There were several public answers to the questions. Here's a review:
Article 11 of the WIPO Copyright Treaty of 1996 states:
"Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law."
All who responded to this question, with varying degrees of firmness, said yes.
3. If the answer to #1 is yes, we then have not(authorized or permitted), and under that assumption I have the following questions:
Peter said it was one possible meaning. Mac, with his own inimitable brand of impeccable logic, said yes.
b. Is the meaning of that construction "either not authorized or not permitted"?
Peter said this was another possible meaning. Ari and Seth voted for this one, Ari with reservations.
c. Are both a and b possible, correct interpretations?
Seth said no. Ari didn't answer. Peter said yes but seemed to think that both (a) and (b) were the same.
(Mikus was nonresponsive in all of this, essentially avoiding being constrained by the questions, making me think that in real life he's a mathematician like my brother who is also nonresponsive. :-) )
No one much liked some of the questionnaire's rules. So, now let's look at the meaning. A content owner (Connie) puts in some sort of blocking technological measure for his work. Someone wants to circumvent (Cecil) that measure. The article says that there should be protection and remedies against that circumvention if the measure restricts acts that are not authorized by Connie or permitted by law. Now, if we make that last part the way most people voted, it would come out like this:
The article says that there should be protection and remedies against that circumvention if the measure restricts acts that are either (1) not authorized by Connie or (2) not permitted by law.
If that meaning is correct, it means that there should be a legal remedy for Connie if Cecil circumvents a measure that prevents someone from doing anything to that work that she didn't authorize. Doesn't have to be currently illegal. Can be anything at all. We have an OR, so #2 doesn't have to be satisfied. This is completely open-ended and makes no sense to me.
Viewed from a meaning point of view, a logic point of view, and a grammatical point of view, I vote for (b). With the kind and competent help of another listmember (Tyler Ochoa) off list, Tyler said the following (for source):
"Strunk & White ... DOES say (on p. 54) that 'not A nor B' is incorrect, and that the proper usage is either 'not A or B' or 'neither A nor B.' I take that as authority that the latter two statements are equivalent."
It was Tyler who felt strongly that the only possible interpretation of the Article 11 clause was "neither A nor B," and I agree. It would then make the statement read as follows:
The article says that there should be protection and remedies against that circumvention if the measure restricts acts that are neither authorized by Connie nor permitted by law.
I believe the intent (and this is murky because it is likely that there is just one intent with so many parties involved) of the article was to give added protection (in the case of countries that already had some protection) to content owners in this regard but *not* to prohibit new acts, at least with respect to those countries that already prohibit copying of copyrighted works, as we do. The US apparently originally submitted a proposal that *just* had "without authority" and later modified it to "without authority or the law." For more on the evolution of the language, see generally Pamela Samuelson, The Digital Agenda Of The World Intellectual Property Organization: Principal Paper: The U.S. Digital Agenda at WIPO, 37 Va. J. Int'l L. 369 (1997). For more on this specifically see footnote 243 at p. 412 from the same article.
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