Lawsuit Diary

069

I. A Cold Boston Night

It is after 8 at night. I am sitting in the reception area of a Boston law firm. The attorneys are still arguing in a conference room. I have been here with our Israeli attorney, Dov Frimer, since 10 in the morning. We have just finished taking the testimony of Harvard Professor John Strugnell, who was fired as chief scroll editor after making grossly anti-Semitic remarks to a Tel Aviv journalist and who is the senior researcher on the Dead Sea Scroll known as MMT. Strugnell’s colleague, Professor Elisha Qimron of Ben-Gurion University of the Negev in Beer-Sheva, Israel, is suing us in a Jerusalem court for publishing Strugnell’s and his Hebrew reconstruction of this 120-line text. The suit is for $250,000—damages that Qimron claims he personally suffered. The trial is scheduled for ten days hence in Jerusalem. I will have to fly there for the trial. So will Qimron. He is spending the year in Philadelphia on sabbatical. It will be as inconvenient—and expensive—for him as it will be for me.

I think of another meeting in Boston more than a year earlier—a wonderfully refreshing and stimulating meeting. The Dead Sea Scrolls had finally been liberated. The Israel Antiquities Authority had agreed that everyone could release pictures of the unpublished texts without restriction on their use. Indeed, the Antiquities Authority itself would provide the pictures to anyone who wanted them. Scholars all over the world were beginning to work on the scrolls. It was a time for reconciliation and healing. I was meeting in Boston with five great scholars—three of whom were leading Dead Sea Scroll scholars (Frank Cross of Harvard, Jim VanderKam of Notre Dame and Larry Schiffman of NYU) and two of whom were front-rank leaders of Bible scholarship (Harvard’s Helmut Koester, then president of the Society of Biblical Literature; and Boston College’s Phil King, the only person who has ever served as president of the Society of Biblical Literature, of the Catholic Biblical Association and of the American Schools of Oriental Research). The six of us talked about how to bring everyone together and what BAS could do to help. Among other things, we at BAS wanted to provide financial support—admittedly in some modest amount—to the work that Dead Sea Scroll scholars were doing. We discussed several possible projects.

Recalling this earlier meeting while the lawyers argue in the other room, I agonize over the financial hemorrhage that I am powerless to stop. We had wanted the testimony of Strugnell for our case, but he was not well enough to travel to Jerusalem for the trial. The trial judge in 070Jerusalem had ruled that we could take his testimony in Boston. But we had to pay the expenses of Qimron’s attorney, as well as our own attorney, according to Israeli practice. This added up to almost $5,000. The day before the testimony was to be taken, a New York lawyer called to say he had just been retained to represent Strugnell, so we had to agree to pay half of his expenses to come to Boston. Three lawyers are there, all at our expense. The testimony has now been taken, finally ending at 8, and has been recorded by a court stenographer. In order to have the transcript of Professor Strugnell’s testimony ready for the Jerusalem trial in ten days, however, we will have to pay a 90 percent surcharge on the stenographer’s fee of $3.50 per page. The transcript will be hundreds of pages. The best estimate is another $2,500—perhaps more. If we want Strugnell’s testimony, we will have to pay it. The reporter’s price is the standard for this kind of expedited work.

The money we had hoped to use to support Dead Sea Scroll research has long gone out the window—for lawyers’ fees and expenses. There is no stopping now, however. I hope it will end after the trial.

If this ever appears in print, my readers will know the outcome of the trial. Now, as I sit in the law firm’s reception area, I have no idea.

Our attorney, Professor Frimer (he also teaches law at Hebrew University), seems very satisfied with Strugnell’s testimony. Strugnell was a forthright and honest witness. Qimron’s lawyer tried to get Strugnell to say that what Strugnell and Qimron did in reconstructing the text of MMT was “recreation.” Strugnell preferred to avoid that term. (See the excerpts from Strugnell’s testimony.) The purpose of reconstruction is to get the words of the ancient author, he said. This testimony was good for us; you can’t copyright the words of the ancient author.

Qimron’s lawyer also tried to elicit testimony from Strugnell about how Qimron had been damaged by our publication of the 120-line text. Strugnell wouldn’t give it.

Yet Qimron wanted money. Several people had tried to settle the matter for us—unsuccessfully. Someone said Qimron deserved a spanking. Someone else was more explicit: “He’s throwing a childish temper tantrum. Unfortunately, it was more serious than that.

For some time I had wondered whether we should settle the suit by paying Qimron some money. Until now, I really didn’t have to face the question because the sums he was asking were astronomical. But as time passed, his demands declined. They were still beyond belief, but perhaps they would come in range as the trial approached. Perhaps they would be less than the attorneys fees and expenses. No, I decided. The principle involved was too important. If we paid off here, we or others would be faced with new demands. Scholars would no longer feel free to build on someone else’s reconstruction. Research would be hobbled. See it through, regardless of the cost, I decided.

Our attorney comes out into the reception area. Another $2,500, he says. We’ll have the transcript next Monday, he adds. Together we walk into the frigid Boston night looking for something to eat.

II. Excerpts from Professor Strugnell’s Testimony

Qimron’s attorney, Isaac Molho, wanted to call the work of reconstructing MMT “recreation.” This lent greater credibility to Qimron’s claim that he owned the copyright on the reconstructed text. After Molho put the concept of “re-creation” in Strugnell’s mouth, our attorney, Dov Frimer, objected. Molho retorted, “[Strugnell] agreed that it is a work of ‘re-creation.’ If you want me to ask him directly the question, I’ll do it with pleasure … Professor Strugnell, is this a work of re-creation as I’m using that term?”

In reply to this, Strugnell said, “I too don’t use the word re-creation. It’s a work of reconstruction.’

Later Molho made another attempt: “So maybe you were re-creating something. That’s possible.”

Strugnell: “But you see that this is why I avoid the term re-creation.”

At one point, Molho asked Strugnell to assume ten scholars with the same knowledge were in different rooms with the same manuscript: “Is it possible that they would come up with the identical work?”

Strugnell replied, “Yes, I think quite possible.”

In response to a question from our attorney, Strugnell testified, “There’s only one [correct version of the reconstruction]. The correct version is the one of the original composer of MMT.” The object of the reconstruction process, he went on, is “to recover a book that otherwise is hopelessly lost.”

Strugnell readily admitted that reconstructions vary in difficulty: “Sometimes it’s very easy to postulate a missing reading. Sometimes it’s very difficult.” Referring to some of the early reconstructions of MMT Strugnell said, “It’s work which a halfwit could reconstruct.”

Strugnell also admitted that many scholars had copies of the text of MMT before BAS’s publication of it. Strugnell and Qimron had given copies to several scholars. Strugnell explained that a “leak” then developed in Germany; after that there was a “flood of daughters of the Xerox machine”—a mixed metaphor that nevertheless made the point effectively. “It became in the end a status symbol in Jewish studies to have received a copy of MMT.”

When Qimron’s attorney asked Strugnell if he thought Qimron would be hurt by BAS’s republication of the text of MMT as it appeared in the Polish journal The Qumran Chronicle, Strugnell replied, “I don’t think Qimron has anything to worry about, the quality is so poor.”

Strugnell also testified that after initial publication of a text by the editor, the text was considered by scholars to be in the public domain: “My experience here has been that every time that we published the document in the form that we wanted, it then fell into the public domain.” This is inconsistent with a claim of copyright, however, because copyright owners can control publication after the initial publication as well as before—indeed, for their lifetime plus 50 years (by their heirs).

III. Trial in Jerusalem

Judge Dalia Dorner had set two days for the trial, February 1 and 2. No one could imagine how she would be able to finish the trial in two days. We would soon learn.

Judge Dorner’s courtroom in the District Court of Jerusalem is a small spare room with bare plaster walls, sometimes chipped, and wooden benches with backs about 6 inches high. Judge Dorner, in her late 40s or early 50s, has thick glasses, straight black-and-white hair and lovely features. It is not hard to imagine her as a beautiful young girl. On her elevated bench, she is somewhat austere, but with a familiar, comfortable and even jocular relationship with the attorneys.

She wore the customary judicial robe. I was surprised, however, to see the attorneys—Dov Frimer and Joseph Gellman represented us—also dressed in black robes, much like English barristers, from whom the custom has been inherited. The formal dress contrasted sharply with the plainness of the courtroom. But it was an even more dramatic contrast with the informality of the first witness. In an open-necked shirt, his ample girth swathed in a fashionable sweater of purple, green, yellow and white, Magen Broshi, curator of the Shrine of the Book, in which the intact scrolls are housed, took the stand on behalf of the plaintiff Qimron to give the background of the Dead Sea Scrolls.

I might as well say at this early point that there were few dramatic moments in the trial. The facts were well known to both sides, and there was little dispute as to what they were.

071

MMT is one of the most important of the Dead Sea Scrolls. It survived in six copies found in Cave 4 in 1952. It was assigned for publication to John Strugnell. In about 1980, Strugnell enlisted Qimron’s assistance, and Qimron gradually assumed a major role in the reconstruction of the text. Strugnell and Qimron have also written a 300-page commentary on the text, on which they are unquestionably entitled to copyright because they wrote it. On the other hand, an ancient author, perhaps the Teacher of Righteousness himself, composed the 120 surviving lines of MMT.

In the late 1980s, one of the handwritten copies of the composite text of MMT that Strugnell or Qimron had given to colleagues was widely photocopied and distributed among scholars around the world. One of these photocopies was obtained by a Polish scholar who published it in a journal that he edited, The Qumran Chronicle.

In the foreword I wrote to the Biblical Archaeology Society’s two-volume set of previously unpublished scroll photographs,^a I recounted the history of the official publication committee and its efforts to maintain control of the texts. Part of this history involved the publication of MMT in the Polish journal The Qumran Chronicle. An appendix to my foreword contained 23 exhibits, one of which, on a single page, was a photocopy of the 120-line reconstruction of MMT in Hebrew as printed in The Qumran Chronicle This was the basis of the lawsuit. Qimron claimed I had stolen his work, depriving him of the benefits of first publication.

Each of the six surviving copies of MMT consists of numerous fragments, more than 70 pieces altogether. Many do not join. The lacunae in the text are numerous. The work of reconstruction was time-consuming and difficult. Qimron spent more than a decade at it. In Qimron’s view it was also creative. Whether this resulted in original authorship such that he could copyright the reconstructed text remains the legal question.

The judge asked me whether, in my view, Qimron had any rights as a result of his work on the reconstruction of the text. I replied, “He has a moral right to credit, but no legal rights … My understanding is that if these are the precise words of the ancient author, there is no copyright problem.” I went on to explain that this is the work on which other scholars will build in the future. They will take the Strugnell-Qimron reconstruction and republish it with their own ideas and changes, but incorporating the parts of the Strugnell-Qimron reconstruction with which they agree. If Qimron owns the copyright, they will be able to do this only with Qimron’s permission and on Qimron’s conditions—and, for 50 years after his death, only with the permission, and on the conditions, of Qimron’s heirs.

Much of the testimony concerned collateral legal issues. As between Strugnell and Qimron (and Josef Milik, who also participated in the reconstruction), who owned the alleged copyright? Did any legal rights, assuming they existed, belong instead to the government of Israel—or to Jordan? Given the fact that no copies of the allegedly infringing book were sold in Israel (only three copies were sent there at the request of purchasers in America), did American or Israeli copyright law apply—and to which copies? To what extent, if at all, did Qimron suffer financial loss?

This latter question produced one of the few dramatic highlights of the trial—one that has had Israeli academia buzzing ever since. Ya’acov Sussman, a distinguished professor of Talmud at Hebrew University, testified on Qimron’s behalf that a first-rank professor can get as much as $10,000 for a single lecture. This was duly reported in the Israeli press and Sussman has been deluged with calls from scholars asking where they can sign up. If Sussman is right, four lectures a year like this and an Israeli professor can live well regardless of his/her salary. As one wag has noted, this explains how Israeli professors live so well despite their small salaries, they hardly need to be paid by their universities.

The relevance of this testimony? Presumably Qimron would argue that he will no longer be able to get as many of these $10,000 lectureships because of BAS’s publication of the reconstructed text of MMT.

The other dramatic highlight of the trial came at the very end: a surprise witness that no one in the courtroom had ever seen before. Qimron sued not only BAS and me, but also Robert Eisenman and James Robinson, two academics who had prepared the pictures in the book. They also prepared an index and wrote their own introduction. They had nothing to do with the alleged infringement in my foreword, however. Despite this, Qimron pursued them. My attorneys were able to represent Robinson, the very distinguished editor of the Nag Hammadi codices and director of the Institute for Antiquity and Christianity, but Eisenman had to have a separate attorney because he has been accused of plagiarizing Qimron’s MMT in another book, written by him and University of Chicago scholar Michael Wise. At the Jerusalem trial, therefore, Eisenman was represented by Amos Hausner, the son of Gideon Hausner, the prosecutor of Adolf Eichmann, the Nazi official who oversaw the plan to exterminate European Jewry during World War II.

As his last witness, Amos Hausner called William Cox, a California lawyer whom I had never seen but who had telephoned me years ago to say that he represented an unnamed client who was willing to make available to BAS, at no cost, pictures of the unpublished scrolls, the pictures that we eventually published in the book that was involved in the lawsuit. The courtroom was electrified. Would Cox be asked where the pictures came from? Would he be asked who his still-secret client was? Hausner did not ask these questions. Then it was Qimron’s lawyer’s turn. What was the source of the pictures in the BAS volumes of unpublished scrolls? Qimron’s lawyer asked. Cox replied that he did not know. Who was your client? Qimron’s lawyer then asked. Hausner jumped to his feet and objected. Judge Dorner sustained the objection, and the witness was dismissed. The trial was over.

How was Judge Dorner able to complete this complicated trial in just two days? We had thought she would do this by restricting lawyers to questions that were plainly relevant. She did not proceed that way, however. For the most part, she let the lawyers go on and on. When there were objections, she generally allowed the questions: Let it in “for whatever it’s worth,” as the lawyers say. Better that the record should be as complete as the lawyers wanted to make it; everyone seemed to be aware that this was a case that might eventually go to the Israeli Supreme Court.

How then was she able to do it? Her method dawned on us at about 3 in the afternoon on the first day of the trial, when she had still not called a lunch break—and it became clear she did not intend to call one. Instead she eventually called a dinner break of 20 minutes. Then the trial resumed in the evening. By 9 o’clock, Qimron’s lawyers completed the presentation of their case, and she let us go home. The next day was the defendants’ turn. The defendants finished a little earlier—by about 8 o’clock. That’s how she finished the trial in two days.

Then she set three hours for oral argument by the attorneys on February 25. I do not know what the outcome will be. By the time this appears in print, my readers probably will.

I. A Cold Boston Night It is after 8 at night. I am sitting in the reception area of a Boston law firm. The attorneys are still arguing in a conference room. I have been here with our Israeli attorney, Dov Frimer, since 10 in the morning. We have just finished taking the testimony of Harvard Professor John Strugnell, who was fired as chief scroll editor after making grossly anti-Semitic remarks to a Tel Aviv journalist and who is the senior researcher on the Dead Sea Scroll known as MMT. Strugnell’s colleague, Professor Elisha Qimron of Ben-Gurion University of […]