Re: WIPO Copyright Treaty Article 11 & Grammar

On 04/24/98, Karl Means <kmeans[_at_]srgpe.com> wrote:
>
> Back on the main topic, I may be dense, but you folks lost me yesterday.
> I'm not sure I see the difference(s) in the alternate interpretations:
>
> > 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.
>
> and
>
> > 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'd read "either not... or not..." as the equivalent of "neither...
> nor..." in this context. Somebody please help.

The phrase "either not authorized ... or not permitted" includes three categories of acts: (1) acts that are not authorized but are permitted by law; (2) acts that are not permitted by law but are authorized [note that this is a non-existent category under U.S. law]; and (3) acts that are neither authorized nor permitted. Obviously, "neither authorized nor permitted" includes only the last category.

So, the main question is: should the treaty language "not authorized or permitted by law" be interpreted as "not authorized OR not permitted by law," or should it be interpreted as "neither authorized nor permitted by law," the latter being the equivalent of "not authorized AND not permitted by law." In my previous message, I took the position that the second interpretation is the only proper interpretation as a matter of grammar (and boolean logic); and that the second interpretation is supported by substance as well.

Your example illustrates the confusion between the two. You said:

> the WIPO Article suggests that she [Connie] should have recourse
> against a party who defeats her "technological method" for (I) a use she
> has not authorized, or (ii) a use not permitted by law. The implication
> is that Connie should not have legal remedies against a third party who
> defeats her technological method for the purpose of making a back-up or
> archival copy ("permitted by law").

If the language were interpreted as you suggest in the first sentence, then Connie WOULD have legal remedies against a third party who defeats her technological method for the purpose of making an archival copy, because that use is not authorized. It doesn't matter that it is permitted by law, because the use of "or" requires only that at least one of the two conditions exist. [This falls into category one in my explanation above.]

The only sensible meaning, as you suggest in the second sentence, is that Connie should NOT have legal remedies against a third party in these circumstances. But that requires that the phrase "not authorized or permitted" be interpreted to mean "neither authorized nor permitted," which is the equivalent of "not authorized AND not permitted." And I have argued that this is the [only] proper grammatical interpretation as well.

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Mon Apr 27 1998 - 18:32:33 GMT