Nimmer on the Dead Sea Scrolls

GW’s IP Symposium tonight hosted David Nimmer on Copyright in the Dead Sea Scrolls.

Nimmer went through the history of the dispute, which he has comprehensively discussed in Copyright in The Dead Sea Scrolls: Authorship and Originality, in the 2001 Houston Law Review. He noted that Shanks, the unauthorized publisher of the Qimron/Strugnell reconstruction of the Dead Sea Scrolls, declined to name Qimron in his attacks on Strugnell. But the formulation “Strugnell and a colleague” mortally offended Qimron, who sued based on his loss of glory.

The question is what Qimron did – was it creative? Qimron couldn’t actually come up with much, only changing the orientation of some fragments and interpreting a word in the middle of ritual code to mean a different word that was pronounced the same way. The Israeli court applied US law and found in favor of Qimron on his copyright infringement/quasi-moral right claim; the Israeli Supreme Court affirmed based on Israeli law because 4 copies of the infringing book had gone to Israel.

Qimron was claiming that his creative insight was to change the orientation of a fragment, but that’s just like reframing a painting, which creates no copyright therein. Likewise, there’s no copyright in single words, so changing the spelling of a word isn’t a copyrightable contribution.

But the deeper question is what Qimron was doing – was he engaged in creative work at all? Or was he engaged in trying to find out what other people had done in the past? If he was trying to figure out what the Scrolls meant, he was asserting something about the truth of his reconstruction. The assertion of factual, historical truth is inconsistent with a claim of creation. If you get up and quote Shakespeare, and I correct your misquote, my quote of what Shakespeare said isn’t copyrightable – but that’s what Qimron was doing.

Many works have now been published about the Scrolls; every single scholar credits Qimron – no one thinks Shanks did the reconstruction of the Scrolls. The people who bought Shanks’s book knew who “Strugnell and a colleague” were, since it wasn’t the kind of book you buy if you aren’t deeply immersed in the scholarship. So there was no moral rights violation.

Shouldn’t Qimron’s 12 years of effort count? He’s an authority, not an author. In response to questions: even his reconstructions and gap-fillings were “readings,” in that he was filling in information based on what he knew from other sources, as if you were to read “oh say can you see by --- ------ ----- light.” Qimron had his reasons for filling in each lacuna in the Scrolls based on his knowledge and study. Even if he didn’t see the word, his choices are the choices of a reader, not a writer.

Q: Wouldn’t all these claims apply to the work of a translator?

A: Qimron deserves a copyright for his translation.

Q: But why isn’t reassembling a text to make it comprehensible to other people a creative act?

A; The Talmud has a story in which each of 72 scholars produced exactly the same translation of the Septuagint; it isn’t a credible story, because there are so many different locutions that can be used in translation.

Q: Does Israel follow the “sweat of the brow” doctrine?

A: The Israeli Supreme Court cited Feist and said it wasn’t protecting industrious compilation, but it went on for page after page about how much work Qimron had done. So it’s hard to say.

Further story: there was a side lawsuit when Qimron’s lawyer sent threatening letters to two other scholars who’d reverse engineered published concordances to produce a text for the Scrolls, claiming that “any use” of the text violated copyright law. The scholars filed for declaratory relief, but then Qimron left the country and the case went nowhere.

Coda: even after the Israeli Supreme Court ruled, Qimron said that he wished he had more time to polish the manuscript. There are some people who simply don’t want to publish. When the work is one of intense general interest and the scholar in control of it didn’t write it, he has no interest in suppressing its publication.