Notwithstanding the provisions of sections 106 and 106

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壹、前 言 Notwithstanding the provisions of sections 106 and 106 A, the fair use

壹、前 言 Notwithstanding the provisions of sections 106 and 106 A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include — § 107. Limitations on exclusive rights: Fair use, Copyright Act.

貳、本文:一、數位千禧著作權法 SAN FRANCISCO — A federal judge handed Google Inc. a major victory Wednesday

貳、本文:一、數位千禧著作權法 SAN FRANCISCO — A federal judge handed Google Inc. a major victory Wednesday by rebuffing media company Viacom Inc. 's attempt to collect more than $1 billion in damages for the alleged copyright abuses of Google's popular You. Tube service.

一、數位千禧著作權法 The ruling by U. S. District Judge Louis Stanton in New York embraces

一、數位千禧著作權法 The ruling by U. S. District Judge Louis Stanton in New York embraces Google's interpretation of a 12 -year-old law that shields Internet services from claims of copyright infringement as long as they promptly remove illegal content when notified of a violation. Viacom Loses To You. Tube In Landmark Copyright Case http: //www. huffingtonpost. com/2010/06/23/youtubeviacom-lawsuit-se_n_623256. html,2011/7/15

一、數位千禧著作權法 Digital Millennium Copyright Act,DMCA (1) does not have actual knowledge that the material

一、數位千禧著作權法 Digital Millennium Copyright Act,DMCA (1) does not have actual knowledge that the material or activity is infringing; upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material. (2) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.

一、數位千禧著作權法 (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously

一、數位千禧著作權法 (3) upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove. (DMCA)§ 512. Limitations on liability relating to material online, Cornell University Law School, http: //www. law. cornell. edu/uscode/html/uscode 17/usc_s ec_17_00000512 ----000 -. html,2011/7/15

一、數位千禧著作權法 Copyright Act, Section (DMCA)1201, U. S. A. : Circumvention of copyright protection systems)

一、數位千禧著作權法 Copyright Act, Section (DMCA)1201, U. S. A. : Circumvention of copyright protection systems) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

一、數位千禧著作權法 OSLO, Norway -- A Norwegian teenager has been cleared of DVD piracy charges

一、數位千禧著作權法 OSLO, Norway -- A Norwegian teenager has been cleared of DVD piracy charges in a landmark trial brought by major Hollywood studios. The Oslo court said Jon Johansen, known in Norway as "DVD Jon, " had not broken the law when he helped unlock a code and distribute a computer program enabling DVD films to be copied. "Johansen is found not guilty, " Judge Irene Sogn told the court. She said prosecutors could appeal against the unanimous verdict. Johansen said after the ruling that he would celebrate by "watching DVD films on unlicensed players. "

一、數位千禧著作權法 Prosecutors had asked for a 90 -day suspended jail term for Johansen, 19,

一、數位千禧著作權法 Prosecutors had asked for a 90 -day suspended jail term for Johansen, 19, who developed the program when he was 15. The teenager has become a symbol for hackers worldwide who say making software such as Johansen's - called De. CSS -- is an act of intellectual freedom rather than theft. De. CSS defeats the copyright protection system known as Contents Scramble System (CSS), which the entertainment industry uses to protect films distributed on DVDs.

一、數位千禧著作權法 Johansen created and published De. CSS so that he would be able to

一、數位千禧著作權法 Johansen created and published De. CSS so that he would be able to view DVDs on his Linux computer. He said the program meant the film industry no longer had a monopoly on making DVD players. The prosecution was brought after a complaint was filed by the Motion Picture Association (MPA), which represents the major Hollywood studios. The studios argued unauthorised copying was copyright theft and undermined a market for DVDs and videos worth $20 billion a year in North America alone.

一、數位千禧著作權法 But Johansen argued his code was necessary to watch movies he already owned,

一、數位千禧著作權法 But Johansen argued his code was necessary to watch movies he already owned, on his Linux-based computer, for which DVD software had not yet been written. He said since he owned the DVDs, he should be able to view them as he liked, preferably on his own computer. The court, citing consumer laws which protect consumers' fair use of their own property, agreed. The court ruled there was "no evidence" that Johansen or others used the decryption code called De. CSS for illegal purposes. Nor was there any evidence that Johansen intended to contribute to illegal copying.

一、數位千禧著作權法 The court also ruled that it is not illegal to use the De.

一、數位千禧著作權法 The court also ruled that it is not illegal to use the De. CSS code to watch DVD films obtained by legal means. In the United States, Johansen's case raised concerns among Internet users of what they see as a constitutional right to freedom of expression. A battle is raging in the U. S. over a 1998 copyright law that bans software like De. CSS. Even though Johansen's software is now outdated, it was the first to give the so-called source codes, or instructions, for how to decipher DVD codes.

一、數位千禧著作權法 Tuesday, January 7, 2003 Posted: 8: 28 AM EST (1328 GMT), CNN. com/TECHNOLOGY,

一、數位千禧著作權法 Tuesday, January 7, 2003 Posted: 8: 28 AM EST (1328 GMT), CNN. com/TECHNOLOGY, http: //edition. cnn. com/2003/TECH/01/07/dvd. johansen/i ndex. html

四、合理使用之判定參考 Under the Fair Use Doctrine and defense, the court must take into account:

四、合理使用之判定參考 Under the Fair Use Doctrine and defense, the court must take into account: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

四、合理使用之判定參考 Lawrence Steingold, Technology and Employer Update: Court Eliminates Defenses for Downloading Copyrighted Materials,

四、合理使用之判定參考 Lawrence Steingold, Technology and Employer Update: Court Eliminates Defenses for Downloading Copyrighted Materials, Querrey & Harrow, http: //www. querrey. com/assets/attachments/134. pdf, 2011/7/16 Copyright Act, Section 106, U. S. A. :Exclusive rights in copyrighted works Copyright Act, Section 107, U. S. A. :Limitations on exclusive rights: Fair use

八、數位權利管理 Digital Rights Management (DRM) technologies attempt to control what you can and can't

八、數位權利管理 Digital Rights Management (DRM) technologies attempt to control what you can and can't do with the media and hardware you've purchased. Bought an ebook from Amazon, but can't read it on your ebook reader of choice? That's DRM. Bought a DVD or Blu-Ray, but can't copy the video onto your portable media player? That's DRM. Bought a video-game, but can't play it today because the manufacturer's "authentication servers" are off-line? That's DRM. Bought a smart-phone, but can't use the applications or the service provider you want on it? That's DRM.

八、數位權利管理 Corporations claim that DRM is necessary to fight copyright infringement online and keep

八、數位權利管理 Corporations claim that DRM is necessary to fight copyright infringement online and keep consumers safe from viruses. But there's no evidence that DRM helps fight either of those. Instead, DRM helps big business stifle innovation and competition, by making it easy to quash "unauthorized" uses of media and technology. DRM has proliferated thanks to the Digital Millennium Copyright Act of 1998 (DMCA), which sought to outlaw any attempt to bypass DRM. Electronic Frontier Foundation, http: //www. eff. org/issues/drm, 2011 -07 -16

八、數位權利管理 Case decided by Justice Joseph Story that expanded the scope of copyright protection

八、數位權利管理 Case decided by Justice Joseph Story that expanded the scope of copyright protection and laid the foundations to the later fair use doctrine. The case involved a controversy over the use in a George Washington biography of excerpts from his letters that were previously published in a collection of Washington's papers. The commentary describes the ways in which the dispute created a clash between the popular republican ideology of the antebellum period, one that celebrated the broad and uninhibited access to knowledge by an informed citizenry, and a rising trend of understanding copyright in commercial market terms.

八、數位權利管理 The identity of the texts at issue sharpened this tension and produced competing

八、數位權利管理 The identity of the texts at issue sharpened this tension and produced competing images of Washington's papers as a national-public resource or commercial-private property. The commentary argues that Justice Story's decision of the case reinterpreted traditional copyright doctrines that had previously shielded most secondary uses of copyrighted works, subjected such uses to more stringent limitations, and laid the doctrinal and intellectual foundations for additional future developments in this vein. Primary Sources on Copyright (1450 -1900) http: //www. copyrighthistory. org/htdocs/data/commentar y/us_1841_com_107200702155. html, 2011/7/16

八、數位權利管理 The proposal is designated "R 4", and works as follows: Report - a

八、數位權利管理 The proposal is designated "R 4", and works as follows: Report - a complainant serves a notice of infringing material Remove- the ISP removes it, without judging the merits Respond- the author can contest this by asking for replacement Replace- again the ISP acts automatically

八、數位權利管理 The key legal supports that are needed within such legislation are: the ISPs

八、數位權利管理 The key legal supports that are needed within such legislation are: the ISPs are not liable if they follow the process and malicious or negligent claimants can be penalised by the courts. Richard Clayton(Internet Expert, Thus plc), Judge & Jury? how "Notice and Take Down" gives ISPs an unwanted role in applying the Law to the internet. http: //www. cl. cam. ac. uk/~rnc 1/Judge_and_Jury. html, 2011/7/16

九、三百多字之官司 In 1977, former President Ford contracted with petitioners to publish his as yet

九、三百多字之官司 In 1977, former President Ford contracted with petitioners to publish his as yet unwritten memoirs. The agreement gave petitioners the exclusive first serial right to license prepublication excerpts. Two years later, as the memoirs were nearing completion, petitioners, as the copyright holders, negotiated a prepublication licensing agreement with Time Magazine under which Time agreed to pay $25, 000 ($12, 500 in advance and the balance at publication) in exchange for the right to excerpt 7, 500 words from Mr. Ford's account of his pardon of former President Nixon.

九、三百多字之官司 Shortly before the Time article's scheduled release, an unauthorized source provided The Nation

九、三百多字之官司 Shortly before the Time article's scheduled release, an unauthorized source provided The Nation Magazine with the unpublished Ford manuscript. Working directly from this manuscript, an editor of The Nation produced a 2, 250 -word article, at least 300 to 400 words of which consisted of verbatim quotes of copyrighted expression taken from the manuscript. It was timed to "scoop" the Time article. As a result of the publication of The Nation's article, Time canceled its article and refused to pay the remaining $12, 500 to petitioners.

九、三百多字之官司 Petitioners then brought suit in Federal District Court against respondent publishers of The

九、三百多字之官司 Petitioners then brought suit in Federal District Court against respondent publishers of The Nation, alleging, inter alia, violations of the Copyright Act (Act). The District Court held that the Ford memoirs were protected by copyright at the time of The Nation publication and that respondents' use of the copyrighted material constituted an infringement under the Act, and the court awarded actual damages of $12, 500. The Court of Appeals reversed, holding that The Nation's publication of the 300 to 400 words it identified as copyrightable expression was sanctioned as a "fair use" of the copyrighted material under 107 of the Act.

九、三百多字之官司 Section 107 provides that notwithstanding the provisions of 106 giving a copyright owner

九、三百多字之官司 Section 107 provides that notwithstanding the provisions of 106 giving a copyright owner the exclusive right to reproduce the copyrighted work and to prepare derivative works based on the copyrighted work, the fair use of a copyrighted work for purposes such as comment and news reporting is not an infringement of copyright. Section 107 further provides that in determining whether the use was fair the factors to be considered shall include: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect on the potential market for or value of the copyrighted work.

九、三百多字之官司 The Nation's article was not a "fair use" sanctioned by 107. Pp. 542

九、三百多字之官司 The Nation's article was not a "fair use" sanctioned by 107. Pp. 542 -569. (a) In using generous verbatim excerpts of Mr. Ford's unpublished expression to lend authenticity to its account of the forthcoming memoirs, The Nation effectively arrogated to itself the right of first publication, an important marketable subsidiary right.

九、三百多字之官司 (b) Though the right of first publication, like other rights enumerated in 106,

九、三百多字之官司 (b) Though the right of first publication, like other rights enumerated in 106, is expressly made subject to the fair use provisions of 107, fair use analysis must always be tailored to the individual case. The nature of the interest at stake is highly relevant to whether a given use is fair. The unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use. And under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.

九、三百多字之官司 (c) In view of the First Amendment's protections embodied in the Act's distinction

九、三百多字之官司 (c) In view of the First Amendment's protections embodied in the Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use, there is no warrant for expanding, as respondents contend should be done, the fair use doctrine to what amounts to a public figure exception to copyright. Whether verbatim copying from a public figure's manuscript in a given case is or is not fair must be judged according to the traditional equities of fair use.

九、三百多字之官司 (d) Taking into account the four factors enumerated in 107 as especially relevant

九、三百多字之官司 (d) Taking into account the four factors enumerated in 107 as especially relevant in determining fair use, leads to the conclusion that the use in question here was not fair. (i) The fact that news reporting was the general purpose of The Nation's use is simply one factor. While The Nation had every right to be the first to publish the information, it went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a "news event" out of its unauthorized first publication.

九、三百多字之官司 The fact that the publication was commercial as opposed to nonprofit is a

九、三百多字之官司 The fact that the publication was commercial as opposed to nonprofit is a separate factor tending to weigh against a finding of fair use. Fair use presupposes good faith. The Nation's unauthorized use of the undisseminated manuscript had not merely the incidental effect but the intended purpose of supplanting the copyright holders' commercially valuable right of first publication.

九、三百多字之官司 (ii) While there may be a greater need to disseminate works of fact

九、三百多字之官司 (ii) While there may be a greater need to disseminate works of fact than works of fiction, The Nation's taking of copyrighted expression exceeded that necessary to disseminate the facts and infringed the copyright holders' interests in confidentiality and creative control over the first public appearance of the work.

九、三百多字之官司 (iii) Although the verbatim quotes in question were an insubstantial portion of the

九、三百多字之官司 (iii) Although the verbatim quotes in question were an insubstantial portion of the Ford manuscript, they qualitatively embodied Mr. Ford's distinctive expression and played a key role in the infringing article.

九、三百多字之官司 (iv) As to the effect of The Nation's article on the market for

九、三百多字之官司 (iv) As to the effect of The Nation's article on the market for the copyrighted work, Time's cancellation of its projected article and its refusal to pay $12, 500 were the direct effect of the infringing publication. Once a copyright holder establishes a causal connection between the infringement and loss of revenue, the burden shifts to the infringer to show that the damage would have occurred had there been no taking of copyrighted expression.

九、三百多字之官司 Petitioners established a prima facie case of actual damage that respondents failed to

九、三百多字之官司 Petitioners established a prima facie case of actual damage that respondents failed to rebut. More important, to negate a claim of fair use it need only be shown that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work. Here, The Nation's liberal use of verbatim excerpts posed substantial potential for damage to the marketability of first serialization rights in the copyrighted work.

九、三百多字之官司 HARPER & ROW v. NATION ENTERPRISES, 471 U. S. 539 (1985), HARPER &

九、三百多字之官司 HARPER & ROW v. NATION ENTERPRISES, 471 U. S. 539 (1985), HARPER & ROW, PUBLISHERS, INC. , ET AL. v. NATION ENTERPRISES ET AL. , CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, Argued November 6, 1984 Decided May 20, 1985 , No. 83 -1632. http: //caselaw. lp. findlaw. com/scripts/getcase. pl? court=U S&vol=471&invol=539, 2011/7/16

十一、參議員之提案 Senator Leahy introduced the PROTECT-IP Act (S. 968) on May 12, designed to

十一、參議員之提案 Senator Leahy introduced the PROTECT-IP Act (S. 968) on May 12, designed to combat websites “dedicated to infringing activities. ” The legislation is cosponsored by Sens. Schumer, Feinstein, Whitehouse, Graham, Kohl Coons, and Blumenthal.

十一、參議員之提案 According to the official summary, the legislation would allow the Justice Department obtain

十一、參議員之提案 According to the official summary, the legislation would allow the Justice Department obtain court orders against these sites and require third parties to “either prevent access to the internet site (in the case of an internet service provider or search engine), or cease doing business with the internet site (in the case of a payment processor or advertising network). ”

十一、參議員之提案 Unlike last year’s Combating Online Infringements and Counterfeits Act, private IP owners can

十一、參議員之提案 Unlike last year’s Combating Online Infringements and Counterfeits Act, private IP owners can bring similar actions against payment processors and advertisers. The PROTECT-IP Act also contains a safe harbor firms that take voluntary actions against sites selling illegitimate pharmaceuticals online. Mike Palmedo, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT-IP) Act Introduced in the Senate, http: //infojustice. org/archives/3401, 2011/5/16

参、結論與建議 GUIDELINES I. Single Copying for Teachers A single copy may be made of

参、結論與建議 GUIDELINES I. Single Copying for Teachers A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class: A chapter from a book; An article from a periodical or newspaper; A short story, short essay or short poem, whether or not from a collective work; A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

参、結論與建議 II. Multiple Copies for Classroom Use Multiple copies (not to exceed in any

参、結論與建議 II. Multiple Copies for Classroom Use Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that: The copying meets the tests of brevity and spontaneity as defined below; and, Meets the cumulative effect test as defined below; and, Each copy includes a notice of copyright.

参、結論與建議 Definitions Brevity (i) Poetry: (a) A complete poem if less than 250 words

参、結論與建議 Definitions Brevity (i) Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.

参、結論與建議 (ii) Prose: (a) Either a complete article, story or essay of less than

参、結論與建議 (ii) Prose: (a) Either a complete article, story or essay of less than 2, 500 words, or (b) an excerpt from any prose work of not more than 1, 000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or periodical issue.

参、結論與建議 (iii) 'Special' works: Certain work in poetry, prose or in 'poetic prose' which

参、結論與建議 (iii) 'Special' works: Certain work in poetry, prose or in 'poetic prose' which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2, 500 words in their entirety. Paragraph 'ii' above notwithstanding such 'special works' may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

参、結論與建議 (Each of the numerical limits stated in 'i' and 'ii' above may be

参、結論與建議 (Each of the numerical limits stated in 'i' and 'ii' above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph. ) AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING in NOT-FOR-PROFIT EDUCATIONAL INSTITUTIONS http: //www. rbs 2. com/copyr 2. htm