The Jerusalem court has spoken: Elisha Qimron of Ben-Gurion University of the Negev owns the copyright on the reconstructed text of MMT, one of the most important, and still unpublished, Dead Sea Scrolls.
Now the scholarly community will have to live with that decision—and deal with it in its own way.
Our friends who feel outraged at the decision are asking us, as no doubt our readers will, why are we not appealing. As The Washington Post noted in an editorial titled “Post-Liberation Scrolls”: “Many scholars say they hope Mr. Shanks will appeal.” They cannot understand how a 20th-century researcher can own the copyright on a 2,000-year-old text that he deciphered. As stated in a letter to the editor that appeared in another American newspaper, “The irrationality of this decision is obvious.” Surely, our friends tell us, the Israel Supreme Court would not uphold such an obviously flawed ruling.
Our decision not to appeal has not been an easy one. Several considerations combined, finally tipping the balance. The first was simply money. Qimron and his lawyers have exhausted us financially. The case has cost nearly $100,000—the penalty for printing a single page in a 900-page, two-volume set of previously unpublished scroll photographs. This $100,000 includes over $40,000 that we will have to pay Qimron even though the court found that he had failed to prove any actual financial injury. If we appeal and lose, according to Israeli practice, we will have to pay additional fees to our own lawyers as well as Qimron’s lawyers. We have already been ordered to pay nearly $25,000, by order of the Jerusalem court, to Qimron’s lawyers for their fees and expenses.
There are other factors. Copyright law is very technical, and our lawyers tell us that, although the court’s decision may be terrible from the viewpoint of scholarship policy, it is not outrageous from the narrow legal perspective of copyright law. Qimron restored a good deal of the 120-line MMT text that wasn’t there. This took knowledge, skill and judgment. Furthermore, and ironically, if Qimron’s reconstruction is inaccurate (which, of course, it may be), only then is Qimron, and not the creator of the original 2,000-year-old scroll, the “author” of the text.
Moreover, an appellate court decision could make matters even worse for the world of scholarship. Instead of an adverse decision of a lower court, a scholar would be faced with an adverse decision of the Israel Supreme Court. The reasoning of the appellate court could be worse than the Jerusalem court’s reasoning. For example, the Jerusalem court suggested that, contrary to Qimron’s contention, he was not entitled to a copyright in the arrangement of the pieces. His copyright extended only to the gaps in the text that he filled in. So we would “rather bear those ills we have / Than fly to others that we know not of.”
Then, too, the law has a better chance of being clarified in favor of an open scholarship in a case with a different factual context—for example, an action by another scholar who wants to publish a second reconstruction similar to a published reconstruction, but is fearful of doing so because he has been threatened with a lawsuit for copyright infringement.
Perhaps this issue is best resolved not by the courts as a matter of copyright law, but by the academic community as a matter of scholarly convention. It may be that the scholarly community is best able to decide what is an appropriate balancing of interests between the individual scholar and open scholarship, and what steps, if any, should be taken within the community to encourage open scholarship.
What are the effects of the Jerusalem court’s decision? Here are some of them:
Harvard professor John Strugnell testified that it became a “status symbol” among scholars in the field to have a photocopy of the text of MMT as reconstructed by Qimron. There was, Strugnell said, a “flood of daughters of the Xerox machine.” Unless the scholar received a photocopy from Qimron himself, however, the copy is now an illegal one. Any person holding such a copy could be required by the court to destroy it if sued by Qimron. The same would be true of any copies of Qimron’s reconstruction from The Qumran Chronicle, the Polish journal that previously copied and published this text without Qimron’s permission.
Until Qimron publishes the reconstructed text of MMT, it will be unavailable to scholars generally. Of course Qimron is free to continue to make it available to his friends.
Until now the interpretation of MMT has been carefully orchestrated, and we can expect 067this to continue. Not until 1984 did Qimron and Strugnell make known the existence of MMT. Since then, numerous articles interpreting the text have appeared—but only with the permission of Qimron and Strugnell and even then only by friends and colleagues to whom they had given the reconstructed text. Qimron and Strugnell have virtually taunted the scholarly community by claiming in a widely cited article that “our [sic] letter [i.e., MMT] is one of the most important Qumranic works. Its contribution to the history of halakha and of the Hebrew language, and to other fields, cannot be exaggerated.” A promised preliminary publication of the text never appeared. What has appeared are lengthy articles of interpretations of the reconstructed text; none has been in any way critical of Qimron and Strugnell’s work, and most have expressed gratitude to them for being allowed to work on and write about this important text.
A book about the Biblical psalms is scheduled for publication this fall. The book has nothing to do with the Dead Sea Scrolls, but, as so often happens, a passage from the scrolls, in this case MMT, provides the solution to a scholarly crux. In his new book, the author thanks Hebrew University professor Jonas Greenfield for letting him see a copy of MMT, which solved the problem. Greenfield is a member of the Israeli scrolls oversight committee. He, of course, is a friend of Qimron and has access to a copy of Qimron’s reconstruction of MMT, which proved critical to the author of the book on Psalms. At the present time, this is how you get to see the reconstructed text of MMT: You have to know somebody who knows somebody. Outsiders may be astonished at how scholarship in this area works.
Even after publication of the reconstructed text of MMT, Qimron will continue to own the copyright. Thus it cannot be copied even then, although scholarly convention is to the contrary. The court specifically ruled that the copyright law is not affected by this scholarly convention. This means that the only legal copies of the reconstructed text of MMT will be in the Oxford edition to be published by Qimron. It may even be illegal to photocopy the text for classroom use. The Oxford volume will cost approximately $100. To obtain a legal copy of the 120-line text, will scholars and students be required to purchase a copy of the Oxford edition?
Qimron’s friends and colleagues need not worry about being pursued for their violations of the copyright law. Besides, if they ask, Qimron will gladly give them permission to copy the reconstructed text. It is others who will have to worry, especially if they do not want to disobey the law, even if, unlike what he has done to BAR, Qimron does not take them to court.
Qimron has already threatened to take two other scholars to court if they make “any use” of the reconstructed text in creating their own reconstruction. This letter was addressed to Professor Ben Zion Wacholder of Hebrew Union College in Cincinnati and to Professor Martin Abegg of Grace Theological Seminary.
Qimron says that other scholars can make their own reconstructions of MMT if they wish, starting from scratch with photographs of the fragments. This would not violate his copyright. That is not so easy, however. Every scholar in the field has studied the Qimron reconstruction. Thus every scholar has had what lawyers call “access” to Qimron’s reconstruction. Much of Qimron’s reconstruction is obviously correct. But a second scholar who adopts some of Qimron’s reconstruction may well be charged with illegally copying Qimron’s reconstruction. Even if the court believes the second scholar’s contention that he or she independently came up with the same reconstruction as Qimron, that scholar may be subject to an impoverishing lawsuit.
The result will be that in many cases scholars will simply stay away from reconstructing texts that have been previously reconstructed, especially in the case of MMT in light of Qimron’s threat to Wacholder and Abegg. As a result of this threat, these two scholars have decided that they cannot afford to attempt a reconstruction of MMT. They will simply drop the project.
Thus Qimron’s reconstruction of MMT is likely to be the only version of MMT—not by force of the reconstruction itself, but because other scholars will be unlikely to work on a text that entails such dangers.
True, Qimron’s friends and colleagues will have no such fear, but then, they are the least likely to disagree with him.
Incidentally, where is Strugnell in all of this? In his testimony, Strugnell candidly and graciously admitted that over half the work on the reconstruction was done by Qimron. Magen Broshi, curator of the Shrine of the Book in Jerusalem, testified that at an early stage, Strugnell’s work on the reconstruction became “stalled.” In the words of the court, “The continuation of the decipherment depended on the filling in of the missing parts of the Scroll. This could not be done without thorough knowledge of Jewish law. Strugnell, a non-Jew, was foreign to Jewish law, and in the words of Broshi ‘he came to a blocked wall’ … Strugnell, whose studies covered many different fields and who in the course of time had curtailed his activity down to nothing for physical and mental reasons, left most of his work to the plaintiff [Qimron].” Apparently the court preferred Broshi’s testimony over Strugnell’s. That is why we now refer to the reconstruction as Qimron’s reconstruction, even though, according to Strugnell, he (and, in the early years, J. T. Milik) made a substantial contribution to it. It will be interesting to see whether Qimron will include Strugnell as the junior author of the reconstruction when the text is finally published or whether, pursuant to Broshi’s testimony, Qimron will take credit for the lion’s share.
Beyond MMT, scholars who reconstruct other Dead Sea Scrolls (or, for that matter, any ancient text) will be entitled to the same legal rights to copyright that the Jerusalem court ruled Qimron has. Other scholars who reconstruct texts after they have been published will do so at their peril if the second reconstruction is substantially similar to the first one. What the “chilling effect” of this will be is hard to gauge. We will never know how many scholars decide not to reconstruct texts that have already been reconstructed because it is too dangerous to do so. The result will be that the first reconstruction—the reconstruction of the official editor—is likely to prevail, not because it is necessarily the best, but because other scholars may be unwilling to take the time to challenge it at the risk of a lawsuit.
Scholars are divided about the effect of the court’s decision. Some thirty of Qimron’s friends and colleagues in Israel signed a statement asking that BAR be brought to justice. The signatories included all three members of the Dead Sea Scrolls oversight committee of the Israel Antiquities Authority—Magen Broshi, Jonas Greenfield and Shemaryahu Talmon. Other members of the official editing team who signed the statement were Bilha Nitzan, Devorah Dimant, Sidnie White, Emile Peuch and Joseph Baumgarten. (Pointedly, the signatories did not include chief scroll editors Emanuel Tov or Eugene Ulrich.) The signatories even included Moshe Weirfield, a member of the editorial advisory board of Bible Review, BAR’s sister magazine. One American scholar, Richard Steiner of Yeshiva University, was writing an article for us and decided not to complete it because of our dispute with Qimron.
It is natural for scholars to rally to their own, to rise to the defense of a teacher, colleague or friend. The support Qimron has received from his friends and colleagues is reminiscent of the support John Strugnell’s friends and colleagues gave him at the time of the anti-Semitic remarks that finally led to his dismissal as chief scroll editor. Had these views of Strugnell not been made public, he would probably still be chief editor today. Incidentally, he has never retracted or apologized for these remarks and is said not only to continue to hold these views, but also to be preparing a defense of them. When his anti-Semitic views became public, over 70 of his students, friends and colleagues, wrote a joint letter to BAR, which—while distancing themselves from Strugnell’s remarks—lent their strong support to “a man who is 068extraordinarily generous with his vast knowledge and warm friendship … [and] who has contributed so much to the study of ancient Judaism.”a
The friends and colleagues of Qimron who signed the letter condemning BAR are obviously pleased with the Jerusalem court’s decision and say that it will protect scholars’ rights. Scholars will not be afraid to give handouts of their work at scholarly meetings, they say, because now it is clear that any copying or publishing of these handouts will be illegal.b
The court’s decision is clearly protective of the rights of the first scholar to reconstruct a text. The problem is that the court’s decision goes far beyond the first publication. Under the court’s decision, it is illegal to copy a reconstruction not only before the first scholar publishes it, but afterward as well. No one else can copy a reconstructed text any more than a published short story can be copied without the permission of the author.
Other scholars, including many in this country, are clearly concerned about the effect of the decision on future scholarship. Perhaps the scholarly community will have to adopt its own rule that anyone may copy a reconstructed text once it has been published, provided the first scholar’s work is cited. This would not have the force of law, but a scholarly rule of this kind would carry with it the presumed threat that any scholar who brought a copyright suit in defiance of this scholarly convention would not be held in very high esteem by his colleagues. Such a scholarly rule, if formally adopted, would also give other scholars the confidence and security they need to undertake a second reconstruction similar to the first.
Currently at high risk are Robert Eisenman, head of the Religious Studies Department at California State University, Long Beach, California, and Michael Wise of the University of Chicago. Eisenman and Wise have just published a volume containing what purports to be their reconstruction of MMT. Eisenman was a defendant in the case Qimron instituted against us in Jerusalem; Wise was not. The court pointedly noted that Eisenman utilized Qimron’s reconstruction in the Eisenman-Wise reconstruction of MMT, even though the introduction of the book claims that the authors made their own reconstruction. The court also noted Eisenman and Wise had a copy of Qimron’s reconstruction in their possession when they made their reconstruction. Whether Qimron will now sue Eisenman and Wise, or whether the lion is sated by his victory over BAR, is still not clear. In the meantime, the Eisenman-Wise book is selling briskly.
According to Qimron’s testimony, as quoted by the court, Qimron felt he had to sue BAR “in order to preserve his honor.” Perhaps his victory against BAR will restore his honor and Eisenman and Wise will be spared a lawsuit. Another reason Qimron may refrain from suing Eisenman and Wise is that he would have to sue them in the United States. Neither Eisenman nor Wise will likely risk a visit to Israel in light of the possibility that they might thereby subject themselves to suit there (that is how Eisenman was dragged into the case against BAR). Qimron is unlikely to sue in the United States, where court procedures differ substantially from those in Israel.
Moreover, as a result of his lawsuit against BAR, Qimron has achieved the fame he so craved. According to his testimony, as quoted by the court, “For years, I did almost no other work … My entire family lived in great privation … If my wife would complain, I would say, ‘see, this is our life. We will become famous.’” Qimron has indeed become famous. Whether he will be welcomed by the scholarly world as a conquering hero remains to be seen. But he is no longer an obscure scholar. He is known around the world. Having acquired such fame, he may no longer feel it necessary to sue all who tread on his copyright.
Perhaps the obstacles to scholarship outlined above are mere chimeras. It is clear that the Jerusalem court had little sympathy for BAR’s campaign to free the scrolls. Although Qimron was not able to prove any actual economic injury, the court utilized its discretion under Israel’s copyright statute to award Qimron damages even when no actual damages were proved. The court awarded the maximum amount permitted by the statute in such cases—20,000 shekels. In addition, the court awarded Qimron an additional 80,000 shekels for the mental anguish he suffered, reportedly the highest amount awarded for mental anguish in any case ever decided in an Israeli court. Clearly the court did not see what we did as part of a laudable effort to open up the scrolls to all scholars. Presumably in any future case, the defendant would not be burdened by the kind of baggage BAR carried into court. It would be nice if we could say that the case we lost would be precedent only where the defendant had too aggressively tried to open up original documents to other scholars. Unfortunately, the court’s opinion is not so limited. Its ruling is based on copyright law, not on the fact that we were too aggressive in trying to break the scroll monopoly. That is why other scholars will have to face the possibility of a lawsuit if they dare to publish a second reconstruction of an ancient text that is substantially similar to a previously published reconstruction.
Perhaps we may be permitted one further observation. Qimron testified that he brought this suit to preserve his honor. If his honor has been restored, he could go far toward demonstrating that this was indeed his motivation in bringing this suit by contributing his monetary recovery to the newly established Dead Sea Scroll Foundation. This foundation has been established by leading Dead Sea Scroll scholars, almost all of whom are, like Qimron, members of the official editing team. Its purpose is to further scroll research. BAR has no connection whatever with this foundation, but we enthusiastically endorse its work, as does Qimron, no doubt. It would be an appropriate vehicle through which Qimron could further research on the scrolls to which he is devoting his life.
The Jerusalem court has spoken: Elisha Qimron of Ben-Gurion University of the Negev owns the copyright on the reconstructed text of MMT, one of the most important, and still unpublished, Dead Sea Scrolls. Now the scholarly community will have to live with that decision—and deal with it in its own way. Our friends who feel outraged at the decision are asking us, as no doubt our readers will, why are we not appealing. As The Washington Post noted in an editorial titled “Post-Liberation Scrolls”: “Many scholars say they hope Mr. Shanks will appeal.” They cannot understand how a 20th-century […]