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

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 Our discussion of the Yiddish Bible dispute draws upon Aptroot 1993; Aptroot 1989; Fuks and Fuks-Mansfield 1987: 236-240, 269-270, 289-298, 319; Haberman 1978: 294-309; and Timm 1993. Fayvesh is also known as Phoebus. His Dutch name, under which he was registered in the Amsterdam printers’ guild, was Philips Levi.

2 Stern hailed from Frankfurt-on-Main, but was soon to move to Amsterdam.

3 On Athias’ English, Spanish, and Hebrew editions, see Haberman 1978: 294-300.

4 Fuks and Fuks-Mansfield 1987: 296-97.

5 Timm 1993:55. On the other hand, the haskama in favor of Fayvesh is far more perfunctory than that given to Athias and states simply that Fayvesh’s edition would be useful to men, women, children, and youths, without any differentiation between them. Nor, unlike the Athias haskama and, for that matter, those of the Amsterdam rabbis in favor of Fayveh, does the Council of Four Lands haskama for Fayvesh make any effort to justify awarding a haskama for a Yiddish language Bible. Those characteristics do raise some questions about the hakama’s authenticity.

6 Fuks and Fuks-Mansfield 1987: 297, 319.

7 By contrast, Athias’ previous two printings of the Bible in Hebrew with Latin introduction and annotations, which Athias marketed to Christian Hebraicists as well as Jews, were in print runs of 3,000 and 5,000 copies. Haberman 1978: 294-96; Fuks and Fuks-Mansfield 1987: 292.

8 Aptroot 1989: 28-43, 333-34.

9 Schmelzer 2006: 51.

10 Teller 2008: 355-56.

11 Bartal 2005:29.

12 See generally Hundert 2006:99-118.

13 Bartal 2005: 24-25.

14 Miller 2011:46-52.

15 Meyer 1997:101.

16 Lederhendler 1989: 47-48, 180 n. 50.

17 Max Seligson, “Wolf Heidenheim,” 6 The Jewish Encyclopedia 319 (1906); Temkin, Sefton D. "Heidenheim, Wolf." Encyclopaedia Judaica. Ed. Michael Berenbaum and Fred Skolnik. 2nd ed. Vol. 8. Detroit: Macmillan Reference USA, 2007. 763; Solomon Feffer, The Literary Contributions of Wolf Heidenheim (1757-1832), in Solomon Grayzel, 14 Jewish Book Annual 73 (New York 1956-1957).

18 Prayer books of all types made up about half of the production of Hebrew presses in Germany through the end of the eighteenth century. Mordechai Breuer & Michael Graetz at 226.

19 Joseph Jacobs & Schulim Ochser at 439; Sefton D. Temkin at 763.

20 This paragraph draws on Kohler 2012: 39; Meyer 1988: 32-33; Reif 1995: 263-64; and Temkin 2007: 763.

21 Dubno discontinued his work with Mendelssohn before Biur was completed, possibly under pressure from traditionalist friends. But Mendelssoh nevertheless gave high praise to Dubno’s work in his introduction to Biur. Levinger 2007:34. On Heidenheim’s relationship with Dubno, see Seligson 1906:319.

22 Sefton D. Temkin at 763.

23 On the westward migration of Polish Jews, see Shulvass 1971.

24 Meyer 1997: 92-95.

25 Max Seligson at 320; Mordechai Breuer & Michael Graetz at 226; Sefton D. Temkin at 763; Editor, “Roedelheim,” 17 Encyclopedia Judaica 366 (2007) (“The clear Roedelheim texts were still being reproduced more than a hundred years later.”).

26 Horowitz 2007: 540-41.

27 In 1800, some 3,000 Jews resided in Frankfurt am Main, making up 7.5 percent of the city’s population. Stefi 1997b:55.

28 On the maskilic celebration of German language prayer books, see Gries 2007: 140-44. In addition, Horowitz is named as the author of Gebet, a special prayer, in Hebrew with German translation, that was printed and pronounced in the Frankfurt synagogue in honor of the accession of Kaiser Leopold II, as Holy Roman Emperor, in 1790. Perhaps Horowitz associated the German translation of Hebrew prayer with that obsequious practice.

29 “Breslau, Aryeh Löb Ben Ḥayyim,” The Jewish Encyclopedia (1906).

30 No. 79

31 Horowitz 2007:545.

32 Wasserman 2007:145; Wistrich 1989:136-37.

33 In particular, Joseph Hraszansky, using a Frankfurt on the Main font, opened a Hebrew press in Vienna, and printed a number of foundation rabbinic texts, including an edition of the Babylonian Talmud between 1791 and 1797 and the Shulhan Arukh in 1810. See Lehman 2007:523.

34 Grunwald 1936: 248-49, 501 (listing some of Schmid’s many Hebrew publications).

35 We reprint the mark from Avraham Ya’ari, Diglei ha-Madpisim ha-Ivriyyim 97 (Jerusalem 1944).

36 Johns 2009:13; Kawohl 2008a; Whittman 2004.

37 Austrian Statutes on Censorship and Printing, Vienna (1781), in Primary Sources on Copyright.

38 Urkunden und Akten zur Geschichte der Juden in Wien: Erste Abteilung, Allgemeiner Teil 1526-1847 (1849) (Pribram, A.F., ed ) [Documents and Records of the History of the Jews in Vienna: First Section, General Part 1526-1847 (1849)] (Vienna and Leipzig: Wilhelm Braumüller 1918), at 172-73. WHO IS TRANSLATOR?

39 Id. at 173-74.

40 Our discussion of Mordekhai Banet draws on Miller 2010: 60-86; Ferziger 2008: --;

41 Miller 2011: 60.

42 See Katz 1998b: 215-30.

43 Weiss 1895: 36-37, quoted in Miller 2011: 80.

44 On Homberg, see Wistrich 1989: 17-18.

45 Miller 2011:72-76.

46 Banet might have been predisposed to seriously consider lending lend support to the Heidenheim appeal. Among his early mentors was the Hasidic master Shemu’el Shmelke Horovitz of Nikolsburg, Ẓvi Hirsh Horowitz’s uncle and Pinkhas Horowitz’s older brother.

47 Parshat Mordekhai 8.

48 The letter is reproduced in Milei D’Avot, pt. 1, Ḥoshen Mishpat, ¶ 3 (Ezekiel Menashe Horowitz 1924). Ziltz joined with Banet in granting a haskama for Noiat Beroma by Avraham Zvi Isserles in 1814. The haskama praises the author and encourages readers to buy the book. But it contains no reprinting ban.

49 Baschwitz had withdrawn from the partnership in 1806. Max Seligson, at 320.

50 Schmid’s 1816 reprint also features an approbation from Moses Muenz (or Mintz) Me-Brody (1750-1831), rabbi and head of the rabbinic court of Oban (Obuda, Hungary; also called Altofen). Muenz initially gave his approbation to a book, published in 1803, by the reformist rabbi, Aaron Chorin (1766-1844), that called for changes in liturgy and the elimination of halakhic precepts based on “irrational” customs. Under pressure from Banet and other traditionalists, Muenz withdrew his approbation, claiming that he had issued it without reading Chorin’s book, and convened a rabbinic court to rule on whether book should be burned and Chorin condemned. After the rabbinic court ruled against him, Chorin turned to an Austrian court, which ruled that Banet and other traditionalists behind the move against Chorin had to pay him damages. See Miller 2011: 68; Maron 2007: 601; Sofer, Responsa Hatam Sofer, Likkutim, No. 93 (containing letter from Muenz apologizing for his initial support for Chorin).

51 Dyhernfurth is now known as Brzeg Dolny. It is located in what is today southwestern Poland.

52 Aron Freimann, , at 30, 62; Mordechai Breuer & Michael Graetz, at 223-25; Editor, “Dyhernfurth,” 6 Encyclopedia Judaica 330 (1972).

53 Kempno, or “Kempen,” as it was sometimes called, is now the Polish city of Kepno.

54 Our account of the dispute is derived from letters that R. Akiva Eiger (1761–1837) addressed to Zalman Tarir, head of the rabbinic court of Frankfurt am Main, and to Wolf Heidenheim in an attempt to mediate a compromise agreement. See Eiger 1822: 60-61.

55 Kawohl, F. (2008) ‘Commentary on the reprinting provisions in the Prussian Statute Book (1794)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer.

56 Kawohl, F. (2008) ‘Commentary on copyright treaties between Prussia and several German states (1827)', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer.

57 Eiger 1822: 60-61.

58 Heidenheim’s mahzor was also reprinted by S. Arnstein & Soehne in Sulzbach (a town in Bavaria) in 1826.

59 Sefer She’a lot ve-Tshuvot Parshat Mordekhai, oshen Mishpat # 7 (Von Mendel Vider, Sziget 1889).

60 See Katz 1998b: 217-29.

61 Sefer atam Sofer, oshen Mishpat, # 41 (Könyvereskedése, Budapest, 1861). Of note, just over a year previously both Sofer and Banet had given approbations to an edition of the Seder Mo’ed (Order of the Festivals) of the Jerusalem Talmud printed in Vienna by Anton Schmid.

62 Sofer apparently referred to a collection of responsa and commentaries, entitled Beit Aryeh, authored by Aryeh Leibush Horowitz, of which the second section is entitled Oryan T’litai. Beit Aryeh was not published until 1834, more than a decade after Sofer’s request that Banet provide a haskama. But its Oryan T’litai section was apparently written much earlier. Beit Aryeh contains approbations from Sofer and three other rabbis, but not Banet, who died in 1829. Sofer’s undated approbation refers to the author’s “previous composition,” and another approbation, that of Eliezer Mintz is dated 23 Tevet 5588 (January 10, 1828) – some six years before the book was published, suggesting that the book was a long time in the making.

63 See Katz 1998b: 224 (describing a Sofer letter that was certainly not for public distribution, but which was posthumously published as one of his responsa), 404 (noting that Sofer never published a book in his life). Most of Banet’s writings remained unpublished during his lifetime as well. Visi 2012: 177.

64 Sofer No. 79. As was – and is – common in traditional rabbinic culture, Sofer refers to Horowitz by the title of the book that Horowitz authored for which he is known, Maḥane Levi.

65 Parshat Mordekhai, # 8.

66 Sefer atam Sofer, oshen Mishpat, # 79 (Könyvereskedése, Budapest, 1861).

67 Like Banet, Sofer embraced the study of certain secular subjects, including medicine and mathematics, as part of traditional rabbinic education because, in his view, those subjects were essential to understanding central halakhic problems. Katz 1998b: 433.

68 While Sofer regarded the obligatory conscription of Jewish boys into the Emperor’s army with great anxiety, particularly given the impossibility for a Jew to observe religious strictures while in Austrian military service, he ruled, in a responsum issued in 1830, that the military conscription law was within the king’s authority and that, accordingly, Jews were obligated to comply. Sofer No. 29. For discussion see Graff 1985: 67-68; Katz 1998b: 417. With regard to seeking the support of political powers, Banet persuaded the Archbishop of Olmütz to take a stand against Jewish reformers in Vienna, while Sofer appealed to imperial authorities to forbid Viennese Jews from transacting business on the Jewish Sabbath. Gruwald 1936: 374.

69 Sofer’s principle is often misinterpreted. It does not mean that the halakha may not be applied to new circumstances in unprecedented ways, but only that the halakha must be interpreted and applied in such cases by learned rabbinic scholars who are fully steeped in and faithful to the rabbinic tradition. For example, Sofer expressed the view that the revelation of the truth of the Torah continues through the generations rather than being handed down just once in final concrete form at Mt. Sinai and that learned rabbinic scholars of each generation will be directed to that truth by their deep immersion in Torah study even without being consciously aware of it. See Kahana 2007: 521-527 (describing the extended correspondence between Sofer and R. Ẓvi Hirsch Ḥiyot (1805-1855) on that topic).

70 Katz 1998b: 431-32.

71 Miller 2011: 67-68.

72 Gil Graff, at 52, 68, 110; Simon Schwarzfuchs, at 168-70; Jacob Katz, at 156-57.

73 Sofer, Ḥoshen Mishpat No. 142, discussed in Graff 1985: 52.

74 Sofer, Deroshot 1.113b, quoted in Katz 1998b: 437.

75 BT Bava Batra 21b.

76 Mishneh Torah, Book of Acquisition, Neighbors ch. 6, sec.8; Shulḥan Arukh, Ḥoshen Mishpat 156:5.

77 The word comes “from the Arabic meaning literally “a constant friend—in our context, a permanent business associate.” Tamari, Meir 1987, “With All Your Possessions”: Jewish Ethics and Economic Life (New York, London: Collier Macmillan), 117-18.

78 Jacob Katz, at 58; Editor, “Ma’arufya,” 13 Encyclopedia Judaica 307 (2007); Enforcement of a ma’arufia came through the ban. “It is possible that this usage originated in the privileges granted to merchants by the municipal councils of various European towns during the 10th and 11th centuries guaranteeing them trade monopolies.” Id. If so, the parallel is apparent to the Merchant Guild, which led to the herem ha-yishuv, discussed below.

79 The direct writings of the Aviasaf have been lost; we know of his ruling from reading later commentators who record his views. In this instance, Mordekhai ben Hillel, introduced immediately above, attributes this point of view to the Aviasaf.

80 Hagahot Maimoniot, Hilkhot Shekhaynim, pt. 6; Beit Yosef, oshen Mishpat, # 156; Darkhei Moshe (ad loc.). Evidently, this basket of privileges applies to those who live in an enclosed area, and hence can justifiably expect non-intrusion from outsiders.

81 The alleyways appear to differ based on certainty. In the case of the Open Alley, some customers are bound to still come to Reuven, whereas others might go to Shimon; but given that Reuven will remain closer to some passersby, he will not lose all the business. In the Dead End Alley, by contrast, all the customers must pass by Shimon’s new mill at the alleyway’s entrance in order to get to Reuven’s established mill at its far end; accordingly, Reuven stands to lose everything.

82 Note that the matter under discussion here is analytically separate from the case of The Dead End Alley. The current operative assumption is that all parties reside in The Open Alley. The task is to determine the bounds regulating that status.

83 Responsa Maharik, root A.

84 The Maharik cites the Mordekhai [a work authored by R. Mordecai ben Hillel (c. 1240-1298)], which in turn cites to Rabbeinu Tam [Jacob ben Meir, (1100 –1171)], for the proposition that rulers of a city levy taxes only with universal consent; then, it analogizes the rulers of a city to the leaders of the generation, and states that even they may not take something from Reuven and give to Shimon in contravention of Torah law. She’a lot U-tshuvot Maharik, root A.

85 See Responsa Rabbi Gershon Meor Ha-Golah [Gershom ben Judah, (c. 960 -1040? -1028?)], No.63; Responsa Maharam Me-Rotenberg [Meir ben Barukh of Rothenburg (c. 1220-1293)], No. 503 (presenting the position of R’ Joseph Tov Alem ben Samuel Bonfils (c. 980-1050)); Responsa Ha-Rif [Isaac ben Jacob Alfasi ha-Cohen (1013 - 1103)], No. 13; Responsa Ha-Rosh [Asher Ben Yehiel (1250 or 1259 – 1327)], Nos. 6-8; Responsa Ha-Rashba [Shlomo ben Aderet (1235–1310)], Part 3 No. 411, Part 5 No. 126.

86 Responsa Ha-Rivash, No. 271.

87 See Nissim ben Reuven (1320–1376; known in Jewish tradition as “Ran”), Responsa Ran, No. 48 (holding that one is obligated to follow the rulings of one’s local rabbi).

88 Up to 8o percent of Jews were engaged in occupations related to the liquor trade during the previous century, leading to a wealth of responsa on point from which Banet and Sofer could draw. “The Jewish innkeeper, distiller, or brewer became a characteristic figure in the region, so much so that the terms arendarz (leaseholder) and ‘Jew’ became synonymous.” Gershon David Hundert, Jews in Poland-Lithuania in the Eighteenth Century (U.C. Press, Berkeley, Los Angeles 2004), pp. 15, 53. For an extensive discussion of arendy (the plural in Polish), see M.J. Rosman, The Lords’ Jews 106-42 (Cambridge 1990) (underlining points that that arrendators could be either Jewish or Gentile—but the former were so common that the term was often used as a synonym for “Jew” and that a “large number of rabbinic responsa dealing with cases of arenda competition,” id. at 110, 121).

89 Antony Polonsky, The Jews in Poland and Russia, vol. I (2010), p.36; Jacob Goldberg, “Wine and Liquor Trade” 16 Encyclopedia Judaica 541, 542-43 (1972). Banet must have been fully versed in these aspects, as many Moravian Jews made their livelihood as arrendators, leasing distilleries, breweries, and taverns from the local landowners. See Miller at 34.

A common example offered in halakhic texts arises when a Jew receives a monopoly for the sale of brandy and then dies—the legal issue ripens whether such an intangible right can be devised to the decedent’s heirs, or whether instead the general halakhic rule is activated that an intangible right (davar she’ayn bo mamash) cannot be bequeathed. An arenda represents an exception to that general principle, as the aaronim made a special rule in this case that an arenda is considered equivalent to tangible money, and thus may be devised. Note that the arenda represented a widespread custom in Eastern Europe, in whose economic sphere Bohemia and Moravia at that time lay. See generally Jacob Katz, at 43-50.

90 Recall that, with Banet’s imprimatur, Schmid had purported to purchase rights in the Roedelheim maḥzor from Heidenheim’s partner, Baruch Baschwitz.

91 Sefer atam Sofer, elek oshen Mishpat, No. 41 (Könyvereskedése, Budapest, 1861).

92 The term that Sofer uses for such texts is “Sifrei Ha-Meiras.” It is not clear to what exactly that term refers. It might possibly reflect a lost author named “Meiras” (or “Mirus” as some alternatives read). But, more convincing is the contention that the sources from which that phrase derives (e.g., BT ulin 60b; Mishnah Yadayim 4:6) intended to refer to the Iliad and the Odyssey (taking the reference as a misspelling for Sifrei Homirus, i.e., the “Books of Homer”). See Moshe Carmilly-Weinberger, Censorship and Freedom of Expression in Jewish History (Yeshiva Univ, Press 1977), p.12. A third possibility is that the samekh at the end is a misreading for a final mem (which looks very similar), meaning it should read “books of love,” a code word for secular literature. See Avraham Shapir, Yasam shel hakhamim l’safa ul’sifrut ha-yavvanit bit’qufat ha-tana’im, (visited May 29, 2008). The sentiment would then accord with the condemnation came before Parliament in 1584 of “wanton discourse of love of all languages leud . . . ballads lying histories.” Cindia Susan Clegg, Press Censorship in Elizabethan England (Cambridge 1997), p 35.

93 For a recent treatment of false attribution in older Hebrew works, see Marvin J. Heller, Who Can Discern His Errors? Misdates, Errors, and Deceptions, in and about Hebrew Books, Intentional and Otherwise, 12 akirah 269 (2011).

94 See Menaḥem Elon, at 1462, 1464 (tracing early right of attribution, in nature of copyright, to Sifrei Deut. 188 and Tosef. Bava Kamma 7:13); Louis Jacobs, The Jewish Religion: A Companion (Oxford Univ. Press 1995).

95 Sofer advanced a similar argument in another context. In opposing the reformist Westphalian Consistory’s proclamation that legumes may be eaten on Passover, most traditionalist rabbis contented that the prohibition on eating legumes, which had been extended throughout Ashkenazic communities by medieval authorities, was binding as matter of local custom. However, Sofer strengthened the ban against eating legumes on Passover by claiming that the prohibition arose from an immutable and universally binding decree issued by early medieval rabbis. See Katz 1998b: 431.

96 Parshat Mordekhai, # 8.

97 See Mishnah Avot 4:5.

98 Banet brought an explicit proof for his viewpoint in the edict of Ezra the Scribe that peddlers of perfume cannot stop newcomers from encroaching on their sales territory, in order that their wares should remain accessible to the daughters of Israel. See Shulan Arukh, oshen Mishpat, ch. 156, § 6. The parallel is that both publishers of maḥẓorim and peddlers of perfume enable their purchasers to perform a mitzvah. See Artscroll Bava Basra, at 22a1 (offering explanation, “Ezra desired to promote family harmony by ensuring that women would have the means to make themselves attractive to their husbands”).

99 In that case, the second publisher does not depend on the activity of the first one in order to perform a mitzvah, meaning that “printing a book that has already existed for ages is more similar to peddlers” of perfume.

100 Sefer atam Sofer, oshen Mishpat, # 79 (Könyvereskedése, Budapest, 1861).

101 On Sofer’s continuing esteem for Pinḥas Horowitz, see Katz 1998b: 406-08.

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