Remembering Hershel Shanks (1930-2021) and the Dead Sea Scrolls copyright case: As relevant as ever

If there is a place in the world to come for iconic copyright disputes, then surely the 1990’s Israeli case of Kimron v. Shanks, better known as the Dead Sea Scrolls case, will enjoy permanent tenancy. This Kat was reminded of it when he read that Hershel Shanks, the chief defendant in that dispute, here and here, passed away recently at the age of 90. For a generation of Kat readers who may be less familiar with the case (and even for those who are), Shanks’ death is an opportune time to recall the underlying challenge posed by the judgment, namely, what happens when copyright law rests uneasily along aside scholarship and research.

This case was, of course, not about copyright protection of the scrolls themselves, religious manuscripts handwritten over a span of several hundred years more than two millennia ago, and which were then preserved in caves benefitting from the hot, dry climate of the Dead Sea area. Discovered in the mid-20th century (a story in itself), these manuscripts are unique both because of their age and the light that they cast on our understanding of scripture against the backdrop of the turbulence of that time. But copyright issues in the original manuscripts—sorry, no.

Rather, the dispute arose when copyright rubbed up against hard-core biblical scholarship laced with personal and institutional intrigue. The scroll at issue has been termed MMT, an epistle containing juicy (if you are a Biblical scholar) contents regarding the ascetic sect that lived in the Dead Sea area around the time of Jesus. “Juicy”, but not accessible to scholars. In turns out that MMT, and many other parchments and scrolls from that period, had been housed in an institute in East Jerusalem, and scholarly access to them was severely restricted.

To get a sense of the research task regarding the scrolls, imagine entering a cave and finding, scattered, hundreds, if not thousands, of parchment fragments, So Job One was to try and piece together these fragments. Such a reconstruction revealed gaps withing a given manuscript. Job Two was then to fill in the missing contents. Regarding MMT, Job One was principally carried out by John Strugnell of Harvard and Elisha Qimron, of the Ben Gurion University in Israel, while Job Two was carried out principally by Qimron.

As for MMT, this meant 121 lines of reconstructed parchment (containing letters and phrases that could be identified with an extremely high degree of certainty), and 11 lines of reconstructed contents, the result of Qimron’s scholarly conclusions. Together, the entire text was referred to as the Compiled Text.

The problem was that the research team responsible for the scrolls (largely Harvard-affiliated), led by Strugnell, was tortoise-like slow, if not intentionally obstructionist, in releasing the scrolls to the research community, in effect blocking access to them. Qimron was the rare exception regarding right of access, assiduously toiling away as he reconstructed the manuscript by completing the missing contents.

Enter Hershel Shanks, a Harvard-trained lawyer, who had decided in the 1970’s to leave the world of law and establish a journal, Biblical Archeology Review (“BAR”). Against all odds, Shanks succeeded, and BAR became a powerful force in the charged world of Biblical archeology. And nothing enraged Shanks more than the lack of scholarly access to the Dead Sea scrolls, perhaps the richest Biblical research trove ever. Shanks, through BAR, railed against this suppression of materials.

Shanks was determined to make them available to the public. As for MMT, this meant acquiring a copy of the Compiled Text and thereafter publishing it in BAR (without Qimron’s permission, who at the same time had contracted with Oxford University Press). Law suits fallowed. In a Jerusalem courtroom that attracted journalists from all over the world, Qimon succeeded in convincing the court that he was entitled to copyright by virtue of his contributions to the Consolidated Text.

Judge (later Supreme Court Justice) Dalia Dorner wrote—

With putting all the pieces physically next to another, there is not necessarily originality; however, the composition of the Compiled Text, based upon philologic and Halachic research that the author conducted from the original, is an original Qimron in connection with the Consolidated Text.

The judgment was affirmed nearly seven years later by the Israel Supreme Court, and it has been much discussed and debated ever since (e.g. here). For this Kat, the most intriguing part of the case dealt with the interface between copyright and scholarship against the backdrop of the publication in BAR of the Compiled Text. Several aspects are particularly salient.

First, can the suppression of public access to the manuscripts by Strugnell and his colleagues provide the basis for a public interest exception? The argument was raised before Judge Dorner, but she paid little attention to it. That is a pity. While exception-based copyright regimes probably would not allow even a whiff of such a claim, consider whether common-law systems might grant more leeway about whether to recognize such an exception.

Protection of copyright is important, but so is the right to carry out scholarship. Even if the answer is-- “no public interest exception”, the reasons for rejecting the argument merited more attention in the court’s judgment.

Second, was Qimron’s contribution of the 11 lines to the Consolidated Text such a clear instance of copyright originality? Judge Dorner made much of the fact that Qimron, in filling in the missing words, was carrying out an act of high-level scholarship. But her observations also underscored the potential clash between copyright and scholarship, between creative originality and academic processes.

One way to look at it is that to the extent that Qimron’s scholarship yielded a final text that was true, or nearly so, to the original composed by the Teacher of Righteousness two millennia ago, the weaker is his claim for copyright protection. Think about the “merger” doctrine under U.S. copyright law: where the idea and expression are more or less the same, i.e., they merge, no copyright protection subsists. Might not something similar be applicable here, wherein the Consolidated Text merely recreates the contents of the original epistle? After all, copyright protection is not the same thing as cultural preservation.

Third, what about the converse? To the extent that Qimron’s reconstruction deviates from the original text, does that mean that his copyright position actually improves, since it far less likely that an act of third-party independent reconstruction could yield the same result. Stated otherwise. copyright protection is stronger the more that his scholarship can be called into question.

Three decades after Judge Dorner’s decision was affirmed, such questions about the interface of copyright law and scholarship remain.

A coda: Shanks was born and grew up in a small town in western Pennsylvania, called Sharon. As it happens, this Kat spent several years as a tyke with his family in Sharon. During that time, there is a (high?) likelihood that this Kat’s family purchased their shoes from the Shanks family shoe store. Maybe our coming together in that Jerusalem courtroom was put into motion 40 years earlier in Sharon, a merger of circumstance in the making.

By Neil Wilkof

Pictures on top right and bottom right are in the public domain.

Picture of Hershel Shanks on left is a video screengrab from the Charlie Rose Show in 1992.