Neil Netanel
University of California at Los Angeles School of Law

The Maharam of Padua v. Guistiniani: the Sixteenth-Century Origins of the Jewish Law of Copyright

Copyright scholars are almost universally unaware of Jewish copyright law, a rich body of copyright doctrine and jurisprudence that developed alongside common law and civil law copyright (and earlier publishers’ privileges) and that traces its origins to a dispute adjudicated some 150 years before modern copyright law is typically said to have emerged with the Statute of Anne of 1710. This essay, the beginning of a book project about Jewish copyright law, examines that dispute, the case of the Maharam of Padua v. Giustiniani. In 1550, Rabbi Meir ben Isaac Katzenellenbogen of Padua (known by the Hebrew acronym, the Maharam of Padua) produced a new edition of Maimonides’ classic work, The Mishneh Torah. The Maharam invested significant time, effort, and money in correcting printing errors and writing commentary on Maimonides’ text. Since Jews were forbidden to print books in sixteenth-century Italy, the Maharam arranged to have his edition printed by a Christian printer, Alvise Bragadini. Bragadini’s chief rival, Marc Antonio Giustiniani, responded by issuing a cheaper edition that both copied the Maharam’s annotations and included an introduction criticizing them. The Maharam then asked Rabbi Moses Isserles (known as the Rema of Cracow), European Jewry’s leading juridical authority of the day, to forbid distribution of the Giustiniani edition. In his ruling, the Rema was required to resort to first principles, partly because, at this early stage of print, such a dispute was a case of first impression and partly because Giustiniani, as a non-Jew, was not inherently subject to the intricate rules applicable to commercial relations among Jews. The Rema’s examination of possible legal justifications for according the Maharam an exclusive right touches upon some of the same issues that animate copyright jurisprudence today: Is copyright a property right or a limited regulatory prerogative? What is copyright’s rationale? What is its scope?  How can copyright be enforced against an infringer who is beyond the applicable legal authority’s reach?