Schmelkes Responsum, Przemysl, Austrian Galicia (1899)


Schmelkes Responsum, Przemysl, Austrian Galicia (1899), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer,

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Chapter 1 Page 2

Blessed be God, Przemsyl, “I shall be like dew for Israel” [Hosea 14:6].

Greetings to the sharp, famous Esteemed Rabbi, Simon Sofer, may his candle enlighten us, the presiding judge over the holy congregation of Erlau [otherwise known as Eger, a town in northern Hungary].
Regarding the question [posed by Simon Sofer]: When a deceased author has left behind a manuscript of innovative commentary on Jewish law sources, may another person copy and print that work without the heirs’ consent when the manuscript was already copied during the author’s lifetime, or would such copying and printing without permission be a kind of misappropriation?

Response: Behold, his Honorable Holy Torah [an honorific, referring here to Simon Sofer], has likened the right to print to a personal benefit, and as the Rema [Rabbi Moses Isserles] explained [in his commentary on the restatement of Jewish law, the Shulḥan Arukh], a personal benefit is not inheritable. However, in the words of Siftei Cohen [a seventeenth-century commentary on the Shulḥan Arukh], if the item is already in the hands of the heirs, then they do hold legal rights, and in this way, a personal benefit may also be descendible….

As I see it, because the manuscripts truly belong to the heirs, they may certainly object of another person wishes to copy them. Hence this no room for doubt that another may not copy without the heirs’ permission, unless he already copied the manuscript during the author’s lifetime or previously without the heirs’ knowledge. In that regard, it does not matter whether the person heard the author’s orally or saw them in writing, since if someone hears Jewish teachings, it is permitted to teach them to others and to publish them, so long as that is done in the same of the person who uttered them. And if thousands and thousands of students are listening to their teacher, why, if one of them saw the teachings in writing, should he be unable to publish them in his teacher’s name so that he may disseminate the teachings to the world?

Yet we must distinguish the cases. When one has heard an oral teaching from another person, if the teacher did not tell the listener that it is prohibited to convey the teaching to others, it should be assumed that the teacher is indifferent to whether others disseminate it. But where the teacher told his listeners that they should not disseminate his oral teaching to others, the listener is certainly prohibited to tell others. The reason is that the teaching and innovative commentary are the teacher’s, and the teacher may say, “I want to tell only you, not others.” However, aside from the situation in which a teacher explicitly prohibits others to convey his teaching, it is permitted for those who hear it to disseminate it to others. In such a case, the listener is actually fulfilling a divine commandment to spread Jewish learning.
Further, if a person copies an author’s manuscript with the author’s permission, and the author does not explicitly tell him that the manuscript may not be shown to others, the author surely agrees that the person who copies his written teachings will share them with others. In such a case, therefore, the law is that the person is allowed to print the work. Nevertheless, when a person copies written teachings without their author’s knowledge or without the knowledge of the author’s heirs, there is room for doubt whether such copying and printing would be permitted.

Behold, we learn from the Rema [Moses Isserles] in his commentary on the Shulḥan Arukh … that if one entrusts books of Jewish law and learning to a rabbinic scholar, the scholar is permitted to read and copy from them because, certainly, this must have been the purpose of so entrusting the books. And Siftei Cohen commented that such reasoning might be the same as that of the rabbinical gloss on Proverbs: “They will not despise the thief if he steals.” For one should not despise another who steals works of Torah and copies them…..
Thus, we see clearly that it is permitted to copy from another’s books and thereby to teach others. And, apparently, the same law applies to copyright from an author’s manuscripts. It is permitted to copy and print them.

However, one must distinguish between [the first situation] whereby [a person] copies from published books and there is no damage, so that [the well-known rule of] “one has a benefit and the other does not lose anything” applies and a rabbinic court has authority to compel a person to refrain from adopting the character traits of the inhabitants of [the wicked city] of Sodom [who committed the sin of greed]. [Nonetheless, this rationale] is not applicable [in a case where a person] copies a manuscript [belonging to the author’s heir] or to his father, because in such a case [the author or his son the heir] is certainly entitled to object and also to object to the printing [by someone else], because [where we are dealing with the heir] his father has left him teachings of Torah and to print them is to fulfill a divine commandment. Thus, the heir can say “I wish to fulfill the divine commandment of spreading teachings of Torah.” Moreover, if [publishing the work would also have possible] economic benefit, the heir is entitled even more so to object and claim the legal right to the manuscripts and the economic appreciation of the manuscripts, because an heir is entitled to inherit the enhanced value of an asset….

Ultimately, I conclude that even if the author permitted [another] to copy some of his works during his lifetime, it is forbidden [for the latter person] to publish them without the consent of the author’s heirs because we assume that the author allowed [the other person] to copy [the manuscripts] for the sole purpose of enabling his own personal study, not in order to spread [the written teachings] all over the world. It is [also] in the nature of things that an author’s heirs print and publish their father’s work. If another person may print the work, the heirs will not be able to do so, because they would risk incurring the expense of printing only to face economic loss, despite their status of being the author’s heirs, when someone else comes along to print and sell the books. Moreover, another [printer] might only partially print [the teachings] and omit a portion of the works. Thus, there is an assumption [that that the author did not allow the other person to publish any manuscripts], especially when the book and the manuscripts have monetary value - like currency bills, that may be inherited - and the same law applies to manuscripts. And it is certainly forbidden for the other person to copy the manuscripts and print them without the consent of the author’s heirs. Indeed, [even] if the author has already printed his book, so long as he has not sold his books, it is surely forbidden for another person to reprint [the book and thus cause] economic loss to the author or his heirs.

Chapter 1 Page 3

However, if the author has already sold his books then we must give further consideration to the matter. In that case, the author has already published his teachings and sold his books and, therefore, other people are entitled to learn and teach. Further, if all [the author’s] books have been, why is another person unable to bring benefit to the people of his generation by printing and selling [more copies of the book] for a cheaper price? For Ezra [the Scribe] instituted [a principle] for the people of Israel that those who teach Torah to small children are allowed to offer their services despite the presence of another Torah teacher in close proximity, as the [Talmud Bavli] states in Bava Batra 22a. In the face of that precedent, how could we rule otherwise by putting on a seal for these books [to prevent competition]?

And I have seen the writings of the Gaon of Lemberg in his Sho’el U-Meshiv [i.e., Joseph Saul Nathanson], where he discussed this issue extensively and concluded without hesitation that it is forbidden to reprint even when the original edition lacks a rabbinic approbation and reprinting ban and even though the author has already sold his books. [Nathanson further held that] the reason for the custom of the approbation and that the rabbis issue a decree that others are forbidden to print for a certain amount of years is to allow the printing after the expiration of the period set forth in the ban. However, [Nathanson held], absent a rabbinic approbation and decree, the author has a perpetual exclusive right to print.

With all due respect to His Honorable Holy Torah [i.e., Nathanson], I see no proof for this opinion. For although a teacher’s teachings about Jewish law are his, nevertheless once he lets another person learn from his written work or has sold the first printing of his books, he surely has permitted gratuitous use of them. As stated in Talmud Tractate Nedarim, Moses our Teacher was generous with the Torah and gave it to Israel, and Scripture referred to him with the verse, “He who has a generous eye shall be blessed.”
And for this reason . . . rabbis’ decrees that books may not be reprinted remain in effect for only a circumscribed number of years. And regarding what the Sho’el U-Meshiv wrote that if one invents a new craft, then another person is not allowed to practice that same craft without the former’s consent, because “our perfect Torah should not be less than their idle chatter,” this is not in accordance with what we learned about the Torah: “Just as I give it freely, so you shall give it freely.” The Torah is not an axe to cut with [i.e., one should not teach the Torah for one’s personal financial gain].

Moreover, regarding the tools of one’s craft, if one does not possess a privilege from the government attesting that he owns an eternal right to his invention, I know of no prohibition whereby another may not practice the same craft [or reprint the same books].

Granted, one who teaches the Torah may be paid an “idleness payment”—what he might have earned in another profession were he not devoting all of his time to teaching Torah. But aside from that [subsistence payment], where is it allowed to take payment solely for an intangible right, even where there is no burden imposed? Plus, even if we would agree that it is permitted to receive such payment for an intangible right, who is empowered to prohibit another from printing a book based on the former’s Torah knowledge until the one wishing to print pays for the right to do so? For the Torah is compared to water, from which one may draw freely with no charge.
And [Nathanson] brought proof [for his conclusion] from the case of Zion L’Nefesh Ḥaya [a commentary on the Talmud by Rabbi Yeḥezkel Segal Landau (1713-1793), written and published in the late eighteenth century]. That work was reprinted in Zolkiew after the publisher of the reprint edition received a license from the author’s son. But obtaining a license was entirely superfluous. A counterexample can be found regarding all of the books of the Gaon of Lissa [Rabbi Yaakov ben Moshe Lorberbaum of Lissa (1770-1832)], which were reprinted many times and sold cheaply. And the reprints contained no license from the author’s heirs. If it had been necessary to obtain a license [the books] would have been sold at a high price. Thus, the ruling of the Shoel U-Meshiv [Nathanson] requires further investigation.

From the perspective of the Jewish law precept that “the law of the sovereign state is the law,” it is forbidden in our country to print. And His Honorable Holy Torah [i.e., Simon Sofer] has asked if we apply that principle to a case like this even if the [local secular law] contradicts [and supersedes] Jewish law [by protecting the legal rights of an author when Jewish law per se would not].

Behold, in Hilkhot Aveida, No. 259 [the section the Shulḥan Arukh concerning lost property], it is explained that one who saves [another’s personal property] from the sea is obligated to return it [to the rightful owner] on the basis of “the law of the sovereign state is the law” [even though under Jewish law per se items that are washed to the sea are considered abandoned and free for the taking].

And in No. 356 it is explained that an innocent bailee must return stolen property to its owner on the basis of “the law of the sovereign state is the law,” because it is customary to do so. According to Siftei Cohen one must therefore return [personal property] on the basis of the custom [and not on the principle of the “law of the sovereign state” per se].

According to this [rationale], one may claim that the same law applies when [the Jewish community] has adopted a custom to refrain from reprinting in fear of the government [i.e., violating the law of the state]. However, one is [also] compelled to follow the precept of “the law of the sovereign state is the law,” because we should conclude that only when the law of the state directly contradicts the laws of the Torah and [also] causes financial loss [to Jews who would otherwise benefit from the Jewish law], do the laws of Torah remain in force. But in a matter where the law of the state [merely] prevents financial profit and is not considered to cause an injury, Jewish law requires that we uphold the law of the state for the same reason that we require that lost property [that Jewish law would deem to be abandoned] must be returned [to its owner].

And this law [prohibiting the reprinting of another’s work applies] is all the more so [applicable] because, as I have already written, the Gaon of Lvov [in other words, Nathanson] has written that [the rule prohibiting reprinting not merely derived from a rabbinic interpretation, but rather] this is the law according to the words of the Torah, and thus the law of the state must be observed.

And see Rabbi Moses Sofer, Ḥoshen Mishpat, No. 44, where it is likewise explained that if a regulation [of the sovereign state] is found to be favorable to craftsmen, the law of the state must be followed. All the more so here, where there is a state regulation in favor of the authors.

And behold, His Honorable and Holy Torah may look at the preface to Moses Sofer’s Responsa, Yoreh De’ah, in which the revered, righteous rabbinic authority stated that he did not wish to print and thereby gain monetary profit [because by receiving a profit from the learning of Torah] eternal life would be denied, God forbid. And thus he wrote that his books are abandoned property, [so that] all who wish to copy them may come forward and copy them. But who else is such an exalted righteous man, whose livelihood was plentiful in this world? In our day, the offspring of scholars of Jewish law are miserably poor, and it is necessary to earn a livelihood from teaching Jewish law. Nevertheless, according to Jewish law, but for the doctrine of the law of the sovereign state, [publishers] would not need to obtain consent [from the author] of a book which has already been in print. But in our country this does not matter, because there is law of the sovereign state [that must be applied].

Translation by: Neil Netanel


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