[cc-licenses] Differences between the anti-DRM clauses in the U.S. and unported licenses
James Grimmelmann
james at grimmelmann.net
Mon Dec 4 11:52:31 EST 2006
Francisco and I had noticed, in our discussion about the text of the
proposed wording changes to the anti-DRM clauses, that there were some
differences betewen the U.S. and unported versions. Based on some
off-list discussions and some research, I can report two important things:
First, the lack of the word "effective" from the U.S. version (which
says "technological measures" where the unported version says "effective
technological measures") reflects the different terms used in the DMCA
and in the WIPO treaties (the Copyright Treaty (WCT) and Performers and
Phonograms Treaty (WPPT)). This makes sense. The generic/unported
license tracks the terminology used by the major international treaties
on the issue. The U.S. version tracks U.S. law. The difference is not
otherwise significant, and I expect that the two versions will be
applied identically.
Second, the proposed U.S. license and the proposed unported license use
many different phrasings to talk about the rights protected by the
anti-DRM clause. I don't think that there is any intended semantic
difference among the various phrases, which makes the divergence surprising.
U.S. 4.a:
"to exercise of the rights granted to that recipient under the
terms of the License"
"to exercise the right granted to them under the License"
U.S. 4.b:
"to exercise of the rights granted under the License"
"to exercise the rights granted to them under the terms of the License"
Unported 4.a:
"to exercise the rights granted to that recipient under the terms of
the License"
"to exercise their rights granted under the License"
Unported 4.b:
"to exercise of the rights granted under the license"
"to exercise their rights granted under the License"
A -- Three of the phrases insert "of" after "exercise," which seems like
a drafting error.
B -- The U.S. license once uses "right" instead of "rights," which also
seems like a drafting error in context.
C -- Each license uses "to that recipient" once; two of the U.S. phrases
use "to them" instead; the remaining four omit this phrase. There is no
clear pattern to which use which.
D -- Three of the phrases say "under the terms of the License;" the
remaining five say "under the License." There is again no clear pattern
as to which use which.
These discrepancies have been brought to Mia's attention and CC will be
giving the exact wording another very close look.
James
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