Primary Sources on Copyright (1450-1900)
Commentary on Rema Ruling re: Maharam of Padua, Krakow (1550)
Neil W. Netanel
School of Law, University of California at Los Angeles, USA
1. Full title
3. Factual Background to the Dispute
4. The Form of the Rema’s Ruling: a Reponsum
5. Wrongful Competition
6. Anxiety of Perpetuation of Error by Print
7. Tragic Epilogue
1. Full title
Responsa Rema, No. 10
Rabbinic ruling setting out the Jewish law foundations for rabbinic reprinting bans. This is the first such ruling to discuss those foundations in depth. It also holds that a non-Jewish publisher may be held to violate Jewish law by wrongfully competing with a Jewish rival and that in such as case, as in others, a reprinting ban may be enforced against Jewish buyers of illicit copies. This ruling was much discussed in later rabbinic pronouncements. But later rabbis often debated its meaning, especially since the non-Jewish publisher’s predatory pricing seems to be central to the holding.
3. Factual Background to the Dispute
In 1550, Rabbi Meir ben Isaac Katzenellenbogen of Padua (1473-1565) (known in Jewish tradition by the honorific the “Maharam of Padua”) completed a new edition of Moses Maimonides’s seminal twelfth-century restatement of Jewish law, the Mishneh Torah. Katzenellenbogen invested significant time, effort, and money in producing the edition. When the rabbi from Padua embarked on his project, Maimonides’s classic work had already been printed several times. Katzenellenbogen worked from these editions, but made some corrections and added medieval commentaries that had not previously appeared with the Mishneh Torah in print. He and his son also added about a dozen annotations of their own.
In 1550, Venice was the capital of Hebrew printing. But the Venetian Republic forbade Jews from printing books. Accordingly, Katzenellenbogen needed to find a Christian printer for his edition. He initially approached Marc Antonio Giustiniani, a Venetian patrician who held a near monopoly over Hebrew printing in Venice. For whatever reason, the two did not come to terms. Katzenellengoben instead joined forces with the Venetian patrician Alvise Bragadini (c. 1500-1575) to establish a new Hebrew press in Venice in Bragadini’s name. Bragadini’s first publication was Katzenellenbogen’s edition of the Mishneh Torah, printed in Venice in 1550 and apparently financed by the rabbi.
Giustiniani was not to be outdone. He countered by issuing his own edition of Maimonides’ seminal legal code, one that both copied Katzenellenbogen’s annotations and included an introduction criticizing them as worthless. Giustiniani further proclaimed that he would sell his edition for one gold coin less than his competitor’s edition, ostensibly to enable more Jewish readers to have access to the foundational text. Bragadini lacked a book privilege from the Venetian Senate, perhaps because, at the time, only works that had not previously been printed were eligible for a privilege. Accordingly, Katzenellenbogen petitioned Moses Isserles (1520 or 1530-1572), rabbi of Krakow, Poland, to forbid Jews from buying the Giustiniani edition.
Why did Katzenellenbogen turn to the rabbi of Krakow? Isserles was a relative youngster at the time, although he soon came to be one the preeminent rabbinical authorities of the modern era, one known in Jewish tradition by the Hebrew acronym, the “Rema.” But he and Katzenellenbogen shared familial and intellectual ties. Further, Poland was home to between half to two-thirds of the world’s Jewish population and to rabbinic academies that would have been primary markets for the Mishneh Torah.
Isserles’s resulting ruling presented an extensive explication of a right to prevent reprinting under Jewish law.
4. The Form of the Rema’s Ruling: a Responsum
Katzenellenbogen did not initiate a civil lawsuit against the Christian printer Marc Antonio Giustiniani in rabbinic court. As a Gentile Venetian patrician, Giustiniani would hardly have deigned to appear before a rabbinic court – in Poland no less. Further, Isserles later ruled that the sole jurisdiction in commercial disputes between Jews and non-Jews lies in the appropriate civil court, not a rabbinic court.
Rather Katzenellenbogen sought from Isserles a rabbinic decree in the form of a responsum. Responsa, or in Hebrew, “she’elot u-tshuvot” (literally “questions and answers”), are a form of rabbinic literature that have played a vital role in Jewish law for over 1,000 years. They consist of written answers by particularly learned rabbinic scholars to written questions posed to them, often by local rabbis seeking guidance from a greater rabbinic authority. Their subject matter spans the entire spectrum of Jewish law, ranging from commercial disputes, to family matters, to questions of faith, ritual, and philosophy. Responsa are an important source of rabbinic pronouncements on copyright law.
5. Wrongful Competition
Isserles ruled, first, that, as far as Jewish law is concerned, the Christian Giustiniani was obliged to follow the substance of Jewish law in his commercial dealings, at least in his commercial dealings with Jews. Isserles engaged in extended discussion of this issue, which involves complex matters of when Jewish law applies to non-Jews under what Jewish law labels “Noahide Law”. That discussion is mentioned but not included in the translation to the ruling because it does not bear directly on copyright law.
Isserles then ruled that Giustiniani stood in violation of the Jewish law of wrongful competition. He added some policy reasons for favoring Katzenellenbogen as well. (To the extent that these present discussion that is tangential to copyright law and the book trade, these are also omitted from the translation.) Finally, Isserles ordered that no Jew in Poland may buy or possess a recently printed copy of the Mishneh Torah other than one printed by Katzenellenbogen or his agents until Katzenellenbogen has sold out his print run. The penalty for violation, Isserles decreed, would be social ostracism, excommunication, and anathema.
Isserles’s ruling on the issue of wrongful competition has been much discussed by subsequent rabbinic authorities. In their 1518 decree in favor of Eliyahu Bakhur, the Rome rabbis briefly referred to Talmudic cases that propound the rule that, in certain circumstances, it is wrongful to encroach on—or “misappropriate”—another’s source of livelihood. In his ruling, Isserles delves into the Jewish law of wrongful competition in far greater depth. In particular, he underscores that the prohibition on encroaching on another’s livelihood is an exception to the general rule permitting competition. That restriction on competition thus requires special justification.
The rabbinic literature, both preceding and following Isserles’s ruling, discusses at length whether competition should be restricted to protect existing suppliers. This question presents a difficult quandary for the rabbinic authorities. On one hand, competition benefits consumers by providing goods at lower prices. On the other, untrammeled competition can deprive suppliers of their livelihood. For the rabbis, it is by no means a foregone conclusion that the former justifies the latter. Nonetheless, Jewish law ultimately comes down heavily on the side of allowing free competition. Accordingly, rabbinic authorities generally decline to regulate prices or restrict entry to existing markets in order to protect incumbent suppliers. There are exceptions, however, particularly when incumbent suppliers are harmed without a clear benefit for consumers.
Isserles begins his discussion of wrongful competition by reference to a case in the Talmud in which the third-century Babylonian sage Rav Huna held that a resident of a town who establishes a mill for commercial purposes may prevent a competitor from setting up an adjacent mill, on the grounds that the competitor is cutting off the first mill owner’s livelihood. Rav Huna’s position was in the minority, however, and did not gain acceptance as the operative rule of Jewish law.
Isserles recognizes that Rav Huna’s holding does not generally apply. But he finds an exception to the majority pro-competition rule in a teaching of Avi’asaf, a work of commentary on the Talmud addressing civil wrongs and other matters, written by the German rabbinic scholar Eliezer ben Joel Ha-Levi (1140–1225): “When an alleyway is closed on three sides and is open for entry on only one side and where Reuven lives [and operates a mill] on the closed end and Shimon comes to live [and erect a mill] on the open end, so that potential customers cannot enter the alleyway without passing Shimon’s door, the law is that Reuven may prevent Shimon [from entering the market].” In the case of the closed, deadend alleyway, therefore, the new entrant is certain to damage the first comer’s business, because many potential customers will buy from the new entrant (at the open end of the alleyway) without even seeing the first comer’s goods (at the closed end). In such circumstances, the rule follows Rav Huna’s minority stance: the first merchant may prevent entry by the competitor.
Isserles finds this exception directly on point: “In our case there is also certain damage. The second printer [Giustiniani] has announced that he will sell all of his books for a gold coin cheaper than those of the Gaon [an honorific referring to Katzenellenbogen]. Who will see this and not come to buy from him [the second printer]? And he is able to sell cheaply because he is one of the wealthiest men in the country.” Isserles further notes that if Katzenellenbogen is unable to sell his books, he will be financially ruined, Indeed, Isserles surmises, Giustiniani produced his competing edition for this very purpose – “for spite and in order to exhaust the Gaon’s money.”
Later rabbinic commentators debate the meaning of Isserles’s ruling. In particular, they ask whether Giustiniani’s ability and intent to sell at a loss in order to undercut Katzenellenbogen’s market price and whether Giustiniani’s nefarious motive for doing so are critical for Isserles’s conclusion that Giustiniani committed wrongful competition under Jewish law. Most commentators conclude that Giustiniani violated the Jewish law of wrongful competition because he intended to cause Katzenellenbogen great harm by selling at a loss and because that harm was certain to occur as an immediate consequence of Giustiniani’s conduct. As such, some rabbis hold, Isserles’s ruling is distinguishable from cases of normal competition, where one rival enters the market with a competing edition but without the ability and intent to engage in predatory pricing.
6. Anxiety of Perpetuation of Error by Print
Isserles’s ruling also illustrates the widespread rabbinic anxiety over the perpetuation of textual error through print. For the rabbis, books of Jewish law and learning are valuable only if they accurately and precisely set out the law. For that reason, rabbinic authorities have long expressed intolerance of scribal error. The Talmud prohibits keeping a Torah scroll containing scribal errors for more than 30 days. And rabbinic authorities subsequently extended that rule to other seminal texts. As Isserles puts it (echoing a medieval sage): “If a book contains even minor textual errors, one is liable to make erroneous legal rulings -- to prohibit that which is permitted, to permit that which is prohibited, to hold as ritually pure that which is impure, etc.”
The advent of print greatly magnified rabbinic anxiety over scribal error. On one hand, print obviated the need for serial handwritten copying and thus carried the potential for eliminating a source of textual error. More than that, a skilled, learned scholar and editor might draw upon his expertise and careful reading of a number of written manuscripts to produce a printed text that eliminates previous scribal errors once and for all. But on the other hand, print posed the grave danger of perpetuating and multiplying error many times over in a standardized text. Print also brought a new source for error: that introduced in the process of typesetting. As one celebrated editor noted in his colophon to a 1524 edition of the Mishneh Torah: “We all know that in the printing process it is impossible that no mistakes appear in the first version. Therefore, I made as certain as possible that I caught all printing mistakes. I beg the reader not to blame me if he finds a mistake. Please understand that I did my very best and that such is what happens in printing.”
In ruling in favor of Katzenellenbogen, Isserles makes a point of lauding the Rabbi’s scholarly expertise and care in editing, while questioning Giustiniani’s. As Isserles describes it, the Maharam of Padua diligently proofread his edition of the Mishneh Torah, removing errors “with his pure wisdom until there was ‘no straw remaining in the field’ and ‘no stone left in the path.’ ” To the contrary, Isserles suggests that Giustiniani’s were entirely financial – to earn revenue for his family – and that he could not be depended upon for accuracy.
7. Tragic Epilogue
Giustiniani responded to Isserles’s ruling by hiring an apostate Jew to scrutinize Katzenellenbogen’s commentary on the Mishneh Torah for statements that could be interpreted as being objectionable to the Church, and to then bring a complaint before the papal authorities. Bragadini defended against the charges, but as the case dragged through the pontifical courts, it became a lightning rod for those who claimed that all Jewish texts and Hebrew printing were inimical to Christianity.
We do not know for certain whether the Bragadini case directly impacted papal policy. But it seems likely to have reverberated in the highest echelons of the Church, which by the mid-sixteenth century bore the considerable influence of the Counter-Reformation and Roman Inquisition. The virulent suspicion of Hebrew books, epitomized and further fueled by the Bragadini case, thus found fertile ground. The result was disastrous for Hebrew printing in Venice and the Jewish community generally. By decree of the Roman Inquisition, on September 9, 1553—corresponding to the Jewish holy day of Rosh Hashanah—all copies of the Talmud found in Rome were gathered and set on fire in the Campo dei Fiori. Three days later, Pope Julius III issued a Bull directing the confiscation and burning of all copies of the Talmud throughout the Catholic world.
The decree spread rapidly throughout Italy. Hebrew books and manuscripts were burned in public squares in Bologna, Ferrara, Mantua, Ravenna, and Romagna. In Venice, the Council of Ten issued a decree, on October 21, 1553, ordering the confiscation and burning within 10 days of all copies of the Talmud, as well as “all compendia, summaries, or other books depending on said Talmud.” Among the books confiscated and burned were numerous copies of Maimonides’s Mishneh Torah.
The destruction of Hebrew books and subsequent censorship at hands of the Inquisition ended Venetian publishers’ domination of the Hebrew book trade. Hebrew printing slowly became re-established in Venice in the last quarter of the sixteenth century, as several Christian publishers, most of whom printed books on contract for Jewish sponsors, entered the market in competition with one another. Those Venetian publishers also faced stiff competition from publishers in emerging centers of Hebrew printing in Constantinople, Prague, Lublin, Krakow, and Amsterdam. The emerging competition in the Hebrew book trade helped to ignite the practice of issuing rabbinic reprinting bans.
This commentary draws heavily on the much fuller discussion in Netanel, N., From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print (New York: Oxford University Press, 2016), pp. 71-116.