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 Shabbat Parashat Ki Tavo| 5767P'ninat MishpatPreventing the Publication of a Competing Sefer - Based on Halacha Psuka - vol. 15 - A Condensation of a Psak by Rav Elyashiv, Piskei Din Rabbaniim I - pp. 276-281
Case: The plaintiff spent years on manuscripts of a Rishon’scommentary on Tanach. As he prepared to publish, he discovered that the defendant was also planning to publish a similar edition of that commentary. The plaintiff wants to prevent the defendant from publishing since it would cause him great losses. He notes that he publicized his intentions for the project some time before. The defendant responded that he was unaware that the plaintiff was working on the project, as it was not effectively publicized, and he is not willing to withhold the work that he too labored on.
Ruling: The Ra’avya (see Mordechai, Bava Batra 516) says that one may not open a store in the entrance to a dead end street if a similar store exists on that street because people can get to the original store only by passing the new one. The Rama (Shut 10) applied this ruling regarding one who wanted to publish a new edition of the Rambam beneath the market price, made possible by the second publisher’s financial resources. He prohibited it until the supply of the first edition was exhausted because of definite losses to the first printer.
The Parashat Mordechai (7) writes that even the Rama only forbade the publication because of the second publisher’s intention to lower the price; otherwise one does not have to be overly concerned about the possibility of one affecting another’s livelihood. He, in fact, takes issue with the Rama’s ruling because the problem should exist only when one infringes on the location of the other. However, when the sefarim are published in different places, it is permitted. The Chatam Sofer (Shut, CM 41) adds that there is no form of thievery involved. The concept of a poor man attempting to pick up something [see last week’s article] does not apply, according to Rabbeinu Tam, because it is equivalent to an ownerless object and, according to Rashi, because the second person is not taking anything, only competing.
Yet, the Chatam Sofer says that regarding sifrei kodesh there must be a takanah (institution of special rules) because of the following circumstances. It is expensive to publish sefarim, and if people fear that “unfair” competition will cause them losses, they will not undertake the risk. This would cause a loss in Torah study. Therefore, the minhag developed to set the terms under which a competitor could publish and enforce them with a cherem (a ban which includes elements of a curse).
At first glance, the Chatam Sofer’s rationale applies to this case. However, the Divrei Chayim (II, 56) says that the minhag is to incorporate the cherem in a prominent rabbi’s approbation to the book. In this case, the plaintiff did not bother to ask a rabbi to ban competition. Therefore, there are no grounds to prevent the defendant from publishing his work.
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