B
eginning in 1997,Microsoft’s Israeli subsidiary sought legal relief in Israel’s courts against software pirates who had copied the company’s computer disks and programs. The court ultimately granted Microsoft the justice it sought. But this alone was only half a victory. The company had also petitioned a rabbinic court in the ultra-Orthodox enclave of Bnei Brak for a ruling that would support its position as a matter of Jewish law. Microsoft received a favorable ruling there as well, in the form of an edict labeling as “transgressors” those who copied its intellectual property and sold it at lower prices.
To those not intimately familiar with both halakhah and copyright law, the rabbinic court’s decision might seem like a quirky legal first. Who knew, really, that Jewish law has ever wrestled with questions of copyright? But as Neil Netanel’s new book, From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print, relays, the Microsoft ruling comes after centuries of rigorous rabbinical thinking about print, property, and the role of halakhah itself.
Netanel’s book appears to have been written with two major goals in mind. First, it seeks to tell the story of the Jewish law of copyright since its formulation in the 16th century. Second, it demonstrates how the halakhah of copyright law has been influenced by historical and cultural factors operating both within and outside the Jewish community. As Netanel tells it, Rabbis in Rome issued their first known ban on reprinting books in 1518. In some ways, the earliest bans mirrored the papal bans and secular book privileges then in vogue. (The book privileges allowed recipients a monopoly over the printing and publishing of a book for a designated period of time.) For example, both rabbinic and papal bans were often enforced through a decree of excommunication. That and other similarities reflect a shared understanding among early modern Jews and Gentiles of the nature of authorship. In fashioning their bans, however, the rabbis also drew heavily from traditional Jewish sources, such as the Torah, Talmud, and, eventually, halakhah. This influence is evident in the first ban’s emphasis on Talmudic injunctions against encroaching on another’s livelihood. (The secular book privileges, by way of contrast, emphasized the sovereign’s discretion to reward deserving subjects.)
In making use of Jewish tradition, the rabbinic ban represented, according to Netanel, a “bold halakhic innovation.” The rabbis applied Talmudic principles to the entirely new business of printing and selling books—a business founded on technology that did not exist until Gutenberg gave the West the printing press in the 15th century. The rabbis’ innovation would now be open to the ongoing and nuanced commentary that characterizes Jewish law.
More than three decades after the first rabbinical ban, a young Moses Isserles, the author of the Ashkenazic commentary to the Shulhan Arukh (a codification of Jewish law), issued his first responsum. It involved a copyright dispute between two competing editions of the Mishneh Torah, a Jewish law code written by Moses Maimonides. Ultimately, Isserles issued a reprinting ban and order of excommunication, limited to Poland, for those who bought or possessed an illicit edition of the work. His reasoning focused on the harm engendered by predatory pricing rather than a concern for the copying itself. Isserles’s ruling became the basis for the widespread adoption of rabbinic book bans.
Netanel traces the role these bans played in the development of the Hebrew book trade, which began in the late 16th century. During this period, we see the emergence of a subtle, but often contradictory, halakhah concerning reprinting bans. Although the earlier bans focused on the prohibition against encroaching on someone else’s livelihood, the later rulings were multifaceted, bolstered by a wide range of halakhah and underlying policy about matters such as the scope of rabbinic authority and fostering Jewish learning. By the middle of the 19th century, however, rabbinic reprinting bans waned in importance, a development that paralleled the disintegration of Jewish communal autonomy and rabbinic juridical authority.
Netanel’s final chapter is titled “The Present-Day Debate: Is Copyright Infringement ‘Stealing’?” On this question, there are two competing Jewish perspectives, both of them influenced by secular law. The first understands copyright explicitly as property. The second, which garners more support, sees copyright as an “amalgam” of rights arising from a multitude of sources including early rabbinic bans, binding custom, protection against wrongful competition and unjust enrichment, and deference to secular law regarding commercial matters. Thus we see halakhah still incorporating ideas from both its own tradition and from those around it.
From Maimonides to Microsoft is a meticulously researched and artfully presented account of the history of copyright law as it has developed under the watchful eyes of rabbinic authority. Netanel’s treatment, which continually underscores the importance of historical circumstances and environmental context, is undoubtedly useful to copyright and comparative-law scholars. But it is foremost a contribution to our understanding of halakhah, both in theory and practice. Netanel is to be commended for mining a rich yet largely unexplored vein in Jewish law. Considering that Israel’s technology and communications sectors are almost unparalleled hives of dynamic creativity, Jewish copyright law is likely to seem far less obscure in the years to come. Both Netanel’s efforts and those of the rabbis he writes about are sure to increase in value.
