Qimron Defends His Lawsuit—“No Threat to Intellectual Freedom”

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Your editorial headed “Why Professor Qimron’s Lawsuit Is a Threat to Intellectual Freedom,” BAR 18:05, ends with an invitation to me to explain why I think that the arguments in that editorial are wrong. I should like to take up that invitation.

1. The editorial is based on a completely false assumption. It states that Professor Strugnell and I wish to claim “the exclusive copyright on this 2,000-year-old text,” that is, on MMT. Such a ludicrous idea never so much as crossed our minds. We merely wish to protect copyright on the edition of this text which we have authored.

The distinction is, I am sure, a familiar one to all BAR readers. I have before me 18 volumes of the great Göttingen edition of the Septuagint. Each volume is copyrighted by Vandenhoeck and Ruprecht. Is BAR really under the impression that Vandenhoeck and Ruprecht own the copyright of this 2,000-year-old Greek translation of the Hebrew Bible? I have also before me the Biblia Hebraica Stuttgartensia, the standard scientific edition of the Hebrew Bible. It is copyrighted by the Deutsche Bibelstiftung. Is BAR under the impression that the Deutsche Bibelstiftung owns the copyright of the Hebrew Bible? I have before me the Stuttgart edition of the Vulgate. Each volume is copyrighted by the Deutsche Bibelgesellschaft. Does BAR believe that the Deutsche Bibelgesellschaft owns the copyright of the standard Latin translation of the Bible?

Both in the U.S.A. and elsewhere, one may own the copyright in a particular version of a work without owning the copyright in the underlying work itself. The Biblical Archaeology Society, the publisher of BAR, has itself taken out the copyright on its own Preliminary Edition of the Unpublished Dead Sea Scrolls (Fascicle Two, 1992). I am sure that BAS is not so foolish as to believe that it now owns the exclusive copyright on these 2,000-year-old texts.

2. The author of the editorial seems to adopt a sarcastic tone in writing of “the arduous task of arranging the pieces of the six copies of the MMT.” Later he refers to our edition as a “transcription,” as if all we had to do was to copy out in neat handwriting the words that we found in our six copies.

Nothing could be further from the truth. Our text is based on over 70 fragments, the smallest of which contain only a few letters. The 70 fragments come from six different manuscripts, not one of which is complete. The task of producing a single text from all this material is not, as one might imagine, like putting together a jigsaw puzzle; it is not even like putting together half-a-dozen different jigsaw puzzles, all of which lack many pieces. The differences are two. First, in a jigsaw puzzle two adjacent pieces fit together physically; in these manuscripts, even when two adjacent fragments survive, the fact that they fit together is not usually evident from their shape. Second, in a jigsaw puzzle, you know what the picture is that you’re putting together. Here we do not know what the underlying text is, and a large part of the work of reconstructing the text involves conjecture: In order to justify placing this fragment here and this fragment there, the scholar who produces the text has to offer an informed judgment as to the missing portion of the text that lay between the two fragments.

The only way to understand what is involved is to see a sample of the work, and so I offer here photographs of seven fragments from which we inferred ten lines of text. Six of these fragments come from one manuscript, the seventh (the one on the left of the bottom line of the photograph) comes from another manuscript. Our reading of the text is given 069below the photograph; in it letters with dots above them are letters that are not clear in the manuscript or of which only illegible traces remain, and everything that is within square brackets is a conjectural restoration of text that is entirely lost. It will be seen that more than half of this section of the text is within square brackets. (Over 40 percent of the whole of the MMT text that we prepared is within square brackets.)

It is relatively easy to see from the script that the six fragments in question all belong to the same manuscript. But we also assert in our edition, that these particular six pieces all come from the same column (as it were, the same page) of the scroll. This assertion is not based primarily on the physical form of the fragments, but rather on our conclusion that these fragments are all part of a text dealing with the laws relating to sacrifice. We studied the law of sacrifice in the Bible, in works from Qumran, in the rabbinical literature and in other sources (e.g., Philo and the Apocrypha). Only on the basis of this research were we able to propose a reasonable reconstruction of the text. Sometimes it took us days of work simply to establish the most plausible placement of a single fragment, or even the most likely reading of a single word.

Establishing the text of MMT was in fact a scientific undertaking that demanded an intimate knowledge of the relevant ancient literature; it demanded paleographic, linguistic and other skills; and above all it demanded creative imagination and authorship. There is only a very small number of scholars in the whole world who are capable of doing such original work properly. We consulted various experts concerning problems of reading, placing the fragments and restorations.

We hope that our version of MMT will be widely accepted, but we are far from claiming to have produced the only possible version of the text. Many points will inevitably, and legitimately, be the subject of controversy. I can say with assurance that if 100 thoroughly qualified editors were to edit the MMT fragments, each one independently of the other 99, the result would be exactly 100 different versions of the text.

Contrary to what the BAR editorial states, the fact that we have authored and published our edition of MMT in no way prevents other scholars from publishing editions of MMT. Such new editions will surely be produced, and they will surely differ, to a greater or lesser extent, from our own edition. The only restriction on other scholars is that they must do their own authorship; they cannot, without permission, simply reprint ours, any more than we can, without permission, reprint (say) the Stuttgart edition of the Hebrew Bible.

3. The writer of the editorial appoints himself defender of the rights of researchers on ancient texts. Let us see what in fact concerns such researchers with respect to my lawsuit. Are they concerned that if I win my case they will face grave difficulties in publishing research which uses published versions of texts, or in publishing translations of such texts, or even in making citations from them? Or are they concerned that if I lose my case their work may be published by others without authorization and without due acknowledgment?

The answer is beyond doubt. Twenty-seven of the most eminent scholars who work on the Dead Sea Scrolls have signed a petition that has been sent to Professor D. Bahat, the rector of Ben-Gurion University. In this petition they denounce the unauthorized publication of our version of MMT and “call on Ben-Gurion University to take a leading role in ensuring that the scholarly and scientific rights of researchers be respected.”

4. The writer of the editorial seems to think that the laws of copyright are somehow inimical to intellectual freedom. Nothing could be further from the truth. When Russia lived under a Communist dictatorship it refused to recognize the international copyright laws. Now that it is a free and democratic country, it has accepted them. The issue is not intellectual freedom but nonattribution and misappropriation of 070authors’ intellectual property, which academic scholars respect but BAR’s editor does not.

Hershel Shanks replies:

We would be the first to recognize the expertise and skill required to reconstruct MMT.

But that does not make Professor Qimron, Professor John Strugnell or the others who participated in reconstructing MMT the authors of the text. And, as Alan Dershowitz, Professor Qimron’s lawyer, will tell him, only authors are entitled to copyright.

Indeed, Professor Qimron is exactly the opposite of an author: He claims to have brought to light, not his own words, but the words of the ancient author. Professor Qimron is saying to us that these are not his words, but the words of the Teacher of Righteousness, who, according to Professor Qimron, composed MMT.

With all their brilliance, what the scholars who reconstructed MMT have done is, in effect, to direct a powerful flashlight on this ancient text, so that now, for the first time, we can see the very words of the ancient author.

It is not unlike what skilled archaeologists might do with a different kind of expertise when they dig up the remains of a beautiful statue that is found broken in a hundred pieces with many pieces missing altogether. All works of art are copyrightable and sculptors get the same protection given to those who create with words. Would the archaeologists who piece together the statue and fill in the missing pieces own the copyright in the statue? We think not.

If it were otherwise, it would certainly surprise the ancient sculptor if he or she returned today, just as it would surprise the Teacher of Righteousness to find Professor Qimron claiming copyright in the text he composed, but which Professor Qimron and other scholars reconstructed.

True, Professor Qimron and Professor Strugnell have done much more than bring to light the text of MMT. They have also written a 300-page commentary on this text that will be published by Oxford University Press. This 300-page commentary consists of their words, their authorship, which we could not lawfully copy without their permission. They do own the copyright in their commentary. But the reconstructed Hebrew text of MMT is quite another matter. That belongs not to Professor Qimron or to any other scholar, but to the world.

Which brings us to the copyright notice in the editions of the Septuagint and the Hebrew Bible and the Vulgate to which Professor Qimron refers. Of course these editions include copyright notices, as does the Biblical Archaeology Society’s book of unpublished scroll photographs that includes the 120-line transcript of MMT over which Professor Qimron is suing us. So do the fascicles of our Preliminary Edition of the Unpublished Dead Sea Scrolls, which contain computer-generated transcripts of many, many still-unpublished scrolls and to which Professor Qimron also refers. But the copyright notice in these books can legally apply only to what is copyrightable in these various publications. This may be, for example, an introduction or a commentary, but not the underlying ancient text. These ancient texts are simply not copyrightable; all are free to copy them, even though we must be grateful to the many brilliant scholars who uncover and reconstruct them.

According to Professor Qimron, he becomes the copyright owner of MMT because he arranged some of the pieces and filled in some missing letters and words. This, he says, took great expertise and skill. But what about reconstructed texts that don’t take much expertise and skill? What if the text consists of only three pieces that join and the missing letters and words are obvious? Presumably then the scholar who does the reconstruction would not own the copyright, even according to Professor Qimron. But how much expertise and skill must it take before the scholar who does the reconstruction gets the copyright in it? And will scholars now have to consult a copyright lawyer before determining whether it is all right to copy a reconstructed ancient text in some aspect of their own scholarship? This way madness lies.

In this case we could not even make a judgment like this when we published the reconstructed text of MMT because Professor Qimron was still keeping the fragments of MMT secret. Only he and Professor Strugnell (and colleagues to whom they showed them) could see them.^a When we decided to publish the reconstructed text of MMT, we had no way of knowing how 071easy or difficult it was to make the reconstruction. All we knew was that an anonymous copy of MMT had been photocopied around the world, that almost every scholar in the field had a copy, that it had been printed in a Polish journal and that Qimron and Strugnell had taunted the scholarly world by stating that the importance of MMT “cannot be exaggerated” but refusing to release a copy of the text.

As it turns out, there are six copies of MMT. Professor Qimron tells us that all together there are 70 fragments. This is an average of about 12 fragments per copy. This isn’t as difficult to piece together as 70 fragments of one copy. Perhaps one of the copies consists of only three fragments. If so, is this too few to give Professor Qimron the copyright in the reconstructed text of that copy? And how about the missing words that were reconstructed because they survived in another copy was it so easy to reconstruct these words that Professor Qimron should not be entitled to copyright in them? Are these the kinds of questions scholars will now have to ask before using reconstructed ancient texts?

At the time we made available to everyone the reconstructed text of MMT, we did not know whether it was easy or difficult to reconstruct. For all we knew—or could have known—it consisted of two copies of a few fragments each with most missing words and letters that could be reconstructed from the other copy.

We were stunned when, without even contacting us, Professor Qimron sued us in an Israeli court, claiming damages of a quarter of a million dollars. One cannot help but wonder who or what is behind this. This is simply not the way scholars act. No one has been able to find a case even remotely like this one.

We are in the process of publishing (in the fascicles of the Preliminary Edition of the Unpublished Dead Sea Scrolls, to which Professor Qimron refers) dozens and dozens of reconstructed Dead Sea Scroll texts. Some have suggested that Professor Qimron is a stalking-horse for a claim that the publication of these texts too violates someone’s copyright. Where, people ask, is a poor Israeli professor getting the money to retain some of the most prominent lawyers in Israel and the United States to pursue BAR for a quarter of a million dollars? Is Professor Qimron financing this litigation himself?^b If not, whose catspaw is he?

In any event, it is clear that a great deal is at stake. If Professor Qimron prevails in this litigation, scholars will have to study how difficult or how easy it was to reconstruct an ancient text before using it in their own work. They will have to consult a copyright lawyer before deciding on which side of the line it falls. If this doesn’t involve a threat to intellectual freedom, it is difficult to know what does.

Take an extreme case: Suppose that the ancient author of MMT was Jesus, rather than the Teacher of Righteousness. Is it really conceivable that Professor Qimron could copyright the reconstructed text and that no one could publish it except with the permission of Professor Qimron or his heirs for the term of the copyright (life plus 50 years)? We wonder if Professor Qimron realizes what he is claiming. For, if he is right, he will control the publication of MMT even after his (and others’) reconstruction is published by Oxford University Press, for copyright protection extends after publication by the author as well as before publication. Even then, if Professor Qimron is right, no one will be able to copy the reconstructed text of MMT without Professor Qimron’s permission.

Professor Qimron says that other scholars can publish their own editions of MMT. That is true. And as to their commentaries on MMT, these can be copyrighted. But to the extent that they see in the text something that those who reconstructed MMT may have missed, they cannot copyright that any more than Professor Qimron can copyright the ancient author’s words he uncovered. And these other scholars will want to build on the earlier reconstruction of MMT. If Professor Qimron is correct however, no other scholar will be able to make effective use of the reconstructed text of MMT without his permission. This is hardly the way scholarship should, or can, work. If Professor Qimron prevails in this litigation, scholars will have to fear a lawsuit if they publish a revised version of another scholar’s reconstruction of an ancient text without permission—even if this is in an effort to improve the reconstruction.

For all these reasons, we don’t think that Professor Qimron is right or that he will win the lawsuit. But, for the sake of argument, let’s suppose he is correct, that there has been a technical violation of his copyright. How has he been hurt? As Professor Qimron well knows, a great many Dead Sea Scroll scholars already had a photocopy of the reconstructed text of MMT that we published. It had already been published in a Polish journal. Is the proper recourse to file a lawsuit for a quarter million dollars? That is not normally how scholars behave. That is why so many people believe there is something else behind Professor Qimron’s effort to punish BAR.

If BAR loses this lawsuit, it will not be BAR alone that loses. The world of scholarship will be the bigger loser.

Your editorial headed “Why Professor Qimron’s Lawsuit Is a Threat to Intellectual Freedom,” BAR 18:05, ends with an invitation to me to explain why I think that the arguments in that editorial are wrong. I should like to take up that invitation. 1. The editorial is based on a completely false assumption. It states that Professor Strugnell and I wish to claim “the exclusive copyright on this 2,000-year-old text,” that is, on MMT. Such a ludicrous idea never so much as crossed our minds. We merely wish to protect copyright on the edition of this text which we have […]