On 4/23/98, Ari Kahan <akahan[_at_]netcom.com> wrote:
> >
> > I think the clause could have been written more clearly as "...which
> > are either (1) not authorized by the authors concerned or (2) not
> > permitted by law.
[snip]
> If the author restricts a particular act BY CONTRACT, then performing
> that act is still "permitted by law". But not permitted by the
> contract. It's not generally illegal to breach a contract; it's just a
> breach of the contract. This clause, as I read it, requires people to
> refrain from violating certain authors' rights both under the law and
> under contracts.
An interesting distinction. If a law provides only civil remedies and the damages possible are no different than they would be in a breach suit, I'm not sure whether the distinction has any meaning. But, more importantly, what you're saying is that the Article intended to give authors a rather significant amount of power, meaning that in certain areas the law was going to help enforce their contracts.
As far-reaching as I find even that conclusion, I would say that the provision goes even further if interpreted the way you (and others) interpret it. After all, it doesn't say anything about an agreement between the author and the user; it just says unauthorized. So, what if the author, not by agreement but by his technological measure, unilaterally says you can't do whatever? It would then suddenly become unlawful for someone to circumvent that measure even though they hadn't agreed to anything. That's the result that I think this interpretation leads you to.
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