbinic regulation and decrees are binding only within the territory of the rabbis who issued them, even if certain rabbis exert considerable influence on their fellow posekim by virtue of the force of their reasoning, position, and personality. And, again, according to the Rivash, a fortiori, the power of a rabbinical court to issue a ban carrying a penalty of excommunication is limited to the territorial jurisdiction of the court. Hence, following the Rivash, Banet concludes that the reprinting bans issued for the Rodelheim maḥzor could have no force outside the territory of the rabbis who issued them, and were thus of no effect across the border in the Prussia and Austria.

6. Reprinting bans that are merely printed in the book they aim to protect are not enforceable because a ban carrying a penalty of excommunication must be pronounced orally in a synagogue.

Banet further attacks the validity of reprinting bans by citing authority that a ḥerem, like an oath, is effective only if pronounced orally in front of the community. A ḥerem that is promulgated only in writing, including in a printed form in a book, is void from the outset. The rule requiring that a ban be pronounced orally in synagogue provides further support for the understanding that bans are effective only in the local territory where they are issued. If a ban must be orally pronounced and heard in the community where it is issued, it will not have effect against someone who lives elsewhere and thus could not have heard it.

7. Even if reprinting bans are enforceable in principle, they should not be enforced today, the reason being that since the rabbinic bans cannot, in practice, be enforced against Christian publishers, enforcing them against Jewish publishers will only harm the Jewish publishers without benefiting the beneficiary of the ban.

Banet also maintains that the factual realities of the publishing world in his age undercut both the practical basis and the basis under Jewish law for enforcing the ban on reprinting the Roedelheim maḥzor. Banet notes that, in his time, with a proliferation of non-Jewish publishers not obligated to follow any ban that a Jewish authority might impose on publishing, policy reasons in favor of such a ban lack force. A Jewish publisher who follows the reprinting ban loses out, whereas non-Jewish publishers are under no parallel disability. Therefore, the ban found in the Roedelheim maḥzor is both illogical and unenforceable.

Banet concedes that, in certain situations, the “Light of the Exile,” Rabbenu Gershom ben Judah (c. 960 -1040? -1028?), had imposed a ban carving out exclusivity in certain retail markets in order to save Jewish store owners from the losses that would arise from mutual competition. But Banet adds that if circumstances were such that non-Jews were willing to engage in competition with the Jewish store owner, then another Jew was also permitted to engage in such competition—for any other rule would simply leave the field open to Gentiles. Banet also cites the responsa of the Maharshal, Morenu Shlomo ben Yechiel Luria (Poland, 1510-1573), regarding the technical issues of an arenda (from the Polish for “leasehold”)— in essence, a concession that a person receives from the government or a nobleman for the sale of particular goods, typically a monopoly on distilling⁸⁸ or estate management.⁸⁹

In the arenda and other situations where prohibiting Jewish commerce would simply open the field to Gentile competition, Banet concludes, Rabbenu Gershom did not impose a ban. Therefore, in the case before him, if “the printer in Vienna” (a) has the right to engage in printing, (b) can print what he chooses, and (c) has received a copy of the Roedelheim maḥzor from Heidenheim’s partners,⁹⁰ and if no other Jewish printer but Heidenheim has the right to print the Roedelheim maḥzor in his land, then this printer in Vienna would reprint the maḥzor and distribute it throughout the world. Better, therefore, is a ruling that other Jews have the right to reprint the Roedelheim maḥzor, so that the printer from Vienna would not be able to walk into a wide open market. For, in either case, Heidenheim would lose business—either from the non-Jewish Viennese printer or from the other Jewish printers who would compete with him. The conclusion follows that the sages would not impose a ban on reprinting the Roedelheim maḥzor, because such a ban would be counterproductive.

B. Sofer’s Response to Banet, March 7, 1823⁹¹