Lessons from Maharam Banet’s Clash With the Ḥatam Sofer Over Copyright in the Roedelheim Maḥzor * David Nimmer Roedelheim, on the outskirts of Frankfurt, was a well-known seat of Jewish printing. A famous prayer book, published there in 1800, gave rise to controversy between two famous rabbis of the early nineteenth century. At stake in the dispute were divergent views about copyright protection. Copyright law looms large today as a subject of academic examination. Scholars in the 2 3 law reviews published in the United States investigate it from every angle—economic, cultural, * © 2008 by David Nimmer, author, NIMMER ON COPYRIGHT (11 volumes, Matthew Bender & Co./LexisNexis, rev. ed. 2008); COPYRIGHT ILLUMINATED: REFOCUSING THE DIFFUSE U.S. STATUTE (Wolters Kluwer 2008); COPYRIGHT: SACRED TEXT, TECHNOLOGY, AND THE DMCA (Kluwer Law Int’l 2003). Past president, B’nai David-Judea Congregation, Los Angeles, California. I give hearty thanks to R’ Yitzchok Adlerstein for his painstaking guidance through the primary materials (and for saving me from going too far astray) and more hearty thanks to R’ Joel Zeff of Alon Shvut for weekly learning that likewise illuminated many of the issues confronted herein. Invaluable assistance in deciphering the responsa underlying this article came from Aryeh Peter, Ariel Strauss, and David Schultz. All German translations are courtesy of Scott Dewey. My profound thanks for the helpful comments supplied on the manuscript by Guido Calabresi, Ed Berger, Gil Graff, Joseph Lipner, Steve Lowenstein, Mark Rose, and Neil Wilkof—and, of course, my fellow student of Jewish law and collaborator, Neil Netanel. Wonderful assistance in tracking down books came from John Wilson of the UCLA Law Library and David Hirsch of the main library at UCLA. Thanks as well to those who scoured various libraries around the world for old volumes: Yuval Agmon, Ilan Graff, and Avi Nimmer. Note that quoted materials have been altered for the sake of consistency with the transliteration scheme followed in the balance of this article. 2 See, e.g., Paul Heald, Property Rights and the Efficient Exploitation of Copyrighted Fiction Bestsellers, 92 Minn. L. Rev. 1031 (2008); Michael Abramowicz, An Industrial Organization Approach To Copyright Law , 46 WM. & MARY L. REV. 33 (2004); William Landes & Richard Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325, 325-27 (1989). 3 See, e.g., Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. DAVIS L. REV. 1151 (2007); David Nimmer, Back from the Future: A Proleptic Review of the DMCA, 16 BERKELEY TECH. L.J. 855 (2001); Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 YALE L.J. 283, 288 (1996). An additional dimension here concerns the preservation of cultural assets. See Patty Gerstenblith, From Bamiyan to Baghdad: Warfare and the 1926598.9 03 historical,4 philosophical,5 feminist,6 religious.7 Within the latter domain, one can find Islamic8 and Christian 9 ruminations, as well as Jewish reflections.10 But missing from that latter discourse has been an intensive excavation of the rich responsa literature that rabbis, starting in the sixteenth century and proceeding until today, have devoted to the subject of author’s and printer’s rights. It is not hard to discern why the responsa have previously failed to attract interest among copyright scholars. Their historical circumstances can be opaque,11 their language a daunting 12 mixture of Hebrew and other Semitic tongues, and the chains of logic therein intricate and Preservation of Cultural Heritage at the Beginning of the 21st Century, 37 GEO. J. INT’L L. 245 (2006). 4 See, e.g., Lionel Bently, Different Layers of Lawmaking: National, Regional, and International: Copyright, Translations, and Relations Between Britain and India in the Nineteenth and Early Twentieth Centuries, 82 CHI.-KENT. L. REV. 1181 (2007); Mark Rose Public Domain: Nine-Tenths of the Law: The English Copyright Debates and the Rhetoric of the Public Domain, 66 LAW & CONTEMP. PROB. 75 (2003); Russ VerSteeg, The Roman Roots of Copyright, 59 MD. L. REV. 522 (2000). 5 See, e.g., Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L.J. 287 (1988); Kim Treiger-Bar-Am, Kant on Copyright: Rights of Transformative Authorship, 25 CARDOZO ARTS & ENT. L. J. 1059 (2008); Jean-Luc Piotraut, An Author's Rights-Based Copyright Law: The Fairness and Morality of French and American Law Compared, 24 CARDOZO ARTS & ENT. L. J. 549 (2006). 6 See, e.g., Dan L. Burk, Copyright and Feminism in Digital Media, 14 AM. U. J. GENDER SOC. POL’Y & L. 519, 521-22 (2006); Debora Halbert, Feminist Interpretations of Intellectual Property, 14 AM. U. J. GENDER SOC. POL’Y & L. 431, 433-34 (2006); Ann Bartow, Women in the Web of Secondary Copyright Liability and Internet Filtering, 32 N. KY. L. REV. 449, 449-50 (2005). 7 See, e.g., Thomas F. Cotter, Gutenberg’s Legacy: Copyright, Censorship, and Religious Pluralism, 91 CAL. L. REV. 323 (2003); Walter A. Effross, Owning Enlightenment: Proprietary Spirituality in the “New Age” Marketplace, 51 BUFF. L. REV. 483 (2003). 8 See, e.g., Heba A. Raslan, Shari’a and the Protection of Intellectual Property—The Example of Egypt, 47 IDEA 497 (2007); Amir H. Khoury, Ancient and Islamic Sources of Intellectual Property Protection in the Middle East: A Focus on Trademarks, 43 IDEA 151 (2003). 9 See, e.g., Roger Syn, Copyright God: Enforcement of Copyright in the Bible and Religious Works, 14 REGENT U.L. REV. 1 (2002). 10 See, e.g., Roberta Rosenthal Kwall, Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul, 81 NOTRE DAME L. REV. 1945 (2006); David Nimmer, Adams and Bits: Of Jewish Kings and Copyrights, 71 S. CAL. L. REV. 219 (1998). 11 See infra n.236. 12 See text accompanying note 216. 1926598.9 03 - 2 - drawn from a cloth vastly different from that sewn together in the usual copyright cases.13 Yet the reward is commensurate with the labor.14 Indeed, some remarkable parallels will be developed below, across legal cultures and across centuries.15 To introduce the domain matter briefly, responsa consist of “collections of questions on Jewish law asked by individuals or groups, and the responses given by rabbis”16 or, even more briefly, “written answers by particularly learned scholars to written questions regarding religious law.”17 Even those definitions may be too narrow, however, as some of the materials that follow evidence a sua sponte disquisition by the rabbi in question, rather than strictly an answer to a question.18 But the Hebrew name for a responsum, tshuva, at root connotes an “answer” (offered in “return” to an inquiry), so it serves for current purposes. The subject matter of tshuvot can be as broad as human experience itself.19 A 2008 book, subtitled “Responsa on Sephardic Life in the Early Modern Era,” ranges from the obligation to care for the poor in the lazaretto that the Venetian Republic maintained across the Adriatic Sea to the interest charged by those raising civet cats in Egypt to myriad questions regarding marital and family status, wherever Spanish Jews had been dispersed.20 The deficit in the copyright scholarly literature about rabbinic responsa addressing author’s rights is exactly what this article aims to redress. Neil Netanel, my colleague on the UCLA School of Law faculty, and I have set out to systematically analyze the pertinent 13 See text accompanying note 237. 14 As one eminent historian comments, These many thousands of rabbinical responsa do not strike modern scholars— disinclined as they are to venture into the thicket of technical disquisitions that were the bread and butter of the scholars of the fifteenth and sixteenth centuries, and which call for a technical training no longer easy to come by—as particularly inviting. And yet it is precisely these texts that give us an idea, not only of the kinds of problems that occupied the minds of the day, but also of their approach to the problems, their points of views, and the solutions they put forward. ROBERT BONFIL, JEWISH LIFE IN RENAISSANCE ITALY 149 (Anthony Oldcorn trans., U.C. Press 1994) . 15 See text accompanying note 587. 16 MATT GOLDISH, JEWISH QUESTIONS xi (Princeton Univ. Press 2008). 17 DEAN PHILLIP BELL, JEWS IN THE EARLY MODERN WORLD 151 (Rowen & Littlefield 2008). 18 See text accompanying note 333. 19 MATT GOLDISH, supra n.16, at xlix (“hygiene, diet, sexual relations, finances, religious activities . almost anything at all can be the subject of a question referred to a rabbi”). 20 See generally MATT GOLDISH, supra n.16. The purpose of this work is historical, the author noting that responsa “contain a great deal of material for the historian.” Id. at xlix. 1926598.9 03 - 3 - responsa, in a forthcoming book to be published by Oxford University Press.21 Professor Netanel has already produced the first installment, treating R’ Moses Isserles’ famous responsum regarding the permissibility, under Jewish law, of the Giustiniani house in Venice publishing an edition of the Rambam’s Mishneh Torah in competition with the one published earlier that same year by the rival Bragadini house, under the supervision of Rabbi Meir ben Isaac Katzenellenbogen, the Maharam of Padua.22 The Rema in that seminal ruling upheld copyright protection. This article analyzes the next salient episode of a publishing clash that gave rise to a tshuva—in this instance, multiple tshuvot. Arising out of publication of the Roedelheim maḥzor, the case of interest is Heidenheim v. Schmid. In this instance, the claimant published a holiday prayer book, which a Gentile rival later copied. In 1822, a responsum by R’ Mordekhai Banet favored the defendant; but, six months later, the Ḥatam Sofer issued a contrary opinion.