First Person: When Scholars Call In the Lawyers

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This past spring, I was a participant at a fascinating scholarly conference on intellectual property and the Dead Sea Scrolls. The conference, hosted by the University of Edinburgh, was marred, however, by a threatening letter addressed to organizers by lawyers for Elisha Qimron, professor at Ben-Gurion University of the Negev, in Israel. Qimron was rightly peeved that he was not invited to give a paper at the conference. One wonders, though, whether the slight was really so grievous that Qimron had to bring his high-powered Israeli lawyers into it.

Readers may recall that in 1991 Qimron sued BAR (or, more precisely, its editor and the Biblical Archaeology Society) in an Israeli court for publishing a copy of the 120-line Dead Sea Scroll text that he had reconstructed, known as MMT.^a Qimron was wildly successful. The judge awarded him 100,000 shekels, reportedly the largest award of its kind ever handed down in an Israeli court. We have appealed the decision to the Israeli Supreme Court and are awaiting a decision.

The case is generally recognized by both the legal community and the scholarly community as extremely important. At least four law review articles have already been written about it, and a group of American copyright lawyers has asked the Israeli Supreme Court for permission to file a friend-of-the-court brief (something that is rare in the Israeli judicial system). The University of Edinburgh’s faculty of divinity and the Shepherd & Wedderburn Centre for Research in Intellectual Property and Technology joined with the Cornell University Law School in Ithaca, New York, to convene a scholarly conference to consider “issues arising from the lawsuit undertaken by Prof. Elisha Qimron.”

I was invited to give a paper, but Qimron was not. This was a mistake. He should have been invited. Hoping to avoid a confrontation, the organizers drew a distinction between the case and the “issues arising” from it. It is hard to see this distinction: How can one discuss issues arising from the case without discussing the case itself? Besides, since one of the protagonists was invited to give a paper, the other should have been accorded the same privilege.

Perhaps BAR can rectify this error by opening its pages to Qimron or his lawyers. We would be pleased to publish a statement of reasonable length by any or all of them, stating their views on the case and its implications. Such a statement would receive far wider distribution in BAR than would a paper read at a scholarly conference.

Still, one wonders whether Professor Qimron needed to call in his heavy-handed lawyers. Please don’t misunderstand me: They are very good lawyers, and they do what lawyers are supposed to do. Indeed, in my paper at the conference, I noted that Qimron’s lawyers “wiped up the floor with me. There wasn’t one matter of any significance that we won.”

But should lawyers immediately be brought into every scholarly dispute? There is no doubt that Qimron is fond of lawyers. When we published a collection of photographs of previously unpublished Dead Sea 071Scrolls and included in the foreword a copy of Qimron’s reconstruction of MMT that had appeared without authorization in a Polish journal, Qimron didn’t call to complain. He went straight to his lawyer, who simply went to court and filed suit, at the same time applying for and obtaining a world-wide injunction against us, prohibiting distribution of our book.

When Qimron learned that other scholars were also working on MMT, he had his lawyer write them a threatening letter, warning them that “any use of Professor Qimron’s reconstructed text is a violation of his copyright and Professor Qimron will take all steps available to him under both American and Israeli law to protect that copyright.”

When Qimron published his edition of MMT in 1994, he had his lawyers negotiate with Oxford University Press a special and unusual copyright notice, giving Qimron the entire copyright in the contents of the book to the exclusion of his senior coauthor, Harvard professor John Strugnell. (Incidentally, a paper by Strugnell was read at the Edinburgh conference.)

Although the book is copyrighted in Qimron’s name, Qimron gave Oxford authority to grant permission to others to copy the text. Oxford gave such permission to BAR. Again, Professor Qimron was angry, and he had his lawyer write to Oxford University Press to complain to them, accusing them of unethical conduct.

And when Qimron’s complaints that he had not been invited to the Edinburgh conference proved unavailing, he naturally called in his lawyers once again. The lawyers’ lengthy letter was addressed to the three scholars who convened the conference, and copies were sent to their university superiors. The letter is exhaustive and, some might say, exhausting. It ends with a peculiar twist. It warns the recipients that the letter “should not be forwarded or otherwise disseminated” without the lawyers’ consent. Moreover, if it is forwarded to anyone else, such persons should notify Qimron’s lawyers. And all such persons are put on notice: “You may not copy, alter, forward or otherwise disseminate this communication.”

So the conference organizers were fearful of allowing anyone to see the letter Qimron’s lawyers sent them. They would only describe it as “threatening.”

Despite the warning at the end of the lawyers’ letter, its analysis of the legal issues in Qimron vs. Shanks is by no means bad. Indeed, there is much that we can agree with. According to Qimron’s lawyers, the lower court decided that Qimron had a copyright in the arrangement of the noncontiguous fragments of MMT. We agree that this was the court’s holding. Qimron’s lawyers also say that the court granted Qimron a copyright in the reconstructions in the lacunae (gaps) in the texts that have not survived and that Qimron filled in. Whether or not the court made this determination is much iffier. The court noted that Qimron’s “purpose was to reconstruct the original scroll.” Clearly, he would not have a copyright in the words of the original author of MMT. Nevertheless, Qimron’s lawyers’ position is arguable.

The Edinburgh conference was concerned, however, not so much with the precise ruling of Qimron vs. Shanks, but with its implications. For example, an early volume of Dead Sea Scrolls was published by John Allegro, a member of the small, official publication team who later fell out with his colleagues on the team. John Strugnell called Allegro “the stone in the soup” and wrote a critical article about Allegro’s volume that was longer than the volume itself. Since Allegro’s volume is generally recognized as needing revision, a new edition has been authorized and assigned to other scholars, Allegro having died in the meantime. But did Allegro have a copyright in the pieces he arranged? Did he have a copyright in the lacunae he filled in? If so, the copyright is now owned by Allegro’s widow. Do the new editors need to get Mrs. Allegro’s permission to use whatever is valid in her husband’s arrangements and reconstructions? These are the kinds of issues raised by Qimron vs. Shanks.

In the corridors of scholarly conferences, Qimron himself remains a puzzle. He is almost universally regarded as a fine, if narrow, scholar. He rarely if ever lectures to a popular audience. No one believes he has been in any way hurt by BAR’s publication of the short text of MMT. His edition, together with extensive commentary, was subsequently published in a prestigious volume, in which his name preceded that of the senior author. There can be no doubt that his name will forever be connected with MMT. He has lost no money because of BAR’s publication, although this is not necessary to prevail in a copyright suit. Did he simply see the chance to win a big judgment? In his testimony at the trial, he said he sued to save his “honor.” Perhaps in the space we are making available to him in BAR he will explain what motivates him.

For scholars, however, the larger question concerns not Qimron but whether they need to consult a lawyer as they pursue their research.

This past spring, I was a participant at a fascinating scholarly conference on intellectual property and the Dead Sea Scrolls. The conference, hosted by the University of Edinburgh, was marred, however, by a threatening letter addressed to organizers by lawyers for Elisha Qimron, professor at Ben-Gurion University of the Negev, in Israel. Qimron was rightly peeved that he was not invited to give a paper at the conference. One wonders, though, whether the slight was really so grievous that Qimron had to bring his high-powered Israeli lawyers into it. Readers may recall that in 1991 Qimron sued BAR (or, […]