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Nathanson Ruling in Matter of Yoreh De'ah, Lemberg (1860)

Source: National Library of Israel

Nathanson Ruling in Matter of Yoreh De'ah, Lemberg (1860), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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Responsa Shoel u-Meshiv, Part 1, Question 44

I herein support what has been written about approbations and reprinting bans that rabbis issue regarding printed books. I explain what I have already responded to Rabbi Shmuel Valdberg, may his candle burn, the chief judge of the rabbinic court of Zolkiew and the Kreuz, on Sunday on the 11th of Kislev [according to the Gregorian calendar, November 25, 1860]:
Rabbi Valdberg ruled in the matter of Avraham Yosef Madpis, a publisher from Lvov, who sued a rival publisher, Yosef Hirsch Balaban, over Balaban’s edition of the Yoreh De’ah section of the Shulḥan Arukh, featuring the supplemental works Pri Megadim, Ḥavat Da’at, and Pitḥei Teshuva. Rabbi Valdberg ruled that Avraham Yosef cannot prevent Balaban’s printing. In particular, with regard to Balaban’s incorporation of Pitḥei Teshuva [a leading index of rabbinic rulings on subjects treated in the Shulḥan Arukh, authored by Avraham Tzvi Hirsch Eisenstadt and first published in 1836], Rabbi Valdberg held that Balaban’s right to reprint that work depends on whether the law of the sovereign state permits him do so. If yes, Rabbi Valdberg reasoned, Jewish law permits him as well, under the Jewish law precept that, in commercial matters, the law of the sovereign is the law. If not, not.
Madpis claims that he purchased the exclusive rights to print Pitḥei Teshuva from its author. Rabbi Valderg noted, however, that the author could only sell to Madpis whatever rights the author holds. Rabbi Valderg further maintained that the author did not and does not have any exclusive right to print Pitḥei Teshuva because when Pitḥei Teshuva was first published in 1836, it appeared in print without a rabbinic reprinting ban.
Rabbi Valderg further reasoned that if Pitḥei Teshuva had been published with a rabbinic ban in 1836, it would be relevant to discuss whether that ban would remain in effect until the expiration of the period of exclusivity set forth in the ban notwithstanding that all the books were sold prior to the expiration of the nominal period. However, according to Rabbi Valdberg, if the ban were issued without any time limit, the ban would be invalid. In support of his conclusion, Rabbi Valdberg distinguished the ruling of Moses Isserles (known in Jewish tradition as the “Rema”) in Shut HaRema, No. 10, Yore Deah. As Rabbi Valdberg stated, in this case the author has already sold out his first print run, but, by contrast, the Rema granted the Maharam of Padua exclusive printing rights until he sold out his books.
In addition, Rabbi Valberg posited, the 1836 edition had no great value in and of itself. That edition was a small volume of the Shulhan Arukh in which Pitḥei Teshuva appeared with only one commentary on the main text. By contrast, Balaban has printed a large volume of the Shulḥan Arukh, featuring many other commentaries in addition to Pitḥei Teshuva. Accordingly, Rabbi Valdberg reasoned, a person who already owns a previously published large volume set of the Shulḥan Arukh, with many commentaries, will have no interest in purchasing the Balaban edition merely to acquire Pitḥei Teshuva. [Rather someone who specifically wants Pitḥei Teshuva will buy a small edition or a freestanding copy of just that work.] Balaban has thus caused no harm to the author of the Pithei Teshuva, especially since the small edition of the Shulhan Arukh in which Pitḥei Teshuva initially appeared has been sold out.
Finally, Rabbi Valdberg held that the same rule applies for publishers of reprint editions of books that have already been published as for authors of new books; there are no grounds to distinguish between the two.
Rabbi Valdberg’s words are puzzling. Certainly, if an author prints a new book and he merits that his words are received all over the world, he obviously has a perpetual right to his work. If one prints a book or invents some type of craft, another person is not allowed to reprint or use the invention without the former’s consent. And it is known that Rabbi Abraham Yaakov of Harobshob, who invented a machine to do arithmetic, received payment throughout his life from the Tsar’s government in Warsaw. “Shall not our perfect Torah be no less than their idle chatter?” This is something that common sense rejects. And it is a daily occurrence that when one prints a book, he and those empowered by him, retain the rights.
Moreover, if Rabbi Valdberg would contend that it is permissible to reprint a book when the original edition was published without a reprinting ban, we have seen a contrary practice regarding the book Tzion L’Nefesh Ḥaya. That book was reprinted in Zalkava by Rabbi Shlomo Rabin-Shtein. Rabbi Rabin-Shtein’s edition contains a written statement of permission to reprint the book from the children of its deceased author. In that case, the original edition was published without a reprinting ban. But Rabin-Shtein nevertheless did not desire to reprint it without permission because to do otherwise would violate an absolute prohibition.
Regarding the customary practice whereby books are published with a reprinting ban for a limited period of time, this is not done because the author lacks the power to prohibit reprinting forever. Indeed, a person may decree that a book shall not ever be printed without his consent or the consent of his legal representative. However, the author himself usually wants his books to be reprinted after he sells out his first printing; he wishes that his words will be spread all around the world. [Hence, when an author petitions for a rabbinic reprinting ban for a limited period of time and presents that ban in his book, he does so in order to give notice that he waives his right to perpetual exclusivity.] By contrast, where the author of a book that is truly in demand -- like the book Pitḥei Teshuva, which has many buyers because teachers need that index to teach the Shulḥan Arukh -- wishes that the book not be reprinted by others, even if the whole world comes to him and so requests, it is obvious that he holds in his hands the power to reject those requests to reprint the book.
And regarding Rabbi Valdberg’s contention that the author in this case did not inscribe a reprinting ban in his original edition, even if no such reprinting ban was given, it is still forbidden to trespass upon the author’s perpetual exclusive rights.
And indeed, in the Land of Russia it is forbidden for us even to mention a ban; that word cannot even be heard from our mouths. By order of the government, we have no power to issue decrees banning reprinting or even make a request to refrain from reprinting. For this reason, the original edition of Pitḥei Teshuva (which was published in the Russian Empire) contained no mention of any rabbinic prohibition on reprinting.
Moreover, in our country [the Austrian Empire] there is a law governing printing and prohibiting reprinting (without the author’s permission). It is a law of the government. So what power does a rabbinic court have to require that authors must petition the rabbinic court if they wish to prohibit reprinting? Even if rabbinic reprinting bans are occasionally found in books, behold it is as if the rabbis who issue such bans are ignoring the government’s grace. And if publishers subvert the law [by requesting rabbinic bans] they might be punished.
Rabbi Valdberg also held that even if the author has not sold any of his books there is no prohibition [to reprint and sell the books] in a different country. Indeed, as rabbinic jurists have held, where it is impossible to export books from one country to another due to import restrictions imposed by the government, a rabbinic prohibition in one country does not apply in the other country. But this applies only when the rabbinic ban has been issued in favor of a publisher who has issued a new edition of a book that was previously published. By contrast, the author himself has the power to prevent reprinting without his permission throughout the world.
The question remains whether, as Rabbi Valdberg has hinted, rabbis have the power to issue a decree banning reprinting that explicitly applies throughout the world. In my opinion this is impossible. If a publisher one would reprint in another country, the rabbis would not have the power to protest. When the government prohibits importing books, books of Jewish learning cannot simply be exported from one country to another country, which gives reason for concern.
And behold, regarding the Vilna printing of the Talmud, whereupon the printers of Slavuta agitated the world, an approbation was found in the tractate of Shabbat by the Esteemed Authority Rabbi Moses Sofer, may his memory be blessed, in which he wrote that in the year 5583 [according to the Gregorian calendar, 1823] the Esteemed Authority, Our Teacher and Rabbi Mordekhai Banet, may his memory be blessed, wrote to the Esteemed Authority Moses Sofer, may his memory be blessed, that in his opinion there is no basis in Jewish law for a rabbinic decree to prevent a printer [from printing a rival edition], especially regarding the printing of a book that is not new. Rabbi Banet further opined that, in any event, no rabbi has the power to issue a decree that has force in another country, following the ruling by the Rivash [Isaac ben Rav Sheshet Perfet (1326-1408)]. Rabbi Sofer responded that rabbinic reprinting bans are issued so that the printing trade will not become idle.
From this exchange, it is clear that if it is impossible under the law of the sovereign state to export books of Jewish learning and liturgy to another country, what kind of power does a rabbinic court possess? Indeed, in such circumstances, it is impossible for a rabbinic court to issue a decree banning reprinting that is effective in another country because when the original printer cannot export his books to that country in any case, there is no reason to “lock the door” [i.e., prevent a rival printer from printing the same book in that country].
However, all of this applies only if the printer for whom the reprinting ban has been decreed seeks exclusivity for his edition of a book that has already been in print. By contrast, whenever the author prints a new book for himself, he has the power to decree a prohibition on reprinting all over the world. We see an example of this in the preface to Sefer Hafla’a [a book written by Pinḥas Horowitz (1731-1805), rabbi of Frankfurt am Mein] in which the author decreed that no printer may reprint the book without his consent.
Again, the reason why an author takes upon himself to obtain rabbinic approbations is not to restrain others from printing, but rather for the body of the book -- to demonstrate that the book it is worthy to be published for a large community of readers. And incidentally, we mention the number of years of exclusivity that the author himself desires, following which any publisher may reprint his book….
Rabbi Valdberg also wrote that even if a book contains an explicit rabbinic reprinting ban, if the ban does not specifically say that it is forbidden to reprint the book with added or missing language, a publisher is allowed to reprint so long as his edition is not in the same exact format as the original. Behold, this conclusion brings us to a ludicrous result, because if we follow Rabbi Valdberg’s reasoning …, the result would be that it is allowed to reprint an author’s work where the reprinting publisher merely omits one item, and if this indeed so, what good have the sages done by issuing the decree in the first place?
And Rabbi Valdberg wrote that a reprinting ban has no validity before the printing of a book. Behold, it is absolutely true that a prohibition based upon a reprinting ban does not apply if the one receiving the reprinting ban then conceals it in his lap [and does not act upon it, e.g., by purporting merely to hold the exclusive rights, without endeavoring to actually publish the book. However, if [the publisher] has already prepared all of the printing instruments and is starting to print, [another publisher who then commences publication] is a trespasser. Rabbi Valdberg wrote, that in such circumstances, a reprinting ban might “lock the door” [before good faith publishers] who might have no knowledge of the ban. Indeed, we have seen an edition of Sefer Abudraham [a book authored by David ben Josef ben David Abudarham (fl. 1340)] in which the printer wrote that he had published the edition unaware of a reprinting ban issued by the Esteemed Authority Noda Be-Yehuda [Yeḥezkiel Segal Landau (1713-1793] and, for violating the ban, was punished by the death of his daughter, God forbid. But the danger cited by Rav Valdberg is slight, because if a publisher has already started to print, it is beyond doubt that that all other publishers will know about it, especially in our era when publications in progress are immediately known all over the world.
Moreover, in the book being printed by Avraham Madpis he himself is the one giving notice and Yosef Balaban will receive knowledge of the ban unless Madpis should deliberately allure him [by hiding the ban from him]. And Balaban is not allowed to print even if Madpis tripled his writings in his hands so that others shall not trespass upon his rights in these manuscripts; this one in Yoreh Deah and other books, and this one solely in other books.
Moreover, even where all the books have been sold, it is forbidden for another to reprint because, indeed, the [original] publisher wants to publish more books. He simply does not have enough funds to print them all in one print run. Rather, he must print them in successive runs.
And also, the world is in great need of the Yoreh De’ah and it is impossible for them to wait.
In sum, in my humble opinion, it is clear that judgment is to be given in favor of the printer Avraham Yosef Madpis.


Translation by: Neil Netanel


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