From Maimonides to Microsoft: the Jewish Law of Copyright Since the Birth of Print by Neil Weinstock Netanel, with Notes by David Nimmer Oxford University Press, 2016 ISBN 9780195371994, hard cover, 336 pp. Price: £65.00

Review by Michael Factor Republished from the Oxford Journal of Intellectual Property Law and Practice

This book is an academic treatise that looks at rabbinical rulings relating to book publishing from the dawn of printing to modern times. It includes a thorough introduction that provides an in-depth overview of the halachic process, one of the best short essays on the topic that I have seen in English or Hebrew.

The book publishing industry received special attention by the rabbis as it involved major investment, whereas reprinting was considerably cheaper. This state of affairs resulted in many publishers going bankrupt; the free-market forces that are generally favoured in Jewish law proved expensive and wasteful. In addition to regulating the industry so as to ensure propagation and distribution of books on Jewish scholarship, rabbinic control of the book industry was also a means of preventing the dissemination of heretical ideas.

In general, Jewish law does not consider intangible resources as property per se. However, creative interpretation of Talmudic sources referring to unjust competition gave a legal precedent for quasi-property rights for intangibles that were recognized by some rabbinical authorities. Others simply saw rabbinical intervention as a short-term means of preventing market failure. Because books printed in Venice reached an international Jewish market, tools that had hitherto been applied to regulating local communities were extended to regulating the international market by some rabbis, even while this practice was condemned by others.

Netanel explains how early printing in Italy required papal consent, and the publisher was required to be Christian. Some, like the Calvinist Daniel Bomberg, whose 16th-century pagination of the Talmud is the reference system universally used by Jewish scholars to this day, refused to allow papal intervention or censorship. Nevertheless, the Jewish community desired the Jewish book trade to be free of Christian interference.

When the MaHaRam of Padwa (Rabbi Katzenellenbogen) edited a scholarly edition of Maimonides’ Mishneh Torah, the first thematic codification of the Jewish law, and invested personal funds in its publication in 1550, a competing publisher, called Giustiniani, brought out his version at the same time, and offered to sell it for one gold piece less than the Padwa edition. Since the main market for these relatively expensive sets of books was the study houses and rabbis of the large Jewish community of Poland and the surrounding countries, the MaHaRam of Padwa appealed to the Polish Rabbi Moshe Isserles (1520–1572) to support him against this predatory pricing tactic. Rabbi Isserles published a responsum that banned God-fearing Jews from purchasing the competing edition, using various creative arguments that essentially obliged the Jewish public to help prevent Giustiniani from transgressing his Biblical obligation under the Noahide laws to respect the institutions of courts and property. The result of Isserles’ efforts, and Giustiani’s complaints against it, was a papal inquisition which resulted in the burning of both manuscripts and printed copies of the Talmud and in them being banned in Italy. This eventually resulted in the moving of the Jewish book publishing industry to Protestant, and more tolerant, Amsterdam. Although politically, Rabbi Iserles’ ruling backfired, it nevertheless became a cornerstone of Jewish legislation.

In general, rabbinical bans were for short periods, typically 10 to 20 years, and were designed to ensure that the publisher could sell the first print run, thus having the opportunity to recoup his investment and make a fair profit. Where the print run sold out earlier, the ban against competing editions was often rescinded. Thus the rabbis generally did not recognize authors’ rights of remuneration and did not busy themselves with philosophical questions of the nature of copyright under natural law; rather, they tried to regulate the industry to promote the availability of Jewish study texts. (There is a much older obligation of correct attribution that is arguably akin to the Author's moral right of attribution (Ethics of the Fathers 6:6) and which finds implicit support from the Bible (Esther 2:22, Jeremiah 23:30).)

Netanel’s book looks at 18th-century battles between Hassidic and non-Hassidic scholars, with each camp backing rival publishing houses in attempts to control the Talmud publishing industry. The book also discusses later rulings from the 19th century, when Jewish autonomy in Eastern Europe came to an end and state legislation banning the import of books across state borders, aimed to encourage the local publishing industry, created a shortage of Jewish festival prayer books; this in turn gave rise to a situation where printers in other states were allowed to publish competing editions in order to ensure adequate supply. A fascinating about-turn from Rabbi Joseph Saul Nathanson (1808–1875), the Rabbi of Lemberg who authored the Sho’el uMeshiv responsa, is discussed. The views of other rabbis, including Rabbi Yitzhak Shmelkes (the Bet Yitzchak 1828–1906) and Rabbi Moses Sofer (the Chatam Sofer1762–1839) are compared and contrasted.

In the 1990s, software piracy was rampant in Israel, which had the dubious distinction of being referred to as a one-disk State. In addition to fighting copyright suits in secular courts, Microsoft approached a rabbinical court in Bnei Brak for a court decree preventing software copying. Such a ruling was eventually issued, but, in line with rabbinical tradition, it was limited to forbidding commercial copying.

In practice, most rabbinical authorities see modern copyright as binding since it is the law of the land: despite not being a concept developed from Jewish sources per se, the secular regime is still obligatory. Some ultra-Orthodox Jews download films for personal viewing and make copies of music albums for personal consumption, arguing that Jewish law does not forbid it, but these copyright infringements are no more prevalent in the religious sector than in other sectors of the Israeli society. Rabbis generally do not consider such actions as theft. Nor do IP scholars. However, the creative industries do use this argument.

One refreshing aspect of the book is that the author does not personally espouse the cause of any specific level of Jewish observance. He is highly respectful of the sources, but not to the extent of failing to point out inconsistencies, misconceptions and negative ramifications of religious rulings.

This well-written and enjoyable book shows an impressive familiarity with classical Jewish texts, rabbinic responsa, secular copyright law, European and Jewish history and the development of the printing industry.

The author devotes less attention to the discussions of modern rabbinical views. The book is heavily influenced by Nahum Rakover’s book on Copyright in Jewish Law (1970), Jewish Legal Heritage Society, Jerusalem. Rabbi Rakover researched Jewish Law for Israel’s Ministry of Justice. However, subsequent religious academic scholarship, such as the work of Michael Vagoda and a number of Israeli doctoral students, some of whom now lecture in various Israeli law schools, is not discussed.

Greater emphasis could also be placed on how the printing revolution changed Jewish law. It was thanks to the invention of the printing press that Rabbi Yosef Karo’s (1488–1575) Shulhan Arukh, a seminal code of Jewish law, was first published in Venice in 1565. Instead of publishing a separate Ashkenazic code, Rabbi Moshe Isserles added glosses reporting on Central and Eastern European practices. The combined work became the standard reference on Jewish law. It in turn standardized Jewish law and, to some extent, caused an ossification that was not necessarily beneficial to the subsequent development of Jewish law and its ability to adapt to changing circumstances.

As a work of historical scholarship (and probably since it was written by someone whose standpoint did not require a commitment to halachic authority), Netanel’s book does not look at how rabbinical ideas on market regulation, in general, and intellectual property and the printing industry, in particular, could usefully be applied to contemporary market failures.

Contemporary Israel has an active, but limited book market. Despite a population of only a little over 8.52 million, some 4,200 new titles are published each year and 35 million books are sold annually, of which 40 per cent are translations of foreign works. However, there are very few independent bookshops and recent publications are frequently subjected to special offers or otherwise discounted, preventing authors and translators from realistically being able to make a living. A legislative attempt to regulate the Israeli book industry by lex specialis was made with the Law to Protect Literature and Authors 2013,1 which was tried out and revisited after a couple of years.2 The market failure of the Israeli book industry could usefully relate to rabbinical rulings which reflect nearly half a millennium of attempting similar interference with free market forces.

That said, all books have to have an agenda and must begin and end somewhere. This book reviews 500 years of rabbinical rulings on copyright-related issues and does so in a well-written, thorough and scholarly manner.