Complete Shavuos Handout #1 - Vaccines, Immunization and Inoculation A Halachik and Hashkafic History and its Connection to Sinai #2 - The Fascinating Minhag of Trees and Flowers in Shul on Shavuos #3 - Limud Kaballah? (And the 'Strange' Two-Word code Found in the Siddur by Each Day of Sefirah) #4 - A Perusal of Rav Elyashiv's Teshuvos #5 - Yom Tov Halacha May One Lower Their StoveTop Gas-Oven on YT? What About Yom Tov Mode Oven? Do All Agree? #6 -Secrets of Megillas Rus

Article Published in AMI MAGAZINE in 2015 by this writer:

Shul Chronicles (#205)

Vaccines: A Selection of Its Halachic History

With the recent outbreak of measles (last year {2014} there were about 400 deaths per day), the subject and controversy surrounding vaccinations, while never quite dormant, once again resurfaced into the mainstream.

Potential contenders for the 2016 presidential race are being asked their views on the matter, and rabbanim are being asked by schools what, if anything, they need to or must do.

In this week’s column I will go through some of the halacha and history relating to vaccines. While a short column cannot do justice to this important subject, I hope it will at the very least serve to whet the readers’ appetitive and encourage the reader to research the matter in greater detail by perusing the source material provided at the end of this column.

I am keenly aware that many are quite passionate about this subject. Let me state that I am not a doctor. While I made the choice to vaccinate all my children right away, this column is simply to give a brief overview of some of the halachic matters this subject touches upon.

The Autobiography of Benjamin Franklin:

“In 1736 I lost one of my sons, a fine boy of four years old, by the smallpox taken in the common way. I long regretted bitterly and still regret that I had not given it to him by inoculation. This I mention for the sake of the parents who omit that operation, on the supposition that they should never forgive themselves if a child died under it; my example showing that the regret may be the same either way, and that, therefore, the safer should be chosen.”

Published article from this writer:

The Katuffel Kerfuffle

Take a poll on what is the most common Chanukah food staple, and latkes would come in at number one.

However, fried potatoes are a very recent edition to Chanukah.

While most assume that potatoes were first brought to Europe either by the 16^th century conquistadors, or by Sir Walter Raleigh, either way they only reached widespread use among European Jews during the mid 1700’s.

Indeed, the fact the most of Jews make the ha’adama blessing on potatoes (the blessing reserved for vegetables, as opposed to fruits) proves how late potatoes entered Jewish kitchens.

Briefly, some argue that the proper blessing should be shehakol, like it is for mushrooms. This is due to several factors of Jewish Law, and especially the fact that close to one thousand years ago the Aruch (an ancient book on Aramaic and Hebrew translations) uses an odd term to refer to these truffles: tartfulls (which many assumed was simply a transliteration of ‘truffle’).

Some asserted that the Aruch was referring to a kart’full, a term used in Yiddish for the lowly potato. While there are a number of reasons that most authorities argued with shehakol being the blessing for the potatoes, an important factor was the point that the Aruch could never have been referring to a potato, as he did not even know what they were back then!

This Day in Jewish History / Holy Roman Emperor Orders All Jewish Books - Except the Bible - Be Destroyed

A Jewish apostate named Johannes Pfefferkorn persuaded Maximilian I that all Jewish books, except the Bible, must be destroyed.

On August 19, 1509, Maximilian I, the Holy Roman Emperor, issued his “Imperial Confiscation Mandate,” or “Padua Mandate,” which ordered the rounding up and destruction of all Jewish books in circulation other than the Hebrew Bible. The following year, the emperor was pressured to put a stay on his order, but not before the collection effort had begun. Although the practical effects of the boycott were limited, the political and theological drama that surrounded the ban had profound implications for both Jews and Christians.

A Jewish apostate named Johannes Pfefferkorn was the one who lobbied Maximilian, whose realm as emperor comprised most of Central and parts of Western Europe, to act against the Jews. In a succession of texts with names like “Confession of the Jews” and “How the Blind Jews Observe Their Easter,” Pfefferkorn (1469-1523) had argued that contemporary Judaism was a perversion of the original faith established in the Bible, and that Jewish moneylenders were intent on undermining Christian society.

The overall message of Pfefferkorn’s pamphlets was that Judaism needed to be destroyed. This mission was to begin with the Talmud. Encouraged by his sister, Kunigunde, who had been lobbied by Pfefferkorn, the emperor instructed the Jews of his dominion to deliver any books opposing Christianity – that is, all Hebrew books but the Bible – to Pfefferkorn, for burning.

The project of confiscation began in Frankfurt and in several other German towns, including Mainz and Worms, in the fall of 1509. By the following spring, it is known, for example, that 1,000 Hebrew books had been turned in by Jews in the Judengasse, the local ghetto, in Frankfurt. It was only the intervention of Duke Erich of Braunschweig that persuaded the emperor to suspend the roundup: The duke had borrowed money from Jews in Frankfurt to repay a debt to Maximilian, and had pledged his jewels as collateral. Afraid that he would lose his property, the duke asked the emperor to prevail upon the Jews to give him more time to pay off his debt, in return for which they would get their sacred books back.

The books were indeed returned to the Jews, in June 1510, but the emperor ordered that the volumes not be removed from Frankfurt until he had formulated a conclusive opinion on the question. To that end, Maximilian asked four universities and three individual scholars to weigh in with legal and theological opinions of the Jews’ holy texts.

One of the four scholars was Johann Reuchlin (1455-1522), a remarkable student of Greek and Hebrew, whose intellectual efforts gave a major impetus to the Reformation. Reuchlin was the lone respondent to defend the Jews and their teachings. Ironically, although Reuchlin wrote in confidence to the emperor, with distribution of his report limited to a small group, one member of that group was Johannes Pfefferkorn, who felt compelled to respond, publicly. Pfefferkorn attacked not only Reuchlin, but also upped the incitement against the Jews, by endorsing the charges of blood libel and host desecration. These charges included his “revelation” of a new host desecration case in Berlin, one that resulted in the execution of 38 Jews, and the banishment of all Jews from Brandenburg.

The irony is that Pfefferkorn’s attack, and the subsequent polemic that surrounded it, much of it focusing on Reuchlin, led to a spirited public debate over many of the issues that divided the Catholic Church and the emerging humanist movement in Europe at the time. Allies of Pfefferkorn in the Dominican order caused charges of heresy to be brought against Reuchlin. As the online catalog of an exhibition on Johannes Reuchlin presented last year at the University of Illinois (Curated by Professors Valerie Hotchkiss and David H. Price) , explained, the legal proceedings that ensued “reveal some of the most unstable fault lines in European intellectual culture, some of which would shift violently as the century progressed. Reuchlin’s writings and the chain reaction they touched off mark the first time in European history that some Christians undertook an academic study of Judaism and its history.”

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Reuchlin divided Jewish writings into seven categories, and argued that only books that specifically libeled Jesus should be considered heretical. This meant that not only the Hebrew Bible, but also the Talmud, the Kabbalistic work the Zohar, and the medieval commentators should be permitted. He and Pfefferkorn waged an ongoing war of “dueling pamphlets,” going back and forth with their public argument.

Reuchlin was acquitted of the heresy charges several times, but each acquittal led his Dominican enemies to appeal to a higher authority. Finally, in 1520, Pope Leo X ruled against him, and Reuchlin was ordered to be silent. In the meantime, however, Reuchlin had introduced the study of Hebrew into European universities, and he himself translated the Psalms into Latin.

In 1521, Pfefferkorn wrote to Reuchlin, condemning him for the major challenge to the Church that the Reformation constituted (Martin Luther published his 95 Theses in 1517), and lamenting that the pope had not silenced Reuchlin earlier: “Yes, Reuchlin, if the Pope had done this to you eight years ago, Martin Luther and your disciples … would not have dared to wish or contemplate what they are now publicly pursuing to the detriment of the Christian faith. Of all this, you alone are the spark and the enabler, to drive the holy Church into error and superstition.”

Reuchlin died the following year, having repudiated Martin Luther and his movement. But his legal defense of Judaism and, more significantly, his academic study of its essential texts helped to give Christian Europe, which was increasingly hostile to the Jews, direct access to their teachings and a better understanding of their culture.

A woodcut showing Johann Reuchlin (kneeling) and wringing his hands while Johannes Pfefferkorn stands by him in a master's robes. Wikimedia Commons

Above is an image of Johaness Guttenberg.

Aside for -and as Tifferes Yisroel makes mention - his invention causing so much Torah to be studied, he also introduced the world, and perhaps Halacha to the issue of Copyright Law.

Below (in small print so that one may peruse in their own time) four articles this writer published in this topic. The Highlighted portions will be the ones we will quickly peruse:

“Steal This Article”

Copyrighting in Halachah

Part 1

The halachos of copyright begin with England’s current Prime Minister, David Cameron, something we will return at the close of this column.

The lack of clarity on the subject of copyrighting in halachah became obvious to me one day in shul. “What are you listening to?” I asked a bachur in the beis midresh one day.

Showing me his device, he demonstrated to me that virtually every song by every major Jewish singer in the past 30 years was contained on an object about the size of a credit card.

I wondered, “How long did it take you to put this together, and at what cost?”

He laughed. “I copied them straight from a friend’s device,” he explained nonchalantly.

This has become a common practice. One person uploads from his own CD collection, say, all of his Mordechai Ben David albums. So far so good (according to almost all poskim). He then passes them on to a friend. The friend adds his own favorite tracks and passes them on, until this young man in the beis midrash possessed—for free!—the entire repository of Jewish music, no doubt valued in the thousands of dollars.

Is this practice halachically sanctioned?

The challenge for rabbanim in seeking to convince the masses of this problem—which has only grown with the widespread use of the Internet—boils down to this: “Burning” music does not feel like theft. No one is pulling a mask over his face and holding up Eichler’s, chalilah. All he is doing is pressing a button.

“How bad could it be?” he may think to himself.

So why all the controversy? Is this not obviously theft?

While we will show that it is theft, or that it falls into other categories of issurim, it is by no means a simple matter.

The writers of the United States Constitution (1:8), l’havdil, were very careful in choosing their words when it came to this matter: “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Beginning in 1978, copyright law became a federal statute that the states could augment if they wished.

While the United States has every right to create its own set of laws—thereby fulfilling one of the Sheva Mitzvos Bnei Noach—poskim cannot arbitrarily create laws. Short of a new takanah, they can’t decide on their own what is considered right and wrong; they must find a precedent in halachah, sources and/or comparisons, in order to say that something is forbidden.

Until the 1500s, issues such as copyrighting were not relevant for obvious reasons. Before the printing press, although one could steal an actual item—say, a book—there was no way to reproduce it except to copy it by hand. With the invention of the printing press, it suddenly became possible for someone to rip off years of hard work by selling the exact same product, with no time invested. Today, we all have a veritable printing press at our disposal.

Still, you may be wondering, wouldn’t that be a clear case of theft too?

Well, consider this: If one purchases a CD, a tangible item, fairly, how could anything he does with it be considered stealing? True, a great deal of work went into composing and recording the songs, which indeed gives it its value and is the reason the person purchased it in the first place. But once the CD is sold, doesn’t the purchaser retain the full right to do with it as he pleases?

The underlying question is this: While a person can sell an idea or a concept, does he actually own it? And if so, does he retain it even after selling a tangible item that contains that idea?

Rav Nathenson, the great gaon and rav of Lemberg, deals with this justification in his Shu”t Shoel U’meishiv. A case was brought to him by Person A, who expended great effort to compile a new edition of the Shulchan Aruch, adding commentaries like the Pischei Teshuvah to the page. Then another person bought this new Shulchan Aruch—and started publishing it himself.

Seeking to defend his actions, Person B explained to the Shoel U’meishiv that when he purchased these volumes, he purchased a tangible item, with which he then had the right to do whatever he wished…even copying them for sale!

Person B argued further that whereas the original publisher had only printed small editions of his work, he printed large volumes. Now, most people had large editions of the Shulchan Aruch in any case and were not about to buy a second set just for the added commentaries. Therefore, he argued, Person A had suffered no proven loss. (Oy, everybody turns into a groisse lamdan when defending themselves!)

Rav Nathenson was less than impressed. He states that a work’s original author maintains full rights over his original ideas or work even after the sale of that item. To treat his work otherwise would be at minimum hasagas gvul (encroachment). At most, the original author maintains ownership to the extent that he need not even claim damages in order to stop another from using his concept, just as I could tell someone not to use my jacket even though I can’t prove that he may damage it in the future.

Rav Nathenson goes on to explain that even though we find some sefarim limiting their own rights for ten or 20 years, this is not due to the halachah sanctioning “theft” after a particular date. It is because the author of such a work has decided voluntarily to forgo his rights so that his work will live on after he has earned his money back. He has chosen limited ownership in order to make sure his work will continue to be published after his death. If he held on to his rights indefinitely, who would publish his sefarim again, especially if he did not have children who were interested in undertaking the project?

This logic that Rav Nathenson brings to the decisions of past rabbanim in choosing to allow their works to be copied at some future point, is bolstered by a recent article in the New Yorker (October 24; ‘Are Copyright Laws Too Strict'). There they explain that nowadays many secular books and songs have languished, never to be reissued due to the fact that no one can figure out who the heirs are to these works. Fearing a lawsuit, publishing houses dare not risk reintroducing these sometimes-celebrated works to the public. Our chachamim, as Rav Nathenson explained, had the foresight to solve this problem by limiting their copyright.

The Chofetz Chaim’s wife, Rebbetzin Freida Kagan, wrote in her Yiddish introduction to her husband sefer Ahavas Chesed that even after his death, only she and the family would retain the right to publish his sefarim in any country. (It should be noted that the Chofetz Chaim did state in his tzavaah that the Mishnah Berurah could be published by others if they followed certain conditions, but this allowance seems to have been unique to that work; see Rav Weifish’s Mishnas Zechuyos Hayotzer.)

The Shoel U’Meishiv is far from the only person to discuss this issue. Many have tackled this subject as it has always been a matter of controversy.

It is likely that the practice of giving a haskamah (rabbinical approbation) to a sefer, which began in the fifteenth century, arose due to the fact that rival publishing houses often put out a first edition of a sefer only to reprint it and sell it themselves. (Others point out that the use of haskamos became a widespread practice because—due again to the printing press—it was now easy for anyone, even the unworthy, to publish works.)

Some assert that the first time the word “haskamah” was used in the context of copyright protection was around 1600, a few decades after the death of Harav Yosef Karo, in a letter written by rabbanim on his posthumously published Bedek Habayis. In the letter, they forbade others to publish his works.

However, the first known copyright warning– then titled as a “ksav das” - on a sefer that expressly placed a cherem on any individual who unfairly reproduced it came some 80 years earlier to a sefer written by Rav Eliyahu Bachur for his dikduk trilogy. Signed by three rabbanim, it declares a “cherem against one who extends his hand into the expenditures and hard work of his fellow man…”

And in case the reader thinks I have forgotten the opening line of this column - David Cameron is the great, great, great grandson of Rav Bachur.

All this is just the tip of the iceberg.

To be continued…

Shul chronicles 202

Copyright in Halachah, Part 2

Confounding-ly Confusing Copyright Conundrums

The halachos of copyrighting begin with Bill Gates, something that we will return to at the close of this column.

One of the most important works on the Gemara written in the past century was the Kehillas Yaakov, authored by the Steipler Gaon, zt”l. So clear were his methods of questioning and answering and so enjoyable his approach that some people used his work to prepare shiurim—not always making proper attribution.

A close talmid of the Steipler was visiting another city when he heard a local maggid shiur deliver a wonderful shiur on a certain Talmudic passage. Everyone marveled at this maggid shiur’s brilliance. Well, everyone except this student, who knew that every word had been taken directly from the Steipler’s work. The student was incensed. How could someone blatantly steal and use the Torah insights of others?

The student approached the Steipler and told him what he had heard. The Steipler smiled and said, “I don’t mind if he takes what I write and says it in his name, so long as he doesn’t take what he writes and say it in my name!”

When we began the subject of copyrighting in halachah last week, I mentioned that Chazal do not openly discuss the issue. However, when it comes to the discussion of Torah ideas, we have a braisa at the end of Pirkei Avos¹ that urges us to state Torah thoughts in the name of the originator.

While the Tosefta² seems to allow the surreptitious discovery, e.g. hiding behind someone who speaking privately in learning, of another’s Torah thoughts and ideas for the benefit of the multitude, it never sanctioned false attribution.³ Nevertheless, many poskim argue that when it comes to the copyrighting of divrei Torah, we must take a more lenient approach.

For instance, the Chasam Sofer,⁴ who generally took a strong position on copyrighting, argues that since one mustn’t charge for a mitzvah, once he has recouped his original investment for the publication of his Torah thoughts, he should not be strict about enforcing his proprietary rights. As the Gemara notes, “Just as I was taught the Torah for free, so shall you teach it for free.”⁵

This is a great illustration of just how confusing this issue can be. For while the Chasam Sofer was generally strict about copyrighting—due either to a special takanah or to encroachment—he was quite lenient about the use of original Torah material.

At the opposite end, the Beis Yitzchak, the Netziv and others were more hesitant when it came to establishing guidelines for copyrighting in halachah; their understanding of the treatment of spiritual material such as chiddushei Torah was more stringent which they felt should have special protection.⁶

The general concept of copyrighting in halachah is no less confounding; with various works once again offering opposing views. One of the outstanding works on this topic is a sefer titled Mishnas Zechuyos Hayotzer (“The Laws of Intellectual Property Rights”) by Rav Nachum MenashaWeifish, who urges a strict policy on copyrighting. Then there is another work, playfully titled Lo Kol Hazechuyos Shemuros (“All Rights Not Reserved”), which presents a more lenient position. In fact, in a fitting tribute to the latter author’s views, I found his entire sefer online for free!

The confusion doesn’t stop there. Even the classic modern-day works on Choshen Mishpat (monetary law) have different takes on this subject—for example, Pischei Hachoshen (Vol. 5, ch. 9) and Emek Hamishpat (Vol. 4).

Rashi⁷ tells us that there is virtually no topic in halachah without machlokes, and the issue of copyrighting is a classic example of this truth. As we explained last week, until the invention of the printing press, copyright issues were apparently not discussed, either in the Gemara or in the Rishonim. The creation of the printing press opened the door for the many halachic opinions, suggestions and proofs that followed.

Secular law had a similar struggle. It was not until 1710 that England issued what is known as the Statute of Anne, the first official governmental copyright law. Until that time there were only agreements made between publishers, a laissez-faire free-market solution to the problem.

While even some poskim found the free-market solution a viable one,⁸ in the case of England, the policy protected publishers at the expense of authors. It was for this reason that the English Parliament intervened.

All this makes copyrighting, and copyright infringement, a most interesting historical study, where we can actually follow the development of secular law along with, l’havdil, halachah. For example, right now there is a debate developing in both the secular legal world and the halachic world regarding digital and Internet copyright.

In fact, using the term “l’havdil” may be inapt in this instance, for, as we shall see, many poskim⁹ argue that there is no concept of copyrighting and intellectual property in halachah and that the only avenue of enforcement available from a halachic perspective is dina d’malchusa dina, the principle that we follow the law of the land. This means, in effect, that England’s 1709 Statute of Anne and America’s Copyright Act of 1976 would both be halachic developments, or at least have an impact on halachah.

This concept is not lost on frum lawyers who have a vested interest in this topic from the perspectives of both secular law and halachah. The journal Intellectual Property Quarterly (Issue 1, 2011) had a wonderful article by Daniel Unger titled “Copyright Enforcement by Praise and Curse: The Colourful Development of Jewish Intellectual Property.” And the bi-annual Theoretical Inquiries in Law published a fascinating discussion of this topic, “Is Copyright Property? The Debate in Jewish Law,” by Neil W. Netanel and David Nimmer. The authors reference a forthcoming book about the history of copyright in halachah, whose working title is From Maimonides to Microsoft.

Microsoft?! Not too long ago Microsoft petitioned a beis din in Bnei Brak, requesting a ruling on how halachah views copyrighting. The information was needed for a case before an Israeli court; Israel presently enforces copyright laws based on an amalgam of British and American laws.

Why did Bill Gates’ company care what a beis din had to say, and why is this matter at the crux of copyrighting in halachah? The answer will have to wait until next week, when we will go back to the sixteenth and nineteenth centuries and recount two fascinating stories that helped form copyright halachah today: the printing of the Maharam Padua’s Rambam, and the Slavuta Shas vs. the Vilna Shas, respectively. By the end of this series we will return to the Microsoft case.

NOTES

1. The sixth chapter of Pirkei Avos is not part of the masechta proper but is a later addition taken from chapter 6 of Kallah and chapter 17 of Tanna d’Bei Eliyahu.
2. Bava Kama, ch. 7.
3. Rabbi Bleich, Contemporary Halachic Problems vol. II, p. 122.
4. Shu”t choshen mishpat 79.
5. Bechoros 29.
6. See Emek Hamishpat, Vol. 4, simanim 17-23.
7. Shabbos 139b.
8. See Parshas Mordechai and Bava Basra 22; cf. Chasam Sofer, who rejects the idea that the invisible hand of the market will solve the issue of copyrighting.
9. The Netziv, Beis Yitzchak, Rav Mordechai Benet in various haskamos and in his Parashas Mordechai.

Shul Chronicles 203

Three Stories

Copyright in Halachah, Part 3

The halachos of copyrighting begin with a Christian man named Marc Antonio Giustiniani, something that we will return to later in this column.

Before we get into that story, it would be helpful to take a chronological look at how copyrighting has been dealt with through the ages.

I. The Gemara

Many seek to prove that copyright protection exists naturally and implicitly within halachah based on preexisting halachic categories into which it fits, like gezel or hasagas gevul.¹ Yet all point out that an explicit case of copyrighting per se is not discussed anywhere in Chazal.

To my mind, however, there is one incident that comes awfully close. The Gemara in Yoma 84 tells us of a disease that strikes one in the teeth and ends, sometimes fatally, in the stomach.² Rav Yochanan was struck with this malady and went to a non-Jewish noblewoman who knew how to effect a cure. After paying for and receiving her tonic one Erev Shabbos, he asked her for the ingredients so that he could make it on Shabbos himself. She explained that she would not reveal this information because she would risk losing business if the secret became known to others. Rav Yochanan swore that he would safeguard the secret, and so she consented and revealed it to him.

Rav Yochanan then explained to her (for reasons we will not go into here) why he was not bound by his vow, and he immediately announced the formula for this secret concoction to his entire yeshivah.

Now, as it relates to copyright infringement (if it exists), it is worthwhile to consider that while the Gemara here, and in the Yerushalmi version, questions Rav Yochanan’s course of action in terms of his apparent false oath, it never mentions the fact that he stole, meaning that he stole the income she would have earned had her secret not been revealed money—which is essentially a violation of copyright!

While in modern parlance this was a (possibly permissible?) breach of “trade secret” protection and not a breach of copyright,⁶ in terms of a halachic basis they both share the same root (this may be true in secular law as well; see Duke Law Review, “Protecting Trade Secrets Through Copyright”).

The Gemara’s silence on this issue³ may support the many poskim who contend that halachah does not recognize copyright law (to be discussed, iy”H, next week). In fact, the Yerushalmi⁴ suggests that the noblewoman was inspired by what Rav Yochanan did with her secret formula and converted!

Now, one may say that little can be proven by this episode as far as copyrighting is concerned because, in the first place, a life was at risk; and in the second place, we are seeking a source for copyright guidelines between Jews, and this case involved Rav Yochanan, who was bound by halachah, and a noblewoman who was bound by other laws. Perhaps copyrighting, should it exist in halachah, would not affect our dealings with gentiles, in which case secular law would be the binding force.

Both of these points, however, are easily refuted. As for the first, the Shulchan Aruch⁵ rules that while one may steal to save a life, he must have in mind that he is obligated to pay the person back at a later time. Once again, in our gemara, while Rav Yochanan’s action is challenged for other reasons, the fact that he stole proprietary information, as well as the noblewoman’s future potential business—if indeed a halachic concern—was ignored!

As for the second point, if violating a copyright is, as some say, gezel,⁷ then why would the fact that this woman was not Jewish make any difference? Halachah is clear that stealing from a non-Jew is forbidden.⁸

II. Rav Yitzchak Alfasi (Rif)

The early rishon Rav Yitzchak Alfasi (d. 1033) tells the story of a man who stole his friend’s Torah notes, assuring him that he would return them as soon as he copied all of them!⁹ This sh’eilah is often cited as the first teshuvah relating to copyright law. While the Rif sides with the writer of the notes, there are any number of reasons to see this teshuvah as outside the purview of copyright.

As noted in Part 1, stealing a CD is different from copying one that one already owns. In this case, Person B actually stole a notebook belonging to Person A.

In addition, Rav Moshe Feinstein¹⁰ posits that when it comes to words of Torah, one has the right to say that his words—in this case notes—were not meant for public consumption since they might contain errors, or that they were meant for a particular audience. Rav Moshe himself did not allow his teshuvos to be translated out of concern that they would become accessible to those who would misinterpret them.

III. The Maharam Padua, Alvise Bragadini and Marc Antonio Giustiniani

Rav Meir ben Isaac Katzenellenbogen (d. 1565), known as the Maharam Padua, was one of the geonim of his time. Seeking to take advantage of the newly invented printing press, he decided to publish a new edition of the Rambam’s Yad Hachazakah that would include, among other additions, his own notes.

Most of the major publishers at that time were Christians¹¹ who had served the Jews well with their publishing houses. Initially, the Maharam wanted the major publishing house of Marc Antonio Giustiniani to put out his Rambam. Before a deal was finalized, the Maharam decided that another non-Jewish publishing house, that of Alvise Bragadini, offered a better deal.

Giustiniani was none too pleased and responded by publishing his own edition of the Rambam, at a cheaper price…including the Maharam’s commentary!

Rav Moshe Isserles, the Rama, was asked to decide the case.¹² In a much-celebrated teshuvah that discusses issues ranging from the relationship between the prohibition against stealing as one of the sheva mitzvos Bnei Noach’s and its prohibition in halachah, as well as halachic rulings that may result in animosity toward the Jewish nation, the Rama sides with the Maharam. He explains that even as a non-Jew, Giustiniani violated halachic fair business practices.

The suggestion that, say, hasagas gevul can be applied to non-Jews was challenged by the Rama’s contemporary the Maharshal.¹³

Eventually this famous protest of the Maharam led to the proliferation of haskamos and cheramim found in many sefarim that were published over the next few hundred years. Indeed, the Maharam led the charge for these haskamos, although it is unclear if this was before or after his Rambam went to print.

But all of the above pales in comparison to the painful battle over copyrighting that was to come—the nineteenth-century dispute over halachic copyright, a mêlée that hit the frum world like a storm.

Alas, this is a story that will have to wait until next week.

To be continued…

NOTES

1. Chasam Sofer, Rav Zalman Nechemia Goldberg in Techumin Vol. 6, Noda B’Yehudah, et al.
2. See Shulchan Aruch, Orach Chaim, siman 328.
3. A common tool among poskim in deciding halachah; see, for example, Igros Moshe, Chosen Mishpat 2:66.
4. Shabbos, Shemoneh Sheratzim.
5. (Siman 359.
6. As pointed out to me by Professor Nimmer of UCLA.
7. See Igros Moshe 4:44:19, end.
8. See Bava Kama 113.
9. In his Shu”t HaRif, 133.
10. Ibid.
11. See my feature on the history of the chapter divisions in the Torah in Ami’s Shavuos 5774 issue.
12. shu”t Rama, siman 10.
13. Shu”t 36.

Shul Chronicles 200 (207)

Slavuta vs. Vilna

Copyrighting in Halachah, Part 4

The halachos of copyright begin with the battles of the chassidim and the misnagdim, something that we shall return to momentarily.

It is now time for us to return to, and conclude, the subject of copyrighting in halachah. But first, a brief recap of some of the important material we have covered thus far.

While the Torah forbids stealing and certain business practices deemed unfair, once a buyer purchases something, he retains full ownership. This means that he can, for example, lend his purchased sefer to a friend although the friend never paid any money to the author.

This all seemed simple enough, however after the invention of the printing press it suddenly became possible to copy and mass-produce a purchased sefer in a matter of days, apparently depriving the original author or publisher of untold profits.

Does one really have the right to do anything he wishes with an item once he has purchased it? Does halachah recognize copyright law?

In previous columns we gave background on some of the famous cases surrounding this issue, as well as some of the sources marshalled to address it. We also discussed how the secular world is dealing with these same issues.

One result of this problem was the practice of giving a haskamah, or rabbinic approbation, for a sefer, which served, among other purposes, to defend the copyright of the author.

This week we will turn to one of the more famous copyright battles, and we will also revisit the story of Microsoft asking a beis din in Bnei Brak for a ruling on how the Torah sees copyright law.

By the turn of the nineteenth century, the Talmud had been printed several times since the early Bamburg edition, largely unchanged. Most of the changes that did occur from one edition to the next had to do with comparative texts, commentaries and censorship. For example, many were so fearful of arousing the ire of non-Jewish censors that in some editions, every occurrence of the word “goy” or “min” (“nonbeliever”) was changed to “akum”—an acronym for “ovdei kochavim u’mazalos.” This term seemed far less likely to offend the neighbors because it referred to pagan beliefs and worship of the stars, which the gentiles of the time did not practice.

Remarkably, however, even the term “akum” was not a perfect shield; some Christians believed it stood for “ovdei Yushke u’Miriam” [Mary]!

Some censorship efforts led to bizarre readings. For instance, the word “min,” in addition to meaning “nonbeliever,” can also mean “type” or “species.” It has been reported that some editions of Shas¹ were so imprudent about censorship guidelines that they would change “min kitniyos” (meaning “a type of legume”) to “akum kitniyos”! And sometimes entire sections of the Gemara were removed so as not to offend.²

At that time, it was forbidden even to own a Talmud in many cities, and when Rav Yonasan Eibishitz received permission to print one, he could not use the title “Gemara” or “Talmud.” Tractate Brachos, for example, was titled Hilchos Brachos. In Akiva Aaronson’s excellent People of the Book (Feldheim), he states that Rav Eibishitz received this permission in 1734, while he was in Prague. We should point out, however, that he did not arrive in Prague until some 20 years later. Indeed, 1734 was the year Rav Eibishitz, then 21 years old, assumed his first role as dayan in Brody, some 500 miles west of Prague. Most likely it was some time later when this edition was published.

Because of these difficulties in printing newer editions of Shas, there was widespread excitement when the Slavuta publishing house began printing its new editions of Gemara between 1801 and 1817. Although the Slavuta edition was not immune to some strange editorial decisions, the work that went into it was impressive.

The Slavuta publishing house was founded by the son of the holy Rav Pinchas of Koritz, who was a student of the Baal Shem Tov. His son, Reb Moshe Shapiro, along with his two children, Reb Shmuel and Reb Pinchos, built up a well-respected establishment that published many holy works to great acclaim. However, nothing they worked on was as daunting as printing the entire Shas.

Because of this, in addition to receiving blessings from some of the great Rebbes, such as the Baal HaTanya and Rav Levi Yitzchak of Berdicthuv, Slavuta also received haskamos that gave it a 25-year copyright protection. This meant that no one could print a newer edition of Shas until the Slavuta Shas had been on the market for 25 years. This was not simply a copyright on the work of Slavuta itself but covered anyone seeking to publish a full Talmud of his own.

So holy were these men that it is said they would dip their tools and the printing press in the mikvah before using them to publish pages of the Talmud!

But soon this printing, and the rival edition to follow, would reignite the battle between some chasidim and misnagdim, a battle that had largely faded. The new machlokes not only reawakened old conflicts but, as we shall see, served as perhaps the most important catalyst for teshuvos and opinions on copyrighting in halachah, drawing the attention of the greatest poskim of the generation.

In 1835, a few years before the Slavuta copyright would officially end, the Romm Publishing House (later, Romm Widow and Sons Publishing), headed by Reb Menachem Mann Romm, began printing its own edition of the Talmud in Vilna, which is known to this day as the Vilna Shas. It had even more improvements than the Slavuta Shas—for example, on the pages of the Rif—and began selling fast.

The Shapiros pointed out to the major poskim of the day that the Slavuta Shas was still protected by its 25-year copyright and that the Romm brothers had no right to publish a competing edition. Scores of teshuvos were written on this issue, which caused great rifts in the community.

The teshuvos discuss matters such as copyrighting and the right to prevent a publisher from working independently on similar material (Romm, after all, had not copied the Slavuta Shas). One of the Romm brothers’ arguments was that the Slavuta’s 25-year ban was intended only to protect its own first edition, which had already sold out; it was now 1835, and the Slavuta Shas was already in its third printing.

While the Chasam Sofer and others defended the Romms, it was only after Rav Akiva Eiger agreed that they had the right to publish their own edition of Shas that the initial machlokes was laid to rest.

Sadly, however, bitterness ensued. The Slavuta publishing house came to a tragic end, and the Vilna Shas, which became the more popular one, is still the standard edition used today.

And far from solving the complexities of copyright law, the issue only became more ambiguous. Notably, the Chasam Sofer (Shu’t 57 and 79, etc.) and Rav Mordechai Benet (d. 1830, Parashas Mordechai 7, 8) were strongly divided on the issue. Rav Benet rejected the theory that certain copyright infringements are in violation of hasagas gvul. He further argued regarding how far copyright protection, if it exists at all, should extend. Rav Benet advocated for a laissez-faire system, such as Ezra Hasofer’s allowance of free trade among merchants (Bava Basra 22), which would allow publishers to work out this issue among themselves. The Chasam Sofer (depending on which of his many teshuvos one reads –compare his teshuvos regarding the Vilna Shas to those regarding the Wolf Heidenheim siddurim; see Daniel Unger in ‘Intellectual Property Quarterly’), is much stricter, arguing that without some type of official protection, no one would invest the time and effort to publish sefarim (or, for that matter, musical albums).

Several years ago Microsoft wanted to put out Pashkivillim [(posters, often glued to the walls , and found most frequently today in charedi neighborhoods in Israel) forbidding the copying of its computer programs for free, thinking that this would stop what it believed to be mass infringement of its copyright protection among chareidim. The company turned to a beis din in Bnei Brak seeking the Torah view on copyrighting.

Amazingly, the beis din stated that until Microsoft showed that it represented Jewish interests, it would not issue a ruling. Steve Ballmer, the CEO of Microsoft until this year, and a Jew, was therefore named the disputant so that the beis din would hear the case! It is my understanding that the beis din did not respond as strongly on the matter as Microsoft had hoped. (See the forthcoming work, From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print, Netanel/Nimmer, Oxford Press)

This series has been intended only to inform but not to give a comprehensive review of copyright law in halachah, about which entire sefarim have been written. One thing is certain, however—no one should think about copying intellectual property without first speaking to a moreh horaah, and without considering how he would feel if he were the producer of the work rather than the consumer.

NOTES

1. See ArtScroll/Mesorah publication Avraham Yagel Yitzchak Yeranen.
2. For example, Bava Kama 113b; see ibid.

FROM THE WEBSITE OF THE NCBI:

For many centuries, smallpox devastated mankind. In modern times we do not have to worry about it thanks to the remarkable work of Edward Jenner and later developments from his endeavors. With the rapid pace of vaccine development in recent decades, the historic origins of immunization are often forgotten. Unfortunately, since the attack on the World Trade Center on September 11, 2001, the threat of biological warfare and bioterrorism has reemerged. Smallpox has been identified as a possible agent of bioterrorism (1). It seems prudent to review the history of a disease known to few people in the 21st century.

Edward Jenner (Figure ​(Figure11) is well known around the world for his innovative contribution to immunization and the ultimate eradication of smallpox (2). Jenner's work is widely regarded as the foundation of immunology—despite the fact that he was neither the first to suggest that infection with cowpox conferred specific immunity to smallpox nor the first to attempt cowpox inoculation for this purpose.

Edward Jenner (1749–1823). Photo courtesy of the National Library of Medicine.

SMALLPOX: THE ORIGIN OF A DISEASE

The origin of smallpox as a natural disease is lost in prehistory. It is believed to have appeared around 10,000 bc, at the time of the first agricultural settlements in northeastern Africa (3, 4). It seems plausible that it spread from there to India by means of ancient Egyptian merchants. The earliest evidence of skin lesions resembling those of smallpox is found on faces of mummies from the time of the 18th and 20th Egyptian Dynasties (1570–1085 bc). The mummified head of the Egyptian pharaoh Ramses V (died 1156 bc) bears evidence of the disease (5). At the same time, smallpox has been reported in ancient Asian cultures: smallpox was described as early as 1122 bc in China and is mentioned in ancient Sanskrit texts of India.

Smallpox was introduced to Europe sometime between the fifth and seventh centuries and was frequently epidemic during the Middle Ages. The disease greatly affected the development of Western civilization. The first stages of the decline of the Roman Empire (ad 108) coincided with a large-scale epidemic: the plague of Antonine, which accounted for the deaths of almost 7 million people (6). The Arab expansion, the Crusades, and the discovery of the West Indies all contributed to the spread of the disease.

Unknown in the New World, smallpox was introduced by the Spanish and Portuguese conquistadors. The disease decimated the local population and was instrumental in the fall of the empires of the Aztecs and the Incas. Similarly, on the eastern coast of North America, the disease was introduced by the early settlers and led to a decline in the native population. The devastating effects of smallpox also gave rise to one of the first examples of biological warfare (1, 7). During the French-Indian War (1754–1767), Sir Jeffrey Amherst, the commander of the British forces in North America, suggested the deliberate use of smallpox to diminish the American Indian population hostile to the British. Another factor contributing to smallpox in the Americas was the slave trade because many slaves came from regions in Africa where smallpox was endemic.

Smallpox affected all levels of society. In the 18th century in Europe, 400,000 people died annually of smallpox, and one third of the survivors went blind (4). The symptoms of smallpox, or the “speckled monster” as it was known in 18th-century England, appeared suddenly and were devastating. The case-fatality rate varied from 20% to 60% and left most survivors with disfiguring scars. The case-fatality rate in infants was even higher, approaching 80% in London and 98% in Berlin during the late 1800s.

The word variola was commonly used for smallpox and had been introduced by Bishop Marius of Avenches (near Lausanne, Switzerland) in ad 570. It is derived from the Latin word varius, meaning “stained,” or from varus, meaning “mark on the skin.” The term small pockes (pocke meaning sac) was first used in England at the end of the 15th century to distinguish the disease from syphilis, which was then known as the great pockes (8).

VARIOLATION AND EARLY ATTEMPTS OF TREATMENT

It was common knowledge that survivors of smallpox became immune to the disease. As early as 430 bc, survivors of smallpox were called upon to nurse the afflicted (9). Man had long been trying to find a cure for the “speckled monster.” During medieval times, many herbal remedies, as well as cold treatment and special cloths, were used to either prevent or treat smallpox. Dr. Sydenham (1624–1689) treated his patients by allowing no fire in the room, leaving the windows permanently open, drawing the bedclothes no higher than the patient's waist, and administering “twelve bottles of small beer every twenty-four hours” (10).

However, the most successful way of combating smallpox before the discovery of vaccination was inoculation. The word is derived from the Latin inoculare, meaning “to graft.” Inoculation referred to the subcutaneous instillation of smallpox virus into nonimmune individuals. The inoculator usually used a lancet wet with fresh matter taken from a ripe pustule of some person who suffered from smallpox. The material was then subcutaneously introduced on the arms or legs of the nonimmune person. The terms inoculation and variolation were often used interchangeably. The practice of inoculation seems to have arisen independently when people in several countries were faced with the threat of an epidemic. However, inoculation was not without its attendant risks. There were concerns that recipients might develop disseminated smallpox and spread it to others. Transmission of other diseases, such as syphilis, via the bloodborne route was also of concern.

Inoculation, hereafter referred to as variolation, was likely practiced in Africa, India, and China long before the 18th century, when it was introduced to Europe (9). In 1670, Circassian traders introduced variolation to the Turkish “Ottoman” Empire. Women from the Caucasus, who were in great demand in the Turkish sultan's harem in Istanbul because of their legendary beauty, were inoculated as children in parts of their bodies where scars would not be seen. These women must also have brought the practice of variolation to the court of the Sublime Porte (4, 10).

Variolation came to Europe at the beginning of the 18th century with the arrival of travelers from Istanbul. In 1714, the Royal Society of London received a letter from Emanuel Timoni describing the technique of variolation, which he had witnessed in Istanbul. A similar letter was sent by Giacomo Pilarino in 1716. These reports described the practice of subcutaneous inoculation; however, they did not change the ways of the conservative English physicians.

It was the continued advocacy of the English aristocrat Lady Mary Wortley Montague (Figure ​(Figure22) that was responsible for the introduction of variolation in England (10). In 1715, Lady Montague suffered from an episode of smallpox, which severely disfigured her beautiful face. Her 20-year-old brother died of the illness 18 months later. In 1717, Lady Montague's husband, Edward Wortley Montague, was appointed ambassador to the Sublime Porte. A few weeks after their arrival in Istanbul, Lady Montague wrote to her friend about the method of variolation used at the Ottoman court. Lady Montague was so determined to prevent the ravages of smallpox that she ordered the embassy surgeon, Charles Maitland, to inoculate her 5-year-old son. The inoculation procedure was performed in March 1718. Upon their return to London in April 1721, Lady Montague had Charles Maitland inoculate her 4-year-old daughter in the presence of physicians of the royal court.

Lady Mary Wortley Montague (1689–1762). Photo courtesy of the National Library of Medicine.

After these first professional variolation procedures, word of the practice spread to several members of the royal family (11). Charles Maitland was then granted the royal license to perform a trial of variolation on six prisoners in Newgate on August 9, 1721. The prisoners were granted the king's favor if they submitted to this experiment. Several court physicians, members of the Royal Society, and members of the College of Physicians observed the trial. All prisoners survived the experiment, and those exposed to smallpox later proved to be immune. In the months following this very first trial, Maitland repeated the experiment on orphaned children, again with success. Finally, on April 17, 1722, Maitland successfully treated the two daughters of the Princess of Wales. Not surprisingly, the procedure gained general acceptance after this last success.

THE SPREAD OF VARIOLATION

In Europe, where the medical profession was relatively organized, the new methods of variolation became known quickly among physicians. Since there was also a demand for protection against smallpox, physicians soon began the variolation procedure on a massive scale. Although 2% to 3% of variolated persons died from the disease, became the source of another epidemic, or suffered from diseases (e.g., tuberculosis and syphilis) transmitted by the procedure itself, variolation rapidly gained popularity among both aristocratic and common people in Europe. The case-fatality rate associated with variolation was 10 times lower than that associated with naturally occurring smallpox. In the 1750s more European princes died of smallpox, giving further impetus for the use of variolation (3). Among those variolated were Empress Marie-Therese of Austria and her children and grandchildren, Frederick II of Prussia, King Louis XVI of France and his children, and Catherine II of Russia and her son. King Frederick II of Prussia also inoculated all his soldiers. In fact, variolation was widely practiced in Europe until Jenner's discovery.

The regular practice of variolation reached the New World in 1721 (9). Under the guidance of the Rev. Cotton Mather (1663–1728) and Dr. Zabdiel Boylston (1679–1766), variolation became quite popular in the colonies. Mather, a graduate of Harvard College, was always very interested in science and medicine. When a ship from the West Indies carried persons sick with smallpox into Boston in 1721, an epidemic broke out in Boston and other parts of Massachusetts. Mather wrote a cautious letter recommending immediate variolation. However, he persuaded only Dr. Boylston. With Mather's support, Boylston immediately started a variolation program and continued to inoculate many volunteers, despite many adversaries in both the public and the medical community in Boston. As the disease spread, so did the controversy around Mather and Boylston (12). At the height of the epidemic, a bomb was thrown into Mather's house.

To make their point, Mather and Boylston used a statistical approach to compare the mortality rate of natural smallpox infection with that contracted by variolation. During the great epidemic of 1721, approximately half of Boston's 12,000 citizens contracted smallpox. The fatality rate for the naturally contracted disease was 14%, whereas Boylston and Mather reported a mortality rate of only 2% among variolated individuals (12). This may have been the first time that comparative analysis was used to evaluate a medical procedure.

During the decades following the 1721 epidemic in Boston, variolation became more widespread in the colonies of New England. In 1766, American soldiers under George Washington were unable to take Quebec from the British troops, apparently because of a smallpox epidemic that significantly reduced the number of healthy troops (13). The British soldiers were all variolated. By 1777, Washington had learned his lesson: all his soldiers were variolated before beginning new military operations (14, 15). The success of variolation in the New World was not without effect on Europe. In fact, the rapid adoption of variolation in Europe can be directly traced to the efforts of Cotton Mather during the Boston smallpox epidemic in 1721. Although many British physicians remained skeptical even after Mather's success, the data he had published were eventually influential. Variolation was subsequently adopted in England and spread from there throughout Western Europe.

In 1757, an 8-year-old boy was inoculated with smallpox in Gloucester (4); he was one of thousands of children inoculated that year in England. The procedure was effective, as the boy developed a mild case of smallpox and was subsequently immune to the disease. His name was Edward Jenner.

EDWARD JENNER

Edward Jenner was born on May 17, 1749, in Berkeley, Gloucestershire, the son of the Rev. Stephen Jenner, vicar of Berkeley. Edward was orphaned at age 5 and went to live with his older brother. During his early school years, Edward developed a strong interest in science and nature that continued throughout his life. At age 13 he was apprenticed to a country surgeon and apothecary in Sodbury, near Bristol (16). The record shows that it was there that Jenner heard a dairymaid say, “I shall never have smallpox for I have had cowpox. I shall never have an ugly pockmarked face.” It fact, it was a common belief that dairymaids were in some way protected from smallpox.

In 1764, Jenner began his apprenticeship with George Harwicke. During these years, he acquired a sound knowledge of surgical and medical practice (10). Upon completion of this apprenticeship at the age of 21, Jenner went to London and became a student of John Hunter, who was on the staff of St. George's Hospital in London. Hunter was not only one of the most famous surgeons in England, but he was also a well-respected biologist, anatomist, and experimental scientist. The firm friendship that grew between Hunter and Jenner lasted until Hunter's death in 1793. Although Jenner already had a great interest in natural science, the experience during the 2 years with Hunter only increased his activities and curiosity. Jenner was so interested in natural science that he helped classify many species that Captain Cook brought back from his first voyage. In 1772, however, Jenner declined Cook's invitation to take part in the second voyage (4).

Jenner occupied himself with many matters. He studied geology and carried out experiments on human blood (17). In 1784, after public demonstrations of hot air and hydrogen balloons by Joseph M. Montgolfier in France during the preceding year, Jenner built and twice launched his own hydrogen balloon. It flew 12 miles. Following Hunter's suggestions, Jenner conducted a particular study of the cuckoo. The final version of Jenner's paper was published in 1788 and included the original observation that it is the cuckoo hatchling that evicts the eggs and chicks of the foster parents from the nest (17, 18). For this remarkable work, Jenner was elected a fellow of the Royal Society. However, many naturalists in England dismissed his work as pure nonsense. For more than a century, antivaccinationists used the supposed defects of the cuckoo study to cast doubt on Jenner's other work. Jenner was finally vindicated in 1921 when photography confirmed his observation (19). At any rate, it is apparent that Jenner had a lifelong interest in natural sciences.

While Jenner's interest in the protective effects of cowpox began during his apprenticeship with George Harwicke, it was 1796 before he made the first step in the long process whereby smallpox, the scourge of mankind, would be totally eradicated. For many years, he had heard the tales that dairymaids were protected from smallpox naturally after having suffered from cowpox. Pondering this, Jenner concluded that cowpox not only protected against smallpox but also could be transmitted from one person to another as a deliberate mechanism of protection. In May 1796, Edward Jenner found a young dairymaid, Sarah Nelms, who had fresh cowpox lesions on her hands and arms (Figure ​(Figure33). On May 14, 1796, using matter from Nelms' lesions, he inoculated an 8-year-old boy, James Phipps. Subsequently, the boy developed mild fever and discomfort in the axillae. Nine days after the procedure he felt cold and had lost his appetite, but on the next day he was much better. In July 1796, Jenner inoculated the boy again, this time with matter from a fresh smallpox lesion. No disease developed, and Jenner concluded that protection was complete (10).

The hand of Sarah Nelms. Photo courtesy of the National Library of Medicine.

In 1797, Jenner sent a short communication to the Royal Society describing his experiment and observations. However, the paper was rejected. Then in 1798, having added a few more cases to his initial experiment, Jenner privately published a small booklet entitled An Inquiry into the Causes and Effects of the Variolae Vaccinae, a disease discovered in some of the western counties of England, particularly Gloucestershire and Known by the Name of Cow Pox (18, 10). The Latin word for cow is vacca, and cowpox is vaccinia; Jenner decided to call this new procedure vaccination. The 1798 publication had three parts. In the first part Jenner presented his view regarding the origin of cowpox as a disease of horses transmitted to cows. The theory was discredited during Jenner's lifetime. He then presented the hypothesis that infection with cowpox protects against subsequent infection with smallpox. The second part contained the critical observations relevant to testing the hypothesis. The third part was a lengthy discussion, in part polemical, of the findings and a variety of issues related to smallpox. The publication of the Inquiry was met with a mixed reaction in the medical community.

Jenner went to London in search of volunteers for vaccination. However, after 3 months he had found none. In London, vaccination became popular through the activities of others, particularly the surgeon Henry Cline, to whom Jenner had given some of the inoculant (4). Later in 1799, Drs. George Pearson and William Woodville began to support vaccination among their patients. Jenner conducted a nationwide survey in search of proof of resistance to smallpox or to variolation among persons who had cowpox. The results of this survey confirmed his theory. Despite errors, many controversies, and chicanery, the use of vaccination spread rapidly in England, and by the year 1800, it had also reached most European countries (10).

Although sometimes embarrassed by a lack of supply, Jenner sent vaccine to his medical acquaintances and to anyone else who requested it. After introducing cowpox inoculation in their own districts, many recipients passed the vaccine on to others. Dr. John Haygarth (of Bath, Somerset) received the vaccine from Edward Jenner in 1800 and sent some of the material to Benjamin Waterhouse, professor of physics at Harvard University. Waterhouse introduced vaccination in New England and then persuaded Thomas Jefferson to try it in Virginia. Waterhouse received great support from Jefferson, who appointed him vaccine agent in the National Vaccine Institute, an organization set up to implement a national vaccination program in the United States (20).

Although he received worldwide recognition and many honors, Jenner made no attempt to enrich himself through his discovery. He actually devoted so much time to the cause of vaccination that his private practice and his personal affairs suffered severely. The extraordinary value of vaccination was publicly acknowledged in England, when in 1802 the British Parliament granted Edward Jenner the sum of £10,000. Five years later the Parliament awarded him £20,000 more. However, he not only received honors but also found himself subjected to attacks and ridicule. Despite all this, he continued his activities on behalf of the vaccination program. Gradually, vaccination replaced variolation, which became prohibited in England in 1840.

CONCLUSION

Jenner's work represented the first scientific attempt to control an infectious disease by the deliberate use of vaccination. Strictly speaking, he did not discover vaccination but was the first person to confer scientific status on the procedure and to pursue its scientific investigation.

Late in the 19th century, it was realized that vaccination did not confer lifelong immunity and that subsequent revaccination was necessary. The mortality from smallpox had declined, but the epidemics showed that the disease was still not under control. In the 1950s a number of control measures were implemented, and smallpox was eradicated in many areas in Europe and North America. The process of worldwide eradication of smallpox was set in motion when the World Health Assembly received a report in 1958 of the catastrophic consequences of smallpox in 63 countries (Figure ​(Figure55). In 1967, a global campaign was begun under the guardianship of the World Health Organization and finally succeeded in the eradication of smallpox in 1977. On May 8, 1980, the World Health Assembly announced that the world was free of smallpox and recommended that all countries cease vaccination: “The world and all its people have won freedom from smallpox, which was the most devastating disease sweeping in epidemic form through many countries since earliest times, leaving death, blindness and disfigurement in its wake”

Then as now there are risks related to vaccines. Flu vaccines carry a one or two in two million Guillain-Barré syndrome (GBS) risk. Some vaccines carry risk of allergic reaction. The measles, mumps and rubella vaccine, popularly known as MMR, has long been anecdotally tied to autism (the medical world, wit large strongly dismisses this last assertion).

Would halacha still sanction such inoculations?

For example, while the Salk polio vaccine carries no risk of contacting polio, it does not protect from giving small trace amounts to others; the Sabin polio vaccine however protects others as well, but indeed carries a small risk of infection in the one being immunized (about one in two million).

May one take such a risk?

Once again, we turn to the Tiferess Yisroel:

Article from Rabbi Ari Zakatunski:

The Radvaz (3:627) feels that according to the vast majority of opinions who do not require one to endanger himself in order to save another person. Not only is one not required to do so, one is not allowed to do so. He writes that one who places himself in Safek Sakana in order to save his friend is a “foolishly pious individual” and the potential risk out ways the mortal danger facing his friend. One is not allowed to endanger himself in order to perform a Mitzvah or in order to avoid a sin (except idolatry, murder, and sexual relations). Therefore, it is not permitted to endanger one’s self in order to avoid performing the sin of Lo Saamod Al Dam Re’acha. This ruling was also cited by Harav Yitzchak Weiss zt”l (Minchas Yitzchak 6:103).

Harav Moshe Feinstein zt”l (Igros Moshe Y.D. 2:174:4) disagrees with the ruling of the Radvaz. He explains that although normally one may not endanger himslef in order to avoid a sin, in this case one is permitted since his actions will lead to a Jewish person being saved. According to Harav Moshe zt”l the whole dabate is whether one is required to enter a Safek Sakana in order to save his friend. However, everyone agrees that one is permitted to do so.

Harav Ovadia Yosef zt”l (Yechava Daas 3:84) found a discrepancy in the writings of the Radvaz. In one response the Radvaz writes that one is not permitted to endanger himself in order to save his friend. While in another response he writes that one is required to enter a somewhat dangerous situation in order to save someone from a life threatening situation. Harav Yosef zt”l explains that there is no contradiction. If there is a 50%, or more, chance of death one is not allowed to save his friend. One is not allowed to perform an act with such a high risk of death, even in order to save his friend. If the chance of death is less than 50% one is required to save his friend. In this case the chance of death is so small that the reward of saving a Jew out ways the potential danger. He adds that the Radvaz, himself, seems to indicate such a distinction in one of the responses.

The Radvaz does add that there is no requirement to donate a limb in order to save another jew, even if donating a limb involves a small risk of death. He explains that the ways of the Torah are sweet and the Torah would never require someone to become mutilated and deformed. What if donating eyes could save a life, reasons the Radvaz, you would have half of Klal Yisroel missing eyes? The Torah cannot require such a thing. Although it is praiseworthy, the Torah would never require organ donation.

Rabbi Solaveitchik

"To live, and to defy death, is a sublime moral achievement. That is why Judaism has displayed so much sympathy for scientific medicine and commanded the sick person to seek medical help. Curing, healing the sick is a divine attribute reflecting an activity (rofe holim) in which man ought to engage.” (“Majesty and Humility,” p. 34)"

Letter signed by Rabbis Shmuel Kamenetsky, Shmuel Meir Katz, Binyomin Halperin, Matisyahu Salomon, Eliezer Dunner, Malkiel Kotler, Elye Wachtfogel, and Aaron Schecter

The Torah commands, ונשמרתם מאד לנפשותיכם. This Biblical commandment requires one to be very vigilant in caring for one's life, and to refrain from any action that may put his life or health in danger. The benefits and risks of vaccination is a much debated topic in medical and scientific circles. Although one may follow the opinion of most doctors and chose to vaccinate his children, the individual who has done his research has the obligation to act according to his knowledge. If his research has led him to understand that the risks of vaccination are greater than its benefits, and particularly when his view is supported by many medical doctors and researchers, the commandment of ונשמרתם מאד לנפשותיכם obligates him to shield his children from vaccines. This is even more so when a parent has reasons to believe that his children are sensitive to vaccines. To act otherwise would be a transgression of the above Biblical commandment.

Schools must honor the request for religious exemption from such parents, for it is entirely justified.

DAILY NEWS

Ultra-Orthodox Jews vaccinate, too: Stop blaming one community for the measles outbreak

By Dr. Daniel Berman and Awi Federgruen

A man walks past school buses near the Yeshiva Kehilath Yakov School in the South Williamsburg neighborhood, April 9, 2019 in the Brooklyn borough of New York City. New York City has ordered all yeshivas in a heavily Orthodox Jewish section of Brooklyn to exclude from classes all students who aren't vaccinated against measles or face fines or possible closure. The order comes amid a recent outbreak of over 285 measles cases in Brooklyn and Queens, most of which have been concentrated in the Orthodox Jewish communities. (Drew Angerer/Getty Images)

In this year’s U.S. measles outbreak, parts of Brooklyn and Rockland County have experienced two-thirds of the reported 704 infections. The media generally blame an alleged low vaccination rate in these areas, each with a large percentage of ultra-Orthodox Jews.

Public health experts corroborate this message. Dr. Nancy Messonnier of the Centers for Disease Control testified to Congress: “I do believe that…most cases that we’re seeing are in unvaccinated communities.” Dr. Anthony Fauci, who heads the National Institute of Allergy and Infectious Diseases, declared:

“Coverage in a given community, when it falls below a certain critical level, you get the kinds of outbreaks that we’re seeing, particularly in places like New York City and the Williamsburg section of Brooklyn…. his is a relatively closed community, a Hasidic Jewish community in that area — that are not vaccinating their children at a rate that would provide that broad umbrella of protection that we call herd immunity…When you drop down to the 80s or even the 70s [emphasis added] or even lower, where it is now in that community, that’s exactly the explanation of why we’re seeing the outbreaks that we’re seeing.”

However, the New York State Health Department reports the average vaccination rate for measles among the nearly 200 Jewish K-12 schools in Brooklyn — mainly in Borough Park and Williamsburg — is 96%, six percentage points higher than the statewide average among private schools. In contrast, six other New York counties have a vaccination rate below 50%.

Moreover, the measles vaccination rate among Jewish school-age children is above the assumed 95% threshold required for “herd immunity,” i.e., protection of the community from sustained outbreaks.

What, then, explains the outbreak?

Regardless of the vaccination rate, some communities have characteristics that enhance and sustain epidemics. Population density and a community’s social mixing patterns are two critical determinants of whether an outbreak dies out or remains sustained. Orthodox Jewish communities are densely populated. Families have many children and interact frequently.

The vaccination rate of 95%, assumed to provide herd immunity, is derived from a basic model assuming the vaccine is effective 97% of the time, and that, in the absence of immunity an average infected individual transmits the infection to 12 others, the “basic reproduction number” (what we in medicine refer to as “R0”).

If, however, in a densely populated and highly interactive community, the average infected individual transmits measles to 24 others, then 99% of the community must be vaccinated in order to ensure herd immunity. If the average is 36, then even a 100% vaccination rate fails to ensure herd immunity. R0 estimates in the literature vary from 1 to 203.

Implicit in the current media coverage is the assumption that measles outbreaks should not occur anymore. But despite the fact that measles were declared eliminated from the United States in 2000, complete elimination may no longer be realistic.

Anyone born before 1957 is generally assumed to have complete natural immunity to measles, gained through childhood exposure to the virus. Today most rely on vaccination for their immunity, which is only 97% effective. Indeed, 13% of the typed 2019 cases were vaccinated.

Another obstacle to elimination is the persistence of “anti-vaxers” (though no evidence suggests that their presence among Orthodox Jews is above average). As long as there is a cohort of people refusing vaccination, together with a group which the vaccine fails to immunize, it will be extremely difficult to eliminate measles.

What remedies are available, then?

First, it is time to stop vilifying the Orthodox Jewish community when the data show their vaccination rates are as high as any. Continuing to blame this segment of the Jewish community — especially in the news media — is not only wrong. It actually jeopardizes the cooperation that is necessary to stem the outbreak.

Current recommendations are likely being revisited. In 1968, a single vaccine was believed to achieve lifelong immunity. However, from 1987 to 1992, a large outbreak infected many vaccinated young adults. The recommendation was then changed to administer two vaccine doses — the first at age one, and a second dose between the ages of 4 and 6. Upon review, the guidelines could perhaps change to recommend giving the second vaccine earlier, or even to administer a third dose.

Reducing measles here in the U.S. also calls for better international cooperation. From 2001 to 2016, 553 measles cases in the U.S. originated abroad. As of April 24 of this year, 170 countries have reported 112,163 measles cases to the World Health Organization — four times last year’s numbers. The trend calls for WHO to initiate a global vaccination campaign, similar to its successful campaign to eradicate the polio virus globally. This will, however, require large donations by first world governments and organizations like GAVI and the Gates Foundation.

Additionally, with the community’s cooperation and trust, the "identify, isolate and track” strategy, effective in containing the Ebola virus, could be implemented successfully.

Last but not least, anti-vaxers must be engaged respectfully instead of with derision or condescension. Some anti-vaxers’ concerns are, prima facie, reasonable. Their claim that vaccines are associated with autism is not. The only study ever claiming a relationship was fraudulent. And a new Annals of Internal Medicine study, once again, dispels any links.

Medical practitioners, especially, have a duty to provide clear explanations and to engage patients in joint decisionmaking. On the other hand, anti-vaxers must understand that their personal decision impacts others very significantly. We urge them to get vaccinated for the general good, as only very high vaccination rates prevent enduring outbreaks.

In summary, there is a worldwide and national surge in measles, disproportionately affecting the Orthodox Jewish community, even though its vaccination rate is similar to those elsewhere. Outbreaks are more likely in dense populations with frequent social mixing patterns. Blaming the Jewish community is therefore wrong, offensive and counterproductive by enhancing resistance and suspicion.

Vaccination rates should be maximized, nationally and globally, and the current vaccination schedule reevaluated. Finally, antivaxers should reevaluate the relative risks, understand that autism is a baseless concern, and consider the benefit vaccination provides to society.

These three pages of Handouts were found in BMA of Queens and were not created by this writer. I found them to be perfect to explain this Minhag.

Shu't Rashbash 189

Furthermore, they don’t know what these ten Sefirot are; if they’re descriptions, or names, or influences that emanate from God…

If you say they are (just) names, then they (must not be) independent parts; but if they are independent entities then they are a multiplicity of parts, and if this is the case, the Christians claim there are three parts (to God), and these ones (publicizing Kabbalists) claim there are ten!

And if you say they are (descriptive) attributes, then why are these ones different than the other attributes which describe God? God taught Moses about 13, so why have they diminished from this number by 3?…And if Moses did not reach (the level to know the Sefirot), how could another reach (the level to know) them?

…And if you say they are influences…that is to say, angels…one who prays to them- if he says they are powers or influences- if this is the case, one who prays (to) and concentrates on them is a heretic, since anyone who prays to one of the angels is a heretic! And one who thinks (the Sefirot) are things unto themselves and different than God is a heretic!

And if you say they are attributes, they should tell us what difference there is from the other ones.”…students who have not learned enough, and who do not want to put in effort into legal topics, choose impatiently to glorify themselves with the knowledge of Kabbalah, in order to make themselves great before women and ignoramuses, and to take a crown for themselves with light words…and one who guards his soul will stay away from them.

(Translation by Y. Sprung)

Version 1

• Keter (Crown)
• Hokhmah (Wisdom)
• Binah (Understanding)
• Hesed (Mercy)
• Gevurah (Justice)
• Tiferet (Beauty)
• Nezah (Eternity)
• Hod (Glory)
• Yesod (Foundation)
• Shekhinah (the feminine aspect of God) or Malkhut (Royalty)

Version 2

• Chochmah - wisdom,
• Binah - understanding,
• Daat - knowledge,
• Chessed - kindness,
• Gevurah - strength,
• Tiferet - beauty,
• Netzach - victory,
• Hod - splendor,
• Yesod - foundation,
• Malchut - kingship.