PRIMARY SOURCES
ON COPYRIGHT
(1450-1900)
Browse Documents By...
Original Language...
Documents For...
Browse Commentaries By...
Browse Referred Persons By...
Sofer Responsum on Vilna-Slavuta Talmud Dispute, Pressburg, Hungary (1835)
Source: hebrewbooks.org
Citation:
Sofer Responsum on Vilna-Slavuta Talmud Dispute, Pressburg, Hungary (1835), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
1 translated page
Chapter trans Page 1
Moses Sofer, Responsa Hatam Sofer, Likutim, No. 57
The petition of the rabbi-printers of Vilna and Grodno has prevailed upon me to insert my head between giant mountains [i.e., great rabbinic authorities] in the matter between them and the rabbi-printer in Slavuta….
I respond and declare: it is indeed true that in the year 1823 the Esteemed Authority, our teacher and rabbi, Mordechai Banet, of blessed memory, conveyed to me that, in his opinion, it is not appropriate for rabbinic approbations to include reprinting bans. His reasoning was that we have never seen in Jewish law any such rule: one that provides that one person has a right in law to prevent another who follows him [i.e., who wishes to compete with him in a line of business], especially where the first printer’s edition is not a new book and the first person is not seeking to protect tangible property, but merely the toil of that for which he has troubled himself somewhat and for which he takes payment from the book’s sale. And inasmuch as a ban on reprinting is not recognized under precepts of Jewish law, no rabbi or teacher may issue a decree forbidding reprinting in his country that would be enforceable in another country, as more generally set forth by Rivash in his responsum. In addition, Rabbi Banet asserted that given that there are Gentile printers who are under no obligation to abide by a rabbinic decree banning reprinting, when we issue such bans, we inflict financial loss on Jewish publishers who respect the ban, while at the same time the first publisher does not gain any profit at all because the Gentile is able to reprint the book.
I did not accept Rabbi Banet’s position but rather responded to him. I explained that we do not analyze this issue [of rival editions of the same book] in terms of general principles of Jewish law that prohibit appropriating another’s established client or harming another's livelihood through wrongful competition. Rather, since the inception of print the scribes who hand copied books have become obsolete, and thus if - Heaven forbid – printing shall also cease, the Torah [i.e., Jewish learning and observance] shall come to an end, may God save us. It is impossible to print books without large expenditures, and it is thus impossible to engage in the business of printing books of Jewish learning unless the publisher is given exclusivity for each of his books. Moreover, that exclusivity must cover in the entire marketplace of all the dispersed people of Israel. As a result of our transgressions we are dispersed all over the world, a tiny fragment here and a tiny fragment there. Accordingly, a publisher needs to devote much time and expense to accomplish his undertaking [i.e., recover his investment by selling his books], and if we do not shut the door before other, competing publishers, then who will be such a fool to set foot in a such a precarious enterprise, risking a loss of thousands? Hence, unless we accord publishers exclusive rights, the publishing business will be cease, God forbid, and the Torah will come to an end. Therefore, for the improvement and repair of all of Israel and in order to elevate the power of the Torah, our rabbinic forebears erected a fence before one who would otherwise enter the domain [of the first publisher’s business], and present day rabbis follow that practice by demarcating a domain of exclusivity for the first publisher [by issuing reprinting bans]…. All of this serves to bolster and exalt the Torah. Not to favor the publisher but to bolster the Torah. It is order to bolster the Torah that we must impose constraints on competing publishers to ensure that they do not undermine the first publisher’s livelihood.
The Men of the Great Assembly [according to Jewish tradition, an assembly of 120 scribes, sages, and prophets that held judicial authority in ancient Israel from roughly the sixth to the third centuries BCE] established several days of fasting so that the producers of manuscripts would not cease their work .… So how can we refrain from erecting a fence on their behalf to bring strength and glory to the Torah? Hence, our rabbinic forebears established this principle as a binding tenet of Jewish law [rather than merely a rabbinic edict] …and, today, we carry out their mission. Thus, any rabbi – whoever he may be – who determines at the moment of a book’s publication, in consideration of the particular time and place and book, that it is justifiable to establish a given period of time during which it will be prohibited to enter upon the publisher's exclusive domain, his reprinting ban shall apply to all Israelites in any place where they may be, since that rabbi acts in the service of our forebears, and the ruling of the Rivash that rabbis have no authority to issue edicts that are enforceable in another jurisdiction does not apply. Moreover, to address the sage Rabbi Banet’s assertion that it makes no sense to impose reprinting bans because there are Gentile printers who do not heed our voice…, let us impose a ban and curse on those who purchase or who study from the books that were reprinted in violation of the reprinting ban during the prohibited period. And as a result, all the words of our ancient sages shall endure, and the word of our Lord shall stand forever.
The above summarizes my previous response to Rabbi Banet. [I now turn to the case at hand.] And that which follows from the foregoing is this: if the issues of a reprinting ban placed a limit on its duration for a number of years that seemed proper in their eyes, and if, prior to the expiration of this period, the publisher succeeds in selling all of his books, there is no reason for the issuing rabbis’ prohibition to apply outside of jurisdiction of their local government -- this in accordance with the words of the Esteemed Authority, our teacher Rabbi Mordechai Banet, may the memory of the righteous be for a blessing. The reason is that we rabbis lack the authority to prohibit reprinting by a competing publisher unless that prohibition is for the benefit of all of Israel and to bolster the Torah, not merely for the benefit of the first publisher as if the publisher holds a monopoly over a certain line of business. In such a case, where the first publisher has already sold all of his books, all publishers are then equal because the first publisher has already turned a profit. Under those circumstances, the ban of our forebears, who issued a decree upon subsequent publishers does not apply. That ban [and present day bans that derive authority from it], applies neither following the expiration of the period designated in the ban, nor following the original publisher's sale of his initial print run. Moreover, even if the rabbinic issuers of a reprinting ban explicitly state in the ban that the ban shall remain valid for the full designated period, regardless of whether the publisher's books have been liquidated and sold out, that provision is invalid because they do not possess the power to issue such an edict.
Consequently, if it is true in the current dispute that [1] all volumes of the Slavuta edition of the Babylonian Talmud have been sold out, and none remain, or [2] as the Slavuta publishers argue they still have 37 sets left unsold but the Vilna and Grodno publishers buy those remaining 37 sets at a fitting price set by the rabbinic court, then the ban in favor of the Slavuta Talmud is no longer valid, and the subsequent publishers [of Vilna and Grodno] may proceed to publish and profit from their edition of the Talmud. In that event, the principle of the jealously [or rivalry] of scholars increases wisdom applies and the competition among publishers will lead to greater publishing of editions of the Talmud and other books….
Moses Sofer the insignificant of Frankfurt-am-Main
2
Translation by:
Source: hebrewbooks.org
Citation:
Sofer Responsum on Vilna-Slavuta Talmud Dispute, Pressburg, Hungary (1835), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org
Back | Record | Images | No Commentaries
Translation only | Transcription only | Show all | Bundled images as pdf
1 translated page
Chapter trans Page 1
Moses Sofer, Responsa Hatam Sofer, Likutim, No. 57
The petition of the rabbi-printers of Vilna and Grodno has prevailed upon me to insert my head between giant mountains [i.e., great rabbinic authorities] in the matter between them and the rabbi-printer in Slavuta….
I respond and declare: it is indeed true that in the year 1823 the Esteemed Authority, our teacher and rabbi, Mordechai Banet, of blessed memory, conveyed to me that, in his opinion, it is not appropriate for rabbinic approbations to include reprinting bans. His reasoning was that we have never seen in Jewish law any such rule: one that provides that one person has a right in law to prevent another who follows him [i.e., who wishes to compete with him in a line of business], especially where the first printer’s edition is not a new book and the first person is not seeking to protect tangible property, but merely the toil of that for which he has troubled himself somewhat and for which he takes payment from the book’s sale. And inasmuch as a ban on reprinting is not recognized under precepts of Jewish law, no rabbi or teacher may issue a decree forbidding reprinting in his country that would be enforceable in another country, as more generally set forth by Rivash in his responsum. In addition, Rabbi Banet asserted that given that there are Gentile printers who are under no obligation to abide by a rabbinic decree banning reprinting, when we issue such bans, we inflict financial loss on Jewish publishers who respect the ban, while at the same time the first publisher does not gain any profit at all because the Gentile is able to reprint the book.
I did not accept Rabbi Banet’s position but rather responded to him. I explained that we do not analyze this issue [of rival editions of the same book] in terms of general principles of Jewish law that prohibit appropriating another’s established client or harming another's livelihood through wrongful competition. Rather, since the inception of print the scribes who hand copied books have become obsolete, and thus if - Heaven forbid – printing shall also cease, the Torah [i.e., Jewish learning and observance] shall come to an end, may God save us. It is impossible to print books without large expenditures, and it is thus impossible to engage in the business of printing books of Jewish learning unless the publisher is given exclusivity for each of his books. Moreover, that exclusivity must cover in the entire marketplace of all the dispersed people of Israel. As a result of our transgressions we are dispersed all over the world, a tiny fragment here and a tiny fragment there. Accordingly, a publisher needs to devote much time and expense to accomplish his undertaking [i.e., recover his investment by selling his books], and if we do not shut the door before other, competing publishers, then who will be such a fool to set foot in a such a precarious enterprise, risking a loss of thousands? Hence, unless we accord publishers exclusive rights, the publishing business will be cease, God forbid, and the Torah will come to an end. Therefore, for the improvement and repair of all of Israel and in order to elevate the power of the Torah, our rabbinic forebears erected a fence before one who would otherwise enter the domain [of the first publisher’s business], and present day rabbis follow that practice by demarcating a domain of exclusivity for the first publisher [by issuing reprinting bans]…. All of this serves to bolster and exalt the Torah. Not to favor the publisher but to bolster the Torah. It is order to bolster the Torah that we must impose constraints on competing publishers to ensure that they do not undermine the first publisher’s livelihood.
The Men of the Great Assembly [according to Jewish tradition, an assembly of 120 scribes, sages, and prophets that held judicial authority in ancient Israel from roughly the sixth to the third centuries BCE] established several days of fasting so that the producers of manuscripts would not cease their work .… So how can we refrain from erecting a fence on their behalf to bring strength and glory to the Torah? Hence, our rabbinic forebears established this principle as a binding tenet of Jewish law [rather than merely a rabbinic edict] …and, today, we carry out their mission. Thus, any rabbi – whoever he may be – who determines at the moment of a book’s publication, in consideration of the particular time and place and book, that it is justifiable to establish a given period of time during which it will be prohibited to enter upon the publisher's exclusive domain, his reprinting ban shall apply to all Israelites in any place where they may be, since that rabbi acts in the service of our forebears, and the ruling of the Rivash that rabbis have no authority to issue edicts that are enforceable in another jurisdiction does not apply. Moreover, to address the sage Rabbi Banet’s assertion that it makes no sense to impose reprinting bans because there are Gentile printers who do not heed our voice…, let us impose a ban and curse on those who purchase or who study from the books that were reprinted in violation of the reprinting ban during the prohibited period. And as a result, all the words of our ancient sages shall endure, and the word of our Lord shall stand forever.
The above summarizes my previous response to Rabbi Banet. [I now turn to the case at hand.] And that which follows from the foregoing is this: if the issues of a reprinting ban placed a limit on its duration for a number of years that seemed proper in their eyes, and if, prior to the expiration of this period, the publisher succeeds in selling all of his books, there is no reason for the issuing rabbis’ prohibition to apply outside of jurisdiction of their local government -- this in accordance with the words of the Esteemed Authority, our teacher Rabbi Mordechai Banet, may the memory of the righteous be for a blessing. The reason is that we rabbis lack the authority to prohibit reprinting by a competing publisher unless that prohibition is for the benefit of all of Israel and to bolster the Torah, not merely for the benefit of the first publisher as if the publisher holds a monopoly over a certain line of business. In such a case, where the first publisher has already sold all of his books, all publishers are then equal because the first publisher has already turned a profit. Under those circumstances, the ban of our forebears, who issued a decree upon subsequent publishers does not apply. That ban [and present day bans that derive authority from it], applies neither following the expiration of the period designated in the ban, nor following the original publisher's sale of his initial print run. Moreover, even if the rabbinic issuers of a reprinting ban explicitly state in the ban that the ban shall remain valid for the full designated period, regardless of whether the publisher's books have been liquidated and sold out, that provision is invalid because they do not possess the power to issue such an edict.
Consequently, if it is true in the current dispute that [1] all volumes of the Slavuta edition of the Babylonian Talmud have been sold out, and none remain, or [2] as the Slavuta publishers argue they still have 37 sets left unsold but the Vilna and Grodno publishers buy those remaining 37 sets at a fitting price set by the rabbinic court, then the ban in favor of the Slavuta Talmud is no longer valid, and the subsequent publishers [of Vilna and Grodno] may proceed to publish and profit from their edition of the Talmud. In that event, the principle of the jealously [or rivalry] of scholars increases wisdom applies and the competition among publishers will lead to greater publishing of editions of the Talmud and other books….
Moses Sofer the insignificant of Frankfurt-am-Main
2
Translation by: