Tuesday, November 28, 2006

Israeli Scholars of U.S & U.K. Copyright Law

The ancient Israelites were described as עם הספר (Am-HaSefer), the People of the Book, specifically the Torah. The holiday of שמחת תורה (Simchat Torah) celebrates this love of the book; on that day the last parsha of the Torah for the year is read וְזֹאת הַבְּרָכָה (V'Zot HaBerachah) from one scroll and the first parsha of the next year בְּרֵאשִׁית (Bereisheet) is then read from a second scroll to keep up an endless cycle of study. Intellectual property issues have been debated from a scriptual or Talmudic basis for many centuries. An interesting decree was issued by the Jewish community of Venice in 1623:

We have agreed to the reasonable and proper request of the worthy and honored Master Salamon Rossi of Mantua (may his Rock keep and save him) who has become by his painstaking labors the first man to print Hebrew music. He has laid out a large disbursement which has not been provided for, and it is not proper that anyone should harm him by reprinting similar copies or purchasing them from a source other than himself. Therefore, having seen the license granted by His Excellence, the Cattavero (may his glory be exalted), we the undersigned decree by the authority of the angels and the world of the holy ones, invoking the curse of the serpent’s bite, that no Israelite, wherever he may be, may print the music contained in this work in any manner, in whole or in part, without the permission of the above-mentioned author or his heirs for a period of fifteen years from this date. Nor is any Jew permitted under the terms of this decree to buy from any person, whether he be of our nation or not, any of these works without the permission of the above-mentioned author, who is to indicate by some special mark that he has consented to their sale by another party. Let every Israelite hearken and stand in fear of being entrapped by this ban and curse. And those who hearken will dwell in confidence and ease, abiding in blessing under the shelter of the Almighty. Amen.

Rossi’s decree was hardly the first, but it was the most colorful issued under Jewish law. Menachem Elon, in an interesting, though too brief, discussion of application of the Biblical hassagat gevul (trespass) principle to intellectual property, wrote:

[F]rom the 16th century onward... copyright became a defined legal right, protected by sanctions and partly based on the extended doctrine of hassagat gevul.
As in other legal systems, this development arose from the spread of printing and a need for the protection of printers’ rights. As early as 1518 an approbation (haskamah) to the Sefer ha-Bahur of Elijah Levita contained a warning, on pain of ban, against anyone reprinting the book within the following ten years. In the mid-15th century, when Meir Katzenellenbogen complained to Moses Isserles about the appearance of a rival edition of Maimonides’ Mishneh Torah (shortly after his work had been printed by Katzenllenbogen), Isserles responded by imposing a ban on anyone purchasing the Mishneh Torah from Katzenellenbogen’s competitor.... Thereafter it became customary to preface books with approbations containing a warning against trespass in the form of any unauthorized reprint of the particular book within a specified period.


THE PRINCIPLES OF JEWISH LAW 344-45 (Menachem Elon ed. 1975, Encyclopedia Judaica, Jerusalem). Elon also refers to a later recognition "of a full legal right in respect of one’s own spiritual creation." Id. at 346. See also Adin Steinsaltz, THE ESSENTIAL TALMUD 78-79 (1992) (discussing copyrights granted by various European communities in the mid-18th century for the printing of the Talmud and disputes that arose); J. David Bleich, Current Responsa, Decisions of Bate Din and Rabbinic Literature: Copyright, 5 The Jewish Law Annual 71 (1985); Rabbi Israel Schneider, Jewish Law and Copyright, ww.jlaw.com/Articles/copyright; Symposium: The Evolution and Impact of Jewish Law: Copyright, 1 U.C. Davis J. Int’l L. 3 Pol’y 83 (1985). Matthew Kozinets, Copyright and Jewish Law: The Dilemma of Change, 1 U.C. Davis J. Int’l L. & Pol’y 83 (1995); Samuel Petuchowski, Toward a Conceptual Basis for the Protection of Printing in a Post-Printing Era: Precedents in Jewish Law, 3 U. Balt. Intell. Prop. L. J. 47 (1995); Rabbi Israel Schneider from 21 Journal of Halacha and Contemporary Society, Pesach 5751 (Spring 1991)(available Here); Victor Hazan, The Origins of Copyright Law in Ancient Jewish Law, 18 Bull. Copr. Soc’y 23 (1971).


Now, though, we have a new phenomenon: Israeli scholars of early U.S. and U.K. copyright law, teaching at U.S. law schools. I want to mention two, Oren Bracha and Dotan Oliar. Fittingly, they are friends and have similar backgrounds. Both graduated from Tel Aviv University; both clerked on the Israeli Supreme Court; both were in the SJD program at Harvard; and, consistent with a true love of learning and the generosity of heart that one finds in the best, both have made their research freely available on the Internet. Professor Bracha teaches at the University of Texas Law School in Austin. Professor Oliar begins teaching at the University of Virginia Law School in January. What is so amazing about their scholarship is the depth of original research, the vast scope of their research, the tightness of their reasoning, their modesty in not arguing beyond the evidence (evidence which they have done more than others to uncover), and the fresh eyes and insights they bring to a field that has been well-dug into. In some ways, they represent the original instruments movement in classical music: doing original research into historical "styles" and stripping away centuries of bloated "interpretation" especially of the Romantic version. We do well to start with them and stay a very long time. (A third, Dr. Avishalom Tor, has done great work in law and economics and is an occasional co-author with Professor Oliar ).

Professor Bracha's works

I mentioned Professor Bracha in a December 14, 2005 posting on whether ideology matters in copyright. (See his response). His comprehensive dissertation "Owning Ideas: The History of Anglo-American Intellectual Property, is available here. His subsequent 131 page article, "The Ideology of Authorship Revisited," is available here. He also published "The Commodification of Patents 1600-1836: How Patents Became Rights and Why We Should Care" in 38 Loyola of Los Angeles Law Review 177 (2004).

Professor Oliar's Works

Professor Oliar's LLM thesis was an economic analysis of fair use and won the Harvard Law School Irving Oberman Award for Best Essay on the Internet and Law. Professor Oliar has at least two works available on the Internet. The first is "Making Sense of the Intellectual Property Clause: Promotion of the Progress of Science as Limitation on Congress's Intellectual Property Power." It is to be published at 94 Georgetown L.L. 1771, but is available here (with an abstract), downloadable on SSRN. The other, unpublished now (but available here) is a masterful review of the origins of Article I, section 8, clause 8.

1 comment:

Obed said...

This is an outstanding blog, unlike my law professors' who religiously update their blogs as if they are critical players in the legal world, yet NOT ONE comment is on any of their blogs. They criticized me for taking a year leave-of-absence to study in Yeshiva in Jerusalem, yet when a rich Jewish alum died they were all of a sudden interested in Jewish Law and wanted to know what to do to impress the family. If it weren't for honoring the dead, I would have reminded them how they thought Jewish Law is shallow. If only I had known about this blog when I was criticized for studying Jewish law. I should've gone to Cardozo. 1 more year of hell, but I'll certainly enjoy reading your blog and learning what I'm supposed to learn in Law School.