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Wednesday, 25 January 2017

Book review: "From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print"

Copyright under Jewish law has attracted increasing attention in recent years. This interest has been echoed by the publication of Rabbi Nachum Menashe Weisfish’s
Copyright in Jewish Law (Feldheim, Jerusalem and New York, 2010), followed by Neil Netanel’s opus which is the subject of this review. While the sared subject matter of these two works appears to invite comparison, the objectives of the two authors are so entirely different as to render any comparison fruitless. The earlier work is that of a rabbi with an interest in orthodox rabbinical rulings on copyright and their relation to acts that are permissible or prohibited under Jewish law, while the latter is that of a copyright scholar with a wide-ranging interest in Jewish law as it has both shaped and been shaped by his principal subject of study. It is thus unsurprising that Weisfish’s book does not feature in Netanel’s bibliography, though the 2002 Hebrew-language Mishnat Zkhuyot ha-Yotzer, on which Weisfish’s 2010 text is based, and which is less accessible to English readers, does receive a citation.

To say that Netanel’s book is a work of substantial historical scholarship is an understatement. With contributions from David Nimmer — another noted copyright scholar with a long-standing interest in Jewish law and practice — this book reflects a wide variety of strands of Jewish legal analysis, inevitably embracing concepts of unfair competition and unjust enrichment, and firmly places some well-known Jewish copyright-related disputes within their historical and economic context with considerable sensitivity. For the reader who either wishes to take the subject further or to sample the quality of the author’s research, the compartmentalised bibliography and copious footnotes provide the necessary information. Readers unfamiliar with Hebrew terms will be assisted by a succinct glossary, as well as a tailpiece on the peculiarities of citation of Rabbinical sources through acronyms or the book titles.

Jewish law is a unique, ancient and perpetually evolving body of rules, maxims and principles that demands a great deal from those who pursue it. To the outsider, it may appear to consist of little other than muddle and inconsistency. Thus the territoriality of secular law may be contrasted with the tension between the universal applicability of Jewish rules and the doctrine of dina de-malkhuta dina (the integration into Jewish law of national statute law that is not explicitly contrary to Torah principles), by the absence of a firm demarcation of the line that divides rights in rem with those that are in personam, and by the potential for the random application of doctrines developed outside the field of commercial law, such as zeh ne’neh vezeh lo chaser (“this person benefits but that person doesn’t lose out”), a foundation for a fair use doctrine which, with good fortune, Neil Netanel might be persuaded to make the subject for a future book. On closer inspection, however, there is a pattern of conduct-regulation that can be discerned: a recurring theme of this pattern is that, in every legal system, a balance must be struck between achieving justice in the individual case and providing a general level of predictability and stability. Jewish law veers closer to the former than the latter, while secular legal systems lean in the other direction.

While this is essentially a history book, this reviewer particularly enjoyed the chapter on the present-day debate, within Jewish legal circles, as to the properparameters of application of the laws of copyright and as to their position within the hierarchy of commercial rules and social values in the Jewish world today. This chapter shows that, within Jewish communities too, one can identify the same confusions, contradictions, anxieties and aspirations that have characterised the great copyright debate in the wider world.

Turning to more mundane matters, the title and subtitle of this tome are somewhat at odds. This is because Maimonides died in 1204, around 250 years before the publication of Gutenberg’s movable-type Bible and more than 150 years after the earliest Chinese experiments with the same technology. However, the impact of both Maimonides and Microsoft upon the law and practice of their respective times and their subsequent influence cannot be denied, and all the world loves a good alliteration. It need scarcely be added that both Maimonides and Microsoft produced works that have been profitably reproduced and otherwise exploited by others — a point that makes the title’s reference to them particularly apposite.

To conclude, this is an excellent and enjoyable read, and it is proof that scholarship and pleasure can go hand in hand.

From Maimonides to Microsoft: the Jewish Law of Copyright Since the Birth of Print, by Neil Weinstock Netanel, Oxford University Press, 2016. ISBN: 9780195371994 is available here.

Review by Jeremy Phillips


Michael Factor said...

Been there. Done that.

Anonymous said...

OK, Mr. Factor, so you reviewed the book earlier. Very nice. Why the rude comment?

Is there an IP concept of dibs to first reviewer?

In any case, this is a useful review, especially since yours is behind a paywall.

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