by Tova Reiter and Miriam Zami
In the fifth week of the program, we analyzed some critical modern and contemporary teshuvot and their approaches to our sugyot.
On Monday we read one of the first teshuvot about copyright law. In 1550, Maharam of Padua (Rabbi Meir ben Isaac Katzenellenbogen, 1482-1565) edits and publishes a new edition of Maimonides’ Mishneh Torah with his own commentary. Marc Antonio Giustiniani, a non-Jewish printer, publishes a cheaper version using Maharam’s edited text, which is certain to result in a loss for Maharam. Maharam writes to Rama (Rav Moshe Isserles, Poland, 1520 – 1572) asking him to halt distribution of the copycat edition.
Rama begins his seminal responsum by attempting to show that non-Jews are obligated in the same legal system as Jews are, and therefore he has legal jurisdiction over this Italian printer. He claims this case is an instance of gezeilah (robbery), which is one of the Seven Noahide Commandments, and Giustiniani can therefore be judged in Jewish courts.
Rama presents four arguments to rule against Giustiniani:
- Aviasaf (quoted in the Mordekhai) declares that even though we rule against Rav Huna’s position that one resident of a mavui (alleyway) can prevent a second resident from opening a competing mill, we follow Rav Huna in the case of a mavui satum (dead-end alleyway). Rama expands this case into a category of bari hezeikah (certain damage). So here, since Giustiniani is (deliberately) selling his edition for a cheaper price, it is certain that Maharam Padua will lose business and be unable to recoup his costs. This leads to an important question which Rama does not distinguish: Is this forbidden because he is intentionally ruining Maharam’s business, using predatory pricing (Giustinani has ample cash reserves), or just because it will definitely ruin his business? Rama also claims that we do not worry about creating eivah (animosity from non-Jews) in cases of commerce.
- Because Maharam of Padua is a great scholar, we invoke the Talmudic rule that the Jews are obligated to grant even a budding young scholar (tzurva merabannan) precedence in a market. (In this case, where the other seller is not Jewish, the most Rama can do is demand that Jews buy only from Maharam until his edition has sold out.)
- Even if Maharam was not a gadol b’Torah, the Jews should afford him initial market rights just because he’s Jewish–even if they will thereby take a loss.
- But Maharam is a talmid hakham, and we should always buy things from a talmid ḥakham to support him, and besides, Maharam’s edition is also qualitatively better.
It is important to note that Rama does not actually consider this a case of intellectual property theft, but rather a theft of the Maharam Padua’s initial investment of labor and printing. It seems that since they were operating in a goods-based economy, Rama views printing as any other commodity, not the way we currently conceive of books.
Rama institutes a Jewish communal boycott against Giustiniani, but the outcome is disastrous: The non-Jewish printer eventually convinces Papal authorities to burn all copies of the Talmud as well as a number of other commentaries, including many copies of the Mishneh Torah.
In this case, it was false to suppose that the Jews could maintain an independent internal economy. Do we conclude that any such distinction may lead to eivah? Would knowledge of this outcome have affected the Rama’s decision? If so, do we need to reconceptualize Ḥoshen Mishpat in our modern age?
We spent the rest of the week studying a number of responsa of Rav Moshe Feinstein (1895 – 1986) relating to hasagat gevul:
- (1960) A slaughterhouse closes, and soon after, two of the four owners open a slaughterhouse in the same location and under the same name, but with a new slaughterer replacing two previous employees. Rav Moshe says this deliberate attempt to cut out two employees is a violation of the prohibitions of yerida l’umanut and hipukh b’ḥarara, which are issues of issur. In addition, Rav Moshe says that there is ta’anat po’alim mamash, meaning the employees have a legitimate claim to financial damages.
- (1978) Must a community patronize a Jewish funeral home if it is unduly expensive?Rav Moshe considers the Jewish funeral home as taking advantage of consumers in a vulnerable emotional position, and therefore engaged in gezel. It is therefore incumbent upon the beit din to find others, even non-Jews, to compete at lower prices, and there is no issue of hasagat gevul. It is noteworthy that the prices and services were both agreed upon prior to the purchase, and yet Rav Moshe still declares this a case of theft and imposes an obligation to break the monopoly.
- (1958) A rabbi argues that a new shul opened near his own shrinks his minyan and lowers the value of his building. It is clear that this conception of shul rabbi is as owner of the shul, renting out a space to congregants who effectively act as consumers (very different than our modern conception of shul rabbis). Rav Moshe declares that any situation in which a new competitor decreases the earnings of the existing business (in this case the rabbi) is considered yerida l’umanut ḥavero. Causing a decrease in standard of living, is as if you are pasak l’gamrei, cutting off another’s livelihood completely. This is the first time we have seen the maintaining of a standard of social status as the basis for preventing competition. Rav Moshe dismisses the congregants’ personal complaints against the rabbi, and accuses the breakaway minyan as further transgressing lifnei iver, for leading others to harm the rabbi.
- (1960) A tutor writes to Rav Moshe that one of his clients replaced him without cause. Rav Moshe claims that if someone is in the category of ani hamehapekh, then whether or not they know about the intent of the first person to purchase, they are obligated to return the object. In this case, the replacement would not be released from any obligations to the original tutor based on his ignorance of the previous transaction. However, Rav Moshe does not think this is an actual case of ani hamehapekh, because he limits that prohibition to cases where the initial party has no other employment opportunities. [He deals with the Talmudic exceptions for Torah teachers by arguing those only allow a new teacher to set up near an existing teacher, but not to directly take his clients.] Interestingly, in this case Rav Moshe encourages the parties to work it out among themselves.
- (1979) Rav Moshe prohibits any new shul establishment near a particular standing shul for ten years, to protect the existing shul’s investment in expanding its facility. We have not seen any precedent for such a psak, and for reasons not entirely certain, Rav Moshe seems to be acting on the belief that he has full and effective authority over the market when it comes to shuls. This is the only time we read where Rav Moshe issued an injunction in advance. In essence he grants the firs shul an exclusive ten year license.
- (1956) May a man pursue a woman already nishtadekh to someone else? Rav Moshe uses this opportunity to create a unified theory of hasagat gevul. According to Rabbeinu Tam, the prohibition of ani hamehapekh applies in cases of mekher, commerce, but not to hefker/metzia, objects obtained for free. Radakh and Ramban disagree as to whether buying a discounted item is considered mekher or metzia.
Rav Moshe offers two overall theories of ani mehapekh, and argues that they underlie the sides of this maḥloket, respectively.
Theory I: The prohibition of ani hamehapekh rests on a right not to waste effort. Rav Moshe reads “hefker” as an object with no owner, which everyone therefore has equal rights to acquire. Although a person who is mehapekh has the right to not waste their effort, their effort does not necessarily give them the power to acquire the object, thereby eliminating everyone else’s prior rights to it. This depends on a relative comparison of the value of the opportunity and the efforts expended: if a similar opportunity is easily found elsewhere, then the loss of effort outweighs others’ loss of opportunity; if a similar opportunity is not easily found elsewhere, the loss of opportunity outweighs the loss of effort. On this logic a discount is identical to a “finding.”
Theory II: The prohibition of ani hamehapekh rests on treating effort as tantamount to acquisition. In a case of mekher, the seller is ready to sell the object, and therefore the first person’s efforts have basically acquired the object, so interloping is prohibited. Whereas in a case of a gift, the mehapekh does not change the status of the object just by expending effort to acquire it. The giver may decide at any point not to release the object with no ramifications. And in the case of hefker, the mehapekh also does not change the nature of the object just by expending effort to acquire it. On this logic a discounted object remains a mekher.
 For a full English discussion of the teshuvah of the Rama with historical context and consequences, see Neil W. Netanel, “Maharam of Padua v. Giustiniani: The Sixteenth-Century Origins of the Jewish Law of Copyright.” Houston Law Review, Vol. 44, 2007; From Maimonides to Microsoft: Jewish Copyright Law Since the Birth of Print, Neil W. Netanel and David Nimmer, eds., Oxford University Press, 2009; UCLA School of Law Research Paper No. 07-34. Available at SSRN: http://ssrn.com/abstract=1066285.