Four Short and Concise Discussions Regarding Copyright In The Eyes Of Halacha / Jewish Law

 

First Published In Ami Magazine

 

Rabbi Moshe T

     By: Rabbi Moshe Taub

 

 

“Steal This Article”

Copyrighting in Halachah

Part 1

 

The halachos of copyright begin with England’s current Prime Minister, David Cameron, something we will return at the close of this column.

 

The lack of clarity on the subject of copyrighting in halachah became obvious to me one day in shul. “What are you listening to?” I asked a bachur in the beis midresh one day.

Showing me his device, he demonstrated to me that virtually every song by every major Jewish singer in the past 30 years was contained on an object about the size of a credit card.

I wondered, “How long did it take you to put this together, and at what cost?”

He laughed. “I copied them straight from a friend’s device,” he explained nonchalantly.

 

 

This has become a common practice. One person uploads from his own CD collection, say, all of his Mordechai Ben David albums. So far so good (according to almost all poskim). He then passes them on to a friend. The friend adds his own favorite tracks and passes them on, until this young man in the beis midrash possessed—for free!—the entire repository of Jewish music, no doubt valued in the thousands of dollars.

Is this practice halachically sanctioned?

 

 

The challenge for rabbanim in seeking to convince the masses of this problem—which has only grown with the widespread use of the Internet—boils down to this: “Burning” music does not feel like theft. No one is pulling a mask over his face and holding up Eichler’s, chalilah. All he is doing is pressing a button.

“How bad could it be?” he may think to himself.

 

On the other hand, the more informed reader may be wondering the other way: 'Why all the controversy surrounding this issue? Is this not obviously theft?"

 

While we will show that it can indeed be theft, or that it falls into other categories of issurim, it is by no means a simple matter.

 

The writers of the United States Constitution (1:8), l’havdil, were very careful in choosing their words when it came to this matter: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Beginning in 1978, copyright law became a federal statute that the states could only slightly augment if they wished.

 

While the United States has every right to create its own set of laws—and indeed thereby fulfill one of the Sheva Mitzvos Bnei Noach—poskim cannot arbitrarily create laws. Short of a new takanah, they can’t decide on their own what is considered right and wrong; they must find a precedent in halachah, sources and/or comparisons, in order to say that something is forbidden.

 

Until the 1500s, issues such as copyrighting were not relevant for obvious reasons. Before the printing press, although one could steal an actual item—say, a book—there was no way to reproduce it except to copy it by hand. With the invention of the printing press, it suddenly became possible for someone to rip off years of hard work by selling the exact same product, with none of the time and hard work invested. Today, we all have a veritable printing press at our disposal.

 

Still, you may be wondering, wouldn’t that be a clear case of theft too?

 

Well, consider this: If one purchases a CD, a tangible item fairly, how could anything he does with it be considered stealing? True, a great deal of work went into composing and recording the songs, which indeed gives it its value and is the very reason the person purchased it in the first place. But once the CD is sold, doesn’t the purchaser retain the full right to do with it as he pleases?

 

The underlying question is this: While a person can sell an idea or a concept, does he actually own it? And if so, does he retain it even after selling a tangible item that contains that idea?

 

Rav Nathenson, the great gaon and rav of Lemberg, deals with this type of justification in his Shu”t Shoel U’meishiv. A case was brought to him by Person A, who expended great effort to compile a new edition of the Shulchan Aruch, adding commentaries like the Pischei Teshuvah to the page. Then another person bought this new Shulchan Aruch—and started publishing it himself.

 

Seeking to defend his actions, Person B explained to the Shoel U’meishiv that when he purchased these volumes, he purchased a tangible item, with which he then had the right to do whatever he wished…even copying them for sale!

 

He further argued that whereas the original publisher had only printed small editions of his work, he, Person B, printed large volumes. Now, most people had large editions of the Shulchan Aruch in any case and were not about to buy a second set just for the added commentaries. Therefore, he argued, Person A had suffered no proven loss. (Oy, everybody turns into a groisse lamdan when defending themselves!)

 

Rav Nathenson was less than impressed. He states that a work’s original author maintains full rights over his original ideas or work even after the sale of that item. To treat his work otherwise would be at minimum hasagas gvul (encroachment). At most, the original author maintains ownership to the extent that he need not even claim damages in order to stop another from using his concept, just as I could tell someone not to use my jacket even though I can’t prove that he may damage it in the future.

 

Rav Nathenson goes on to explain that even though we find some sefarim limiting their own rights for ten or 20 years, this is not due to the halachah sanctioning “theft” after a particular date. It is because the author of such a work has decided voluntarily to forgo his rights so that his work will live on after he has earned his money back. He has chosen limited ownership in order to make sure his work will continue to be published after his death. If he held on to his rights indefinitely, who would publish his sefarim again, especially if he did not have children who were interested in undertaking the project?

 

This logic that Rav Nathenson brings to the decisions of past rabbanim in choosing to allow their works to be copied at some future point is bolstered by a recent article in the New Yorker (October 24; ‘Are Copyright Laws Too Strict'). The there inform us that nowadays many secular books and songs have languished, never to be reissued due to the fact that no one can figure out who the heirs are to these works. Fearing lawsuits, publishing houses dare not risk reintroducing these sometimes-celebrated works to the public. Our chachamim, as Rav Nathenson explained, had the foresight to solve this problem by limiting copyright by 'X' number od years.

 

The Chofetz Chaim’s wife, Rebbetzin Freida Kagan, wrote in her Yiddish introduction to her husband sefer Ahavas Chesed that even after his death, only she and the family would retain the right to publish his sefarim in any country. (It should be noted that the Chofetz Chaim did state in his tzavaah that the Mishnah Berurah could be published by others if they followed certain conditions, but this allowance seems to have been unique to that work; see Rav Weifish’s Mishnas Zechuyos Hayotzer.)

 

The Shoel U’Meishiv is far from the only person to discuss this issue. Many have tackled this subject as it has always been a matter of controversy.

 

It is likely that the practice of giving a haskamah (rabbinical approbation) to a sefer, which began in the fifteenth century, arose due to the fact that rival publishing houses often put out a first edition of a sefer only to reprint it and sell it themselves. (Others point out that the use of haskamos became a widespread practice because—due again to the printing press—it was now easy for anyone, even the unworthy, to publish works.)

 

Some assert that the first time the word “haskamah” was used in the context of copyright protection was around 1600, a few decades after the death of Harav Yosef Karo, in a letter written by rabbanim on his posthumously published Bedek Habayis. In the letter, they forbade others to publish his works.

 

 However, the first known copyright warning– then titled as a “ksav das” - on a sefer that expressly placed a cherem on any individual who unfairly reproduced it came some 80 years earlier to a sefer written by Rav Eliyahu Bachur for his dikduk trilogy. Signed by three rabbanim, it declares a “cherem against one who extends his hand into the expenditures and hard work of his fellow man…”

 

And in case the reader thinks I have forgotten the opening line of this column - David Cameron is the great, great, great grandson of Rav Bachur.

 

All this is just the tip of the iceberg.

 

To be continued…

 

 

 

 

Copyright in Halachah, Part 2

Confounding-ly Confusing Copyright Conundrums

 

 

The halachos of copyrighting begin with Bill Gates, something that we will return to at the close of this column.

 

One of the most important works on the Gemara written in the past century was the Kehillas Yaakov, authored by the Steipler Gaon, zt”l. So clear were his methods of questioning and answering and so enjoyable his approach that some people used his work to prepare shiurim—not always making proper attribution.

 

A close talmid of the Steipler Gaon (d.1988) was visiting another city when he heard a local maggid shiur deliver a wonderful shiur on a certain Talmudic passage. Everyone marveled at this maggid shiur’s brilliance. Well, everyone except this student, who knew that every word had been taken directly from the Steipler’s work. The student was incensed. How could someone blatantly steal and use the Torah insights of others?

 

The student approached the Steipler and told him what he had heard. The Steipler smiled and said, “I don’t mind if he takes what I write and says it in his name, so long as he doesn’t take what he writes and say it in my name!”

 

When we began the subject of copyrighting in halachah in the last article, I mentioned that Chazal do not openly discuss the issue. However, when it comes to the discussion of Torah ideas, we have a braisa at the end of Pirkei Avos1 that urges us to state Torah thoughts in the name of the originator.

 

While the Tosefta2 seems to allow the surreptitious discovery, e.g. hiding behind someone who speaking privately in learning, of another’s Torah thoughts and ideas for the benefit of the multitude, it never sanctioned false attribution.3 Nevertheless, many poskim argue that when it comes to the copyrighting of divrei Torah, we must take a more lenient approach.

 

For instance, the Chasam Sofer,4 who generally took a strong position on copyrighting, argues that since one mustn’t charge for a mitzvah, once one has recouped his original investment for the publication of his Torah thoughts, he should not be strict about enforcing his proprietary rights. As the Gemara notes, “Just as I was taught the Torah for free, so shall you teach it for free.”5

 

This is a great illustration of just how confusing this issue can be. For while the Chasam Sofer was generally strict about copyrighting—due either to a special takanah or to encroachment—he was quite lenient about the use of original Torah material (while not falsely attributing it, of course).

 

At the opposite end, the Beis Yitzchak, the Netziv and others were more hesitant when it came to establishing guidelines for copyrighting in halachah; yet, their understanding of the treatment of spiritual material such as chiddushei Torah was more stringent, as they felt those should have special protection.6

 

The general concept of copyrighting in halachah is no less confounding; with various works once again offering opposing views. One of the outstanding works on this topic is a sefer titled Mishnas Zechuyos Hayotzer (“The Laws of Intellectual Property Rights”) by Rav Nachum MenashaWeifish, who urges a strict policy on copyrighting. Then there is another work, playfully titled Lo Kol Hazechuyos Shemuros (“All Rights Not Reserved”), which presents a more lenient position. In fact, in a fitting tribute to the latter author’s views, I found his entire sefer online for free!

 

The confusion doesn’t stop there. Even the classic modern-day works on Choshen Mishpat (monetary law) have different takes on this subject—for example, Pischei Hachoshen (Vol. 5, ch. 9) and Emek Hamishpat (Vol. 4).

 

Rashi7 tells us that there is virtually no topic in halachah without machlokes, and the issue of copyrighting is a classic example of this truth. As we explained last week, until the invention of the printing press, copyright issues were apparently not discussed, either in the Gemara or in the Rishonim. The creation of the printing press opened the door for the many halachic opinions, suggestions and proofs that followed.

 

Secular law had a similar struggle. It was not until 1710 that England issued what is known as the Statute of Anne, the first official governmental copyright law. Until that time there were only agreements made between publishers, a laissez-faire free-market solution to the problem.

 

While even some poskim found the free-market solution a viable one,8 in the case of England, the policy protected publishers at the expense of authors. It was for this reason that the English Parliament intervened.

 

All this makes copyrighting, and copyright infringement, a most interesting historical study, where we can actually follow the development of secular law along with, l’havdil, halachah. For example, right now there is a debate developing in both the secular legal world and the halachic world regarding digital and Internet copyright.

 

In fact, using the term “l’havdil” may be inapt in this instance, for, as we shall see, many poskim9 argue that there is no concept of copyrighting and intellectual property in halachah and that the only avenue of enforcement available from a halachic perspective is dina d’malchusa dina, the principle that we follow the law of the land. This means, in effect, that England’s 1710 Statute of Anne and America’s Copyright Act of 1976 would both be seen too as quasi halachic developments, or at least laws that have had an impact on halachah.

 

This concept is not lost on frum lawyers who have a vested interest in this topic from the perspectives of both secular law and halachah. The journal Intellectual Property Quarterly (Issue 1, 2011) had a wonderful article by Daniel Unger titled “Copyright Enforcement by Praise and Curse: The Colourful Development of Jewish Intellectual Property.” And the bi-annual Theoretical Inquiries in Law published a fascinating discussion of this topic, “Is Copyright Property? The Debate in Jewish Law,” by Neil W. Netanel and David Nimmer. The authors reference a forthcoming book about the history of copyright in halachah, whose working title is 'From Maimonides to Microsoft'.

 

Microsoft?!

 

Not too long ago Microsoft petitioned a beis din in Bnei Brak, requesting a ruling on how halachah views copyrighting. The information was needed for a case before an Israeli court; Israel presently enforces copyright laws based on an amalgam of British and American laws.

 

Why did Bill Gates’ company care what a beis din had to say, and why is this matter at the crux of copyrighting in halachah? The answer will have to wait until next week, when we will go back to the sixteenth and nineteenth centuries and recount two fascinating stories that helped form copyright halachah today: the printing of the Maharam Padua’s Rambam, and Slavuta Shas v. Vilna Shas. By the end of this series we will return to the Microsoft case.

 

NOTES

  1. The sixth chapter of Pirkei Avos is not part of the masechta proper but is a later addition taken from chapter 6 of Kallah and chapter 17 of Tanna d’Bei Eliyahu.

  2. Bava Kama, ch. 7.

  3. Rabbi Bleich, Contemporary Halachic Problems vol. II, p. 122.

  4. Shu”t choshen mishpat 79.

  5. Bechoros 29.

  6. See Emek Hamishpat, Vol. 4, simanim 17-23.

  7.  Shabbos 139b.

  8. See Parshas Mordechai and Bava Basra 22; cf. Chasam Sofer, who rejects the idea that the invisible hand of the market will solve the issue of copyrighting.

  9. The Netziv, Beis Yitzchak, Rav Mordechai Benet in various haskamos and in his Parashas Mordechai.

 

 

 

 

 

 

 

 

Three Stories

Copyright in Halachah, Part 3

 

The halachos of copyrighting begin with a Christian man named Marc Antonio Giustiniani, something that we will return to later in this column.

 

Before we get into that story, it would be helpful to take a chronological look at how copyrighting has been dealt with through the ages.

 

I. The Gemara

 

Many seek to prove that copyright protection exists naturally and implicitly within halachah based on preexisting halachic categories into which it fits, like gezel or hasagas gevul.1 Yet all point out that an explicit case of copyrighting per se is not discussed anywhere in Chazal.

 

To my mind, however, there is one incident that comes awfully close. The Gemara in Yoma 84 tells us of a disease that strikes one in the teeth and ends, sometimes fatally, in the stomach.2 Rav Yochanan was struck with this malady and went to a non-Jewish noblewoman who knew how to effect a cure. After paying for and receiving her tonic one Erev Shabbos, he asked her for the ingredients so that he could make it on Shabbos himself. She explained that she would not reveal this information because she would risk losing business if the secret became known to others. Rav Yochanan swore that he would safeguard the secret, and so she consented and revealed it to him.

 

Rav Yochanan then explained to her (for reasons we will not go into here) why he was not bound by his vow, and he immediately announced the formula for this secret concoction to his entire yeshivah.

 

Now, as it relates to copyright infringement (if it exists), it is worthwhile to consider that while the Gemara here, and in the Yerushalmi version, questions Rav Yochanan’s course of action in terms of his apparent false oath, it never mentions the fact that he stole, meaning that he stole the income this woman would have earned had her secret not been revealed money—which is essentially a violation of copyright!

 

While in modern parlance this was a (possibly permissible?) breach of “trade secret” protection and not a breach of copyright,6 in terms of a halachic basis they both share the same root (this may be true in secular law as well; see Duke Law Review, 'Protecting Trade Secrets Through Copyright').

 

The Gemara’s silence on this issue3 may support the many poskim who contend that halachah does not recognize copyright law In fact, the Yerushalmi4 suggests that the noblewoman was so inspired by what Rav Yochanan did with her secret formula and converted!

 

Now, one may say that little can be proven by this episode as far as copyrighting is concerned because, in the first place, a life was at risk; and in the second place, we are seeking a source for copyright guidelines between Jews, and this case involved Rav Yochanan, who was bound by halachah, and a noblewoman who was bound by other laws. Perhaps copyrighting, should it exist in halachah, would not affect our dealings with gentiles, in which case secular law would be the binding force.

Both of these points, however, are easily refuted. As for the first, the Shulchan Aruch5 rules that while one may steal to save a life, he must have in mind that he is obligated to pay the person back at a later time. Once again, in our gemara, while Rav Yochanan’s action is challenged for other reasons, the fact that he stole proprietary information, as well as the noblewoman’s future potential business—if indeed a halachic concern—was ignored!

 

As for the second point, if violating a copyright is, as some say, gezel,7 then why would the fact that this woman was not Jewish make any difference? Halachah is clear that stealing from a non-Jew is forbidden.8

 

II. Rav Yitzchak Alfasi (Rif)

 

The early rishon Rav Yitzchak Alfasi (d. 1033) tells the story of a man who stole his friend’s Torah notes, assuring him that he would return them as soon as he copied all of them!9 This sh’eilah is often cited as the first teshuvah relating to copyright law. While the Rif sides with the writer of the notes, there are any number of reasons to see this teshuvah as outside the purview of copyright.

As noted in Part 1, stealing a CD is different from copying one that one already owns. In this case, Person B actually stole a notebook belonging to Person A.

 

In addition, Rav Moshe Feinstein10 posits that when it comes to words of Torah, one has the right to say that his words—in this case notes—were not meant for public consumption since they might contain errors, or that they were meant for a particular audience. Rav Moshe himself did not allow his teshuvos to be translated out of concern that they would become accessible to those who would misinterpret them.

 

III. The Maharam Padua, Alvise Bragadini and Marc Antonio Giustiniani

 

Rav Meir ben Isaac Katzenellenbogen (d. 1565), known as the Maharam Padua, was one of the geonim of his time. Seeking to take advantage of the newly invented printing press, he decided to publish a new edition of the Rambam’s Yad Hachazakah that would include, among other additions, his own notes.

 

Most of the major publishers at that time were Christians11 who had served the Jews well with their publishing houses. Initially, the Maharam wanted the major publishing house of Marc Antonio Giustiniani to put out his Rambam. Before a deal was finalized, the Maharam decided that another non-Jewish publishing house, that of Alvise Bragadini, offered a better deal.

 

Giustiniani was none too pleased and responded by publishing his own edition of the Rambam, at a cheaper price…including the Maharam’s commentary!

 

Rav Moshe Isserles, the Rama, was asked to decide the case.12 In a much-celebrated teshuvah that discusses issues ranging from the relationship between the prohibition against stealing as one of the sheva mitzvos Bnei Noach’s and its prohibition in halachah, as well as halachic rulings that may result in animosity toward the Jewish nation, the Rama sides with the Maharam. He explains that even as a non-Jew, Giustiniani violated halachic fair business practices.

 

The suggestion that, say, hasagas gevul can be applied to non-Jews was challenged by the Rama’s contemporary the Maharshal.13

Eventually this famous protest of the Maharam led to the proliferation of haskamos and cheramim found in many sefarim that were published over the next few hundred years. Indeed, the Maharam led the charge for these haskamos, although it is unclear if this was before or after his Rambam went to print.

 

But all of the above pales in comparison to the painful battle over copyrighting that was to come—the nineteenth-century dispute over halachic copyright, a mêlée that hit the frum world like a storm.

 

Alas, this is a story that will have to wait until the next article.

 

 To be continued…

 

NOTES

  1. Chasam Sofer, Rav Zalman Nechemia Goldberg in Techumin Vol. 6, Noda B’Yehudah, et al.

  2. See Shulchan Aruch, Orach Chaim, siman 328.

  3. A common tool among poskim in deciding halachah; see, for example, Igros Moshe, Chosen Mishpat 2:66.

  4. Shabbos, Shemoneh Sheratzim.

  5. (Siman 359.

  6. As pointed out to me by Professor Nimmer of UCLA.

  7. See Igros Moshe 4:44:19, end.

  8. See Bava Kama 113.

  9. In his Shu”t HaRif, 133.

  10.  Ibid.

  11.  See my feature on the history of the chapter divisions in the Torah in Ami’s Shavuos 5774 issue.

  12.  shu”t Rama, siman 10.

  13.  Shu”t 36.                                        

 

 

 

 

 

Copyright In Halacha Part 4

Slavuta Shas v. Vilna Shas

 

 

 

The halachos of copyright begin with the battles of the chassidim and the misnagdim, something that we shall return to momentarily.

 

It is now time for us to conclude the subject of copyrighting in halachah. But first, a brief recap of some of the important material we have covered thus far.

 

While the Torah forbids stealing as well as certain business practices deemed to be unfair, once a buyer purchases something, he retains full ownership. This means that he can, for example, lend his purchased sefer to a friend although the friend never paid any money to the author.

 

This all seemed simple enough, however after the invention of the printing press it suddenly became possible to copy and mass-produce a purchased sefer in a matter of days, apparently depriving the original author or publisher of untold profits.

 

Does one really have the right to do anything he wishes with an item once he has purchased it? Does halachah recognize copyright law?

In the previous articles we gave background on some of the famous cases surrounding this issue, as well as some of the sources marshalled to address it. We also discussed how the secular world is dealing with these same issues.

 

One result of this problem was the practice of giving a haskamah, or rabbinic approbation, for a sefer, which served, among other purposes, to defend the copyright of the author.

 

In this article we will turn to one of the more famous copyright battles, and we will also revisit the story of Microsoft asking a beis din in Bnei Brak for a ruling on how the Torah sees copyright law.

 

By the turn of the nineteenth century, the Talmud had been printed several times since the early Bamburg edition, largely unchanged. Most of the changes that were made from one edition to the next had to do with comparative texts, commentaries and censorship. For example, many were so fearful of arousing the ire of non-Jewish censors that in some editions, every occurrence of the word “goy” (gentile) or “min” (“nonbeliever”) was changed to “akum”—an acronym for “ovdei kochavim u’mazalos.” This term seemed far less likely to offend our neighbors because it referred to pagan beliefs and worship of the stars, which the gentiles of that time and ours did not practice.

 

Remarkably, however, even the term “akum” was not a perfect shield; some Christians believed it stood for “ovdei Yushke u’Miriam” [Mary]!

 

Some censorship efforts led to bizarre readings. For instance, the word “min,” in addition to meaning “nonbeliever,” can also mean “type” or “species.” It has been reported that some editions of Shas1 were so imprudent about censorship guidelines that they would change “min kitniyos” (meaning “a type of legume”) to “akum kitniyos”! And sometimes entire sections of the Gemara were removed so as not to offend, some still missing from modern popular editions of Shas.2

 

At that time, it was forbidden even to own a Talmud in many cities, and when Rav Yonasan Eibishitz received permission to print one, he could not use the title “Gemara” or “Talmud.” Tractate Brachos, for example, was titled Hilchos Brachos. In Akiva Aaronson’s excellent 'People of the Book' (Feldheim), he states that Rav Eibishitz received this permission in 1734, while he was in Prague. We should point out, however, that he did not arrive in Prague until some 20 years later. Indeed, 1734 was the year Rav Eibishitz, then 21 years old, assumed his first role as dayan in Brody, some 500 miles west of Prague. Most likely it was some time later when this edition was published.

 

Because of these difficulties in printing newer editions of Shas, there was widespread excitement when the Slavuta publishing house began printing its new editions of Gemara between 1801 and 1817. Although the Slavuta edition was not immune to some strange editorial decisions, the finished prodcut as well as the work that went into it was impressive.

 

The Slavuta publishing house was founded by the son of the holy Rav Pinchos of Koritz, who was a student of the Baal Shem Tov. His son, Reb Moshe Shapiro, along with his two children, Reb Shmuel and Reb Pinchos, built up a well-respected establishment that published many holy works to great acclaim. However, nothing they worked on was as daunting as printing the entire Shas.

Because of this, in addition to receiving blessings from some of the great Rebbes, such as the Baal HaTanya and Rav Levi Yitzchak of Berdicthuv, Slavuta also received haskamos that gave it a 25-year copyright protection. This meant that no one could print a newer edition of Shas until the Slavuta Shas had been on the market for 25 years. This was not simply a copyright on the work of Slavuta itself but covered anyone seeking to publish a full Talmud of his own.

 

So holy were these publishers that it is said they would dip their tools and the printing press in the mikvah before using them to publish pages of the Talmud!

 

But soon this printing, and the rival edition to follow, would reignite the battle between some chasidim and misnagdim, a battle that had at this point in Jewish history largely faded. The new machlokes not only reawakened old conflicts but, as we shall see, served as perhaps the most important catalyst for teshuvos and opinions on copyrighting in halachah, drawing the attention of the greatest poskim of the generation.

 

In 1835, a few years before the Slavuta copyright would officially end, the Romm Publishing House (later, Romm Widow and Sons Publishing), headed by Reb Menachem Mann Romm, began printing its own edition of the Talmud in Vilna, which is known to this day as the Vilna Shas. It had even more improvements than the Slavuta Shas—for example, on the pages of the Rif—and began selling fast.

 

The Shapiros pointed out to the major poskim of the day that the Slavuta Shas was still protected by its 25-year copyright and that the Romm brothers had no right to publish a competing edition. Scores of teshuvos were written on this issue, which caused great rifts in the community.

 

The teshuvos discuss matters such as copyrighting and the right to prevent a publisher from working independently on similar material (Romm, after all, had not copied the Slavuta Shas). One of the Romm brothers’ arguments was that the Slavuta’s 25-year ban was intended only to protect its own first edition, which had already sold out; it was now 1835, and the Slavuta Shas was already in its third printing.

 

While the Chasam Sofer and others defended the Romms, it was only after Rav Akiva Eiger agreed that they had the right to publish their own edition of Shas that the initial machlokes was laid to rest.

 

Sadly, however, bitterness ensued. The Slavuta publishing house came to a tragic end, and the Vilna Shas, which became the more popular one, is still the standard edition used today, even among chasidim.

 

And far from this public feud solving the complexities of copyright law, the halachik issue only became more ambiguous. Notably, the Chasam Sofer (Shu’t 57 and 79, etc.) and Rav Mordechai Benet (d. 1830, Parashas Mordechai 7, 8) were strongly divided on the issue.

 

Rav Benet rejected the theory that certain copyright infringements are in violation of hasagas gvul. He further argued regarding how far copyright protection, if it exists at all, should extend. Rav Benet advocated for a laissez-faire system, such as Ezra Hasofer’s allowance of free trade among merchants (Bava Basra 22), which would allow publishers to work out this issue among themselves. The Chasam Sofer (depending on which of his teshuvos on this issue one reads –compare his teshuvos regarding the Vilna Shas to those regarding the Wolf Heidenheim siddurim; see Daniel Unger in ‘Intellectual Property Quarterly’), is much stricter, arguing that without some type of official protection, no one would invest the time and effort to publish sefarim (or, for that matter, musical albums).

 

Several years ago Microsoft wanted to put out Pashkivillim [(posters, often glued to the walls , and found most frequently today in charedi neighborhoods in Israel) forbidding the copying of its computer programs for free, thinking that this would stop what it believed to be mass infringement of its copyright protection among chareidim. The company turned to a beis din in Bnei Brak seeking the Torah view on copyrighting.

 

Amazingly, the beis din stated that until Microsoft showed that it represented Jewish interests, it would not issue a ruling. Steve Ballmer, the CEO of Microsoft until 2014, and a Jew, was therefore named the disputant so that the beis din would hear the case! It is my understanding that the beis din did not respond as strongly on the matter as Microsoft had hoped. (See the forthcoming work, 'From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print', Netanel/Nimmer, Oxford Press)

 

This series has been intended only to inform the reader, it is not intended to give over a comprehensive review of copyright law in halachah, about which entire sefarim have been written.

 

One thing however should now certain: no one should think about copying intellectual property without first speaking to a moreh horaah, and without considering how he would feel if he were the producer of the work rather than the consumer.

 

NOTES

  1. See ArtScroll/Mesorah publication Avraham Yagel Yitzchak Yeranen.

  2. For example, Bava Kama 113b; see ibid.