In our BAR 19:04 issue, we announced that we would not appeal the Jerusalem court’s decision that Professor Elisha Qimron owns the copyright on the reconstructed text of the Dead Sea Scroll known as MMT. “Now the scholarly community,” we said, “will have to live with that decision—and deal with it in its own way.”a
We have changed our mind. We are going to appeal. The principal reason for the change is the courageous action of two American scholars—Professor Ben Zion Wacholder of Hebrew Union College Jewish Institute of Religion in Cincinnati, Ohio, and Professor Martin Abegg of Grace Theological Seminary of Winona Lake, Indiana—who have instituted their own suit against Qimron. Wacholder and Abegg are not seeking money; they are simply asking an American court to declare that they may make their own reconstruction of MMT despite the fact that they, like all scholars in the field, are conversant with Qimron’s reconstruction of this 121-line text. In other words, they are claiming that Qimron does not own the copyright on the reconstructed text of MMT.
We do not want to burden Wacholder and Abegg’s suit with an adverse precedent—that is, the Jerusalem court’s ruling in the case Qimron brought against us in Jerusalem. By appealing that ruling, we take the sting out of that case as precedent.
There are other reasons to appeal. Probably the most famous name in copyright law is Nimmer. The most widely used legal text on the subject, a six-volume treatise, is called Nimmer on Copyright. Although the author is no longer living, the treatise is kept up-to-date annually with copyright cases from all over the world. This work is now done by the original Nimmer’s son, David Nimmer, a leading American copyright lawyer. David Nimmer is one of the lawyers representing Wacholder and Abegg in their suit against Qimron,b and he has agreed to serve, without fee, as co-counsel with our Jerusalem lawyer, Dov Frimer, on our appeal to the Israel Supreme Court. Fortunately, David Nimmer reads Hebrew, something few American lawyers know how to do. In addition, our Jerusalem lawyer has agreed to appeal the case on a contingent basis—he gets paid only if he wins.
There are risks nevertheless. Qimron originally sued us for nearly $250,000, but the Jerusalem court gave him only a fraction of this amount. (Including the fee we are ordered to pay Qimron’s lawyer, it is approximately $75,000.) Qimron wants more. He is going to ask the Israel Supreme Court for more money from us if we appeal. This is obviously a serious danger, but it is a risk we now feel we must take.
David Nimmer has called the Jerusalem court’s interpretation of American copyright law “catastrophic.” That is why he has agreed to serve without fee. If the Jerusalem court’s decision is allowed to stand, scholarship will be hobbled. No scholar will be able to work on MMT without Qimron’s permission, unless he wants to risk a devastating lawsuit by the litigious professor. Qimron will control the reconstructed text of MMT even after he publishes it, because he will own the copyright in it, just as a novelist owns the copyright in a novel even after its publication. (For a fuller discussion of this point, see “Qimron Wins Lawsuit,” the article in our BAR 19:04 issue referred to above.)
An appeal to the Israel Supreme Court offers hope that this situation can be corrected.
Correction
Contrary to what was stated in “An Open Letter to John Strugnell and Elisha Qimron,”BAR 19:05, Professor Elisha Qimron is a tenured faculty member. In April 1993 he was promoted to full professor at Ben Gurion University of the Negev.
In our BAR 19:04 issue, we announced that we would not appeal the Jerusalem court’s decision that Professor Elisha Qimron owns the copyright on the reconstructed text of the Dead Sea Scroll known as MMT. “Now the scholarly community,” we said, “will have to live with that decision—and deal with it in its own way.”a We have changed our mind. We are going to appeal. The principal reason for the change is the courageous action of two American scholars—Professor Ben Zion Wacholder of Hebrew Union College Jewish Institute of Religion in Cincinnati, Ohio, and Professor Martin Abegg of Grace […]
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The other lawyers are Diane Siegel Danoff, Jerome A. Hoffman and Lori Lowenthal Marcus, of the Philadelphia firm of Dechert Price and Rhoads; Abbe David Lowell and William Maxwell Hathaway, of the Washington D.C. firm of Brand & Lowell and Wayne M. Barsky and Elliot Brown, who, like Nimmer, serve at the Los Angeles firm of Irell & Manella.
