Shiur #12: The Invention of the Printing Press II (1440)

  • Rav Aviad Tabory
 
The invention of the modern printing press in 1440 enabled books to be printed more cheaply and quickly than ever before. All books, both religious and secular ones, were now accessible to the masses. This new technology impacted upon populations that never before had access to these texts.
 
As mentioned in the last shiur, rabbis were instantly faced with the challenge of determining whether writing and printing are halakhically the same. We discussed in the past the halakhic status of a printed book and whether or not printed Torah texts to be used in ritual objects like mezuzot and tefillin would be halakhically acceptable.
 
This comparison leads to other interesting questions that arise, for example printing on Shabbat. Writing two letters is a violation of Shabbat (one of the thirty-nine forbidden labors, melakhot). Is using a printing press on Shabbat considered a transgression on the same level?
 
Rav Ya’akov Chagiz (Morocco, 1620–1674) discusses this matter in his introduction to his commentary on Hilkhot Shabbat. According to him, printing on Shabbat might entail the violation of three to six separate melakhot! Besides the melakha of writing, he mentions violations connected to setting and arranging the letters on the press itself, e.g. me’ammer (making piles), boneh (building), soter (destroying) and even makkeh be-pattish (the final hammer blow, i.e. completing the task).[1]
 
In addition, the printing press raises an entire new area of legal and halakhic debate regarding copyrights.[2]
 
Haskamot
 
From the beginning of the publishing era, it was very common to add letters of introduction to the first pages of the books. These letters, named haskamot, literally meaning “agreements” (singular: haskama), usually signed by prominent rabbis, served different purposes.
 
The common and perhaps definitive reason for those attached letters is to express the approval and even recommendation of leading religious authorities. The letters assure the reader that the book has been read by the rabbi and approved by him. In some cases, the haskama is needed to assure the readers that the book does not contain heretical opinions or censored passages.
 
However, over the course of the years, these haskamot also came to include statements by the authors that the book was their property and that no one was allowed to print the book without permission.
 
In 1490, the first haskama for a book written in Hebrew appeared in Sefer Ha-agur, a collection of halakhot written by Rav Ya’akov Landau (Naples, 15th century). It was signed by seven rabbis. These haskamot praised the book.
 
However, in 1518 a haskama for Eliyahu Ha-bachur Levita’s (1469–1549) book on Hebrew grammar, Sefer Ha-bachur, signed by the rabbi of Rome, included a threat of excommunication on those who might attempt to republish the book without permission, within ten years.
 
During the next decades, some haskamot extended the restricted period up to twenty-five years. These haskamot served the function of guaranteeing copyrights to the authors and publishers.
 
In summary:
 
The haskama developed from a recommendation to an expression of approval to a method of protecting the author's rights and finally to a form of self-censorship to protect the Jewish community against the church censorship and later to counteract kabbalistic, pseudo-messianic, and Haskala tendencies. [3]
 
Maharam of Padua
 
During the 16th century, one of the most famous stories dealing with the halakhic approach to copyrights occurred in Italy.
 
Rav Meir ben Yitzhak Katzenellenbogen (c. 1482–1565), known as the Maharam of Padua, was a leading rabbi in Italy as well as a printer.
 
The Maharam, together with his son, worked relentlessly on a new improved publication of the Rambam’s Mishneh Torah. This edition included the Maharam’s own commentary as well.
 
Due to a ban on Jewish printing, the Maharam was forced to partner with a Christian printer, Alvise Bragadini. The new edition of the Rambam was printed in 1550.
 
However, the Maharam’s former printing partner, Marc Antonio Giustiniani, upset that he wasn’t given the job, printed a similar edition, copying the Maharam’s format. He then sold it at a lower price.
 
At this point, Rav Katzenellenbogen turned to the newly appointed rabbi of Krakow, Rav Moses Isserles (the Rema), asking him to protect his rights.
 
The Rema ruled in the Maharam’s favor and issued a responsum requiring that Jews not buy Giustiniani’s edition. He even declared that anyone who bought those books would be excommunicated.
 
What are the sources and reason for the Rema’s ruling? There are two separate questions that are in the background of our discussion:
  1. Halakhic understanding of copyrights[4]
  2. Hasagat gevul, economic competition in Jewish law[5]
 
In today’s shiur, we will examine whether or not Halakha rules in favor of a free market allowing businesses to compete one against the other.
 
 
The Gemara[6] cites an Amoraic dispute regarding opening a competing mill on a street which already has one.
 
As it happens, there are two Amoraim of the same name that disagree on this matter. Rav Huna holds that the newcomer may not open a mill, as he will interfere with the first miller's livelihood. On the other hand, Rav Huna (son of Rav Yehoshua) permits the competition. Rashi explains the logic, which may be the basis for the free-market economy in Jewish thought:
 
The competitor may claim, "Whoever comes to me will come to me, and whoever comes to you will come to you."[7]
 
Rav Huna son of Rav Yehoshua limits his ruling to residents of the same city. However, a person living in a neighboring city may not set up shop in this city.
 
The Gemara raises an intermediate case: what if a resident of the same city, but from a different neighborhood, wishes to open a competing shop? The Gemara does not reach a conclusion, ending with a teiku.
 
However, if the outsider agrees to pay city taxes, the Gemara permits him to compete with the local residents.
 
Rav Yosef Karo rules according to Rav Huna son of Rav Yehoshua and accordingly permits competitive business for all residents of the same city.[8]
 
Regarding the outsider who pays municipal taxes, Rav Yosef Karo considers him a local resident, permitting him to compete with all of the city residents.
 
Thus, it seems that the normative pesak believes in a free-market economic policy and permits open competition.
 
Catching Another’s Fish
 
However, there is a ruling in the same passage that one may not set up a fishing net too close to another person's fishing net. This move, argues the Gemara, is prohibited, as it is akin to taking away the original fisherman’s fish. In other words, the fish in that area are viewed as already in the original fisherman's possession and the newcomer would be considered to be “stealing.”
 
Is this opinion accepted? Are there cases in which competition would be limited?
 
 
If Reuven has a store at the end of a cul-de-sac, and the remaining side is the entrance, and Shimon (a newcomer) wants to open a shop at the entrance, in such a manner that an outsider cannot go to Reuven without passing Shimon, it seems to me that Reuven may stop Shimon from opening a store as Rav Huna rules.[9]
 
Rav Yosef Karo remarks that the Ra'avya’s ruling is based on Rav Huna's opinion.[10]
 
As this opinion has been rejected by most Posekim, Rav Yosef Karo ignores this view and accordingly rules that all local competitors are unrestricted and may open rival businesses.
 
The Rema disagrees and holds that even Rav Huna [son of Rav Yehoshua] would prohibit opening a new business at the entrance of a cul-de-sac.
 
The reason for this is that the new business is not just a competition; rather it is interfering with another’s livelihood. [11]
 
In his responsum regarding the Maharam of Padua’s case, the Rema rules accordingly against the second publisher. His argument is that the Ra’avya’s ruling is applicable to our case, as the second publisher is directly hurting the livelihood of the Maharam and thus it is prohibited for him to sell the cheaper edition of the Mishneh Torah.
 
Copyright of Machzorim
 
In the 19th century an argument erupted regarding the printing of machzorim. In the year 1800, a machzor was printed in Rödelheim. The work was done by Wolf Heidenheim, who edited the macḥzor and published it with a Hebrew commentary and a German translation. The haskama at the beginning of the book prohibits others from printing the machzor for the next twenty-five years.
 
However, in 1822, using this very same format, the Dyhernfurth Machzor was printed.
Rav Mordekhai ben Avraham Benet (1753–1829), Chief Rabbi of Moravia, addresses this matter in a responsum.[12]
 
In it, he argues against the “power” of the haskamot and questions how the Rema, in his famous responsum, prohibits competition between printers located in different cities.
 
He explains that the Rema’s ruling (cited above) should not apply to this case. The reason for this is that the Rema’s ruling has to do with the fact that the rival printer had deliberately lowered the price of the Mishneh Torah for the purpose of harming the Maharam. Thus, the Rema’s responsum is limited to such situations. However, in the case of the machzorim, the competition is legitimate.
 

[1] Etz Chayim, Mishna Seder Mo’ed, Melekhet Ha-kotev 2, available at: https://hebrewbooks.org/pdfpager.aspx?req=20689&st=&pgnum=20.
[2] See Neil Weinstock Netanel and David Nimmer, From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print (Oxford Press).
[3] Encyclopedia Judaica, Vol. 7, pp. 1452-1453.
[4] See Nahum Rakover, Zekhut Ha-yotzerim Bi-mkorot Ha-mishpat Ha-Ivri (Sifriyat Ha-mishpat Ha-Ivri); as well as Techumin 6, pp. 169-184.
[5] For a complete summary of this topic, see Rav Simcha Krauss, “Hasagath Gvul,” The Journal of Halacha and Contemporary Society, Vol. 24, pp. 5-29.
[6] BT Bava Batra 21b.
[7] S.v. Shani Dagim.
[8] CM 156:5.
[9] Aviasaf as cited by the Mordekhai, Bava Batra 516.
[10] Beit Yosef, CM 156, s.v. Ve-katav Ha-Mordekhai.
[11]Darkhei Moshe 156:4.
[12] Responsa Parashat Mordekhai, CM 7.