[FAQ] 淺談數字千年版權法 - Digital Millennium Copyright Act (DMCA)

Laputa

在關於搬家後人氣持續下降的問題，thanatos曾經說過關於DMCA的問題，我既然是數位版版主，這種基本知識不會不知道 (何況我是某3間論壇的管理員，根本沒可能吧)。

估計沒多少人知道什麼是DMCA，所以略整理一下吧。

英文版維基百科頁面：Digital Millennium Copyright Act
中文版維基百科頁面：數位千禧年著作權法

第一部分，thanatos好像沒怎麼提過。

Title I: WIPO Copyright and Performances and Phonograms Treaties Implementation Act

DMCA Title I, the WIPO Copyright and Performances and Phonograms Treaties Implementation Act, amends U.S. copyright law to comply with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, adopted at the WIPO Diplomatic Conference in December 1996. The treaties have two major portions. One portion includes works covered by several treaties in U.S. copy prevention laws and gave the title its name. For further analysis of this portion of the Act and of cases under it, see WIPO Copyright and Performances and Phonograms Treaties Implementation Act.

The second portion (17 U.S.C. 1201) is often known as the DMCA anti-circumvention provisions. These provisions changed the remedies for the circumvention of copy-prevention systems (also called "technical protection measures") and required that all analog video recorders have support for a specific form of copy prevention created by Macrovision (now Rovi Corporation) built in, giving Macrovision an effective monopoly on the analog video-recording copy-prevention market. The section contains a number of specific limitations and exemptions, for such things as government research and reverse engineering in specified situations. Although, section 1201(c) of the title stated that the section does not change the underlying substantive copyright infringement rights, remedies, or defenses, it did not make those defenses available in circumvention actions. The section does not include a fair use exemption from criminality nor a scienter requirement, so criminal liability could attached even unintended circumvention for legitimate purposes. The Unlocking Technology Act of 2013 was introduced to attempt to fix these oversights, which include prohibitions on unlocking one's own cell phone. However, no action was taken by Congress as of the end of 2013.

第一部分:WIPO版權條約及表演和錄影製品條約執行法案

DCMA的第一部分，WIPO版權條約及表演和錄影製品條約執行法案（WIPOTI）。該法案對美國版權法進行了修訂，以符合WIPO在1996年12月通過的"版權條約"和"表演和錄影製品條約"。條約含兩個內容，其一涵蓋了美國的副本複製預防法規中的幾個條約。關於該法案的這一部分以及進一步分析，請參閱世界知識產權組織版權及表演和錄影製品條約執行法案.

其二則是所謂的DMCA反規避法案。其規定作用於反拷貝系統（也叫"技術保護措施"）,並要求所有的模擬錄像機支持由Macrovision（現樂威公司）提供的內建防拷貝系統。這無疑使當時的Macrovision在此方面獲得了壟斷權。

第二部分，thanatos有提過的safe habour，中譯為『安全港』。

Title II: Online Copyright Infringement Liability Limitation Act

DMCA Title II, the Online Copyright Infringement Liability Limitation Act ("OCILLA"), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright infringement liability, provided they meet specific requirements. OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder's agent. OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing. OCILLA also facilitates issuing of subpoenas against OSPs to provide their users' identity.

第二部分:網路著作權侵權責任限定法

DMCA的第二部分,網路著作權侵權責任限定法（OCILLA）,為在線服務提供商(OSP,其中包括網際網路服務提供商(ISP))建立了一個「安全港」，對符合其特定要求的侵權行為進行打擊。OSP必須遵守其準則，並在收到著作權人或其代理人要求索賠的通知時及時阻止用戶訪問涉嫌侵權的材料（或將其從自己的伺服器中刪除）。OCILLA還便於法院向OSP簽發傳票，要求其提供其（侵權）用戶的身份。

第三部分:電腦維修競爭保障法案 / Title III: Computer Maintenance Competition Assurance Act

DMCA Title III modified section 117 of the copyright title so that those repairing computers could make certain temporary, limited copies while working on a computer. It reversed the precedent set in MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).

DMCA的第三部分修改了版權法第117條，使得修理電腦時，可以獲得暫時、有限的副本。 它在麥系統公司起訴山頂電腦公司（991 F.2d 511,1993年第九巡迴法院判決）一案中首次得以運用

第四部分:雜項條例 / Title IV: Miscellaneous Provisions

DMCA Title IV contains an assortment of provisions:
Clarified and added to the duties of the Copyright Office.
Added ephemeral copy for broadcasters provisions, including certain statutory licenses.
Added provisions to facilitate distance education.
Added provisions to assist libraries with keeping phonorecords of sound recordings.
Added provisions relating to collective bargaining and the transfer of movie rights.

DMCA的第四部分包含各式各樣的規定:
1. 明確並添加了版權局的職責.
2. 添加了一些針對廣播公司的臨時副本許可條例.
3. 新增條例以方便遠程教育.
4. 新增條例以幫助錄音庫的保存.
5. 新增了有關集體談判和轉讓電影版權的條例.

第五部分:原始設計保護法 / Title V: Vessel Hull Design Protection Act

DMCA Title V added sections 1301 through 1332 to add a sui generis protection for boat hull designs. Boat hull designs were not considered covered under copyright law because they are useful articles whose form cannot be cleanly separated from their function.

DMCA第五部分添加了第1301號至第1332號條例以保護獨一無二的原始設計。 (此前這些設計並沒有受著作權法保護).

反規避豁免條例 / Anti-circumvention exemptions

除了"安全港"和,豁免章程的明確規定外，17 U.S.C. 1201（a，1)規定國會圖書館對訪問規避的材料有豁免權，並用於非侵權用途。這些豁免規則每3年修訂一次（先前的將被作廢），首先在社會徵集意見，然後經過聽證會通過後確立。
現行的豁免條約在2010年7月被通過，詳細內容請參見美國版權局官方網站（英文版）。

In addition to the safe harbors and exemptions the statute explicitly provides, 17 U.S.C. 1201(a)(1) requires that the Librarian of Congress issue exemptions from the prohibition against circumvention of access-control technology. Exemptions are granted when it is shown that access-control technology has had a substantial adverse effect on the ability of people to make non-infringing uses of copyrighted works.

The exemption rules are revised every three years. Exemption proposals are submitted by the public to the Registrar of Copyrights, and after a process of hearings and public comments, the final rule is recommended by the Registrar and issued by the Librarian. Exemptions expire after three years and must be resubmitted for the next rulemaking cycle. Consequently, the exemptions issued in the prior rulemakings, in 2000, 2003 and 2006, and 2010 are no longer valid.

Previous exemptions (只有英文版本)

The Copyright Office approved two exemptions in 2000; four in 2003; six in 2006 and 2010.

2000, 2003, 2006 rulemakings
In 2000, the first rulemaking, the Office exempted (a) "Compilations consisting of lists of websites blocked by filtering software applications" (renewed in 2003 but not renewed in 2006); and (b) "Literary works, including computer programs and databases, protected by access control mechanisms that fail to permit access because of malfunction, damage, or obsoleteness." (revised and limited in 2003 and again in 2006). In 2003, the 2000 "literary works including computer programs" exemption was limited to "Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete" and this exemption was renewed in both 2006 and 2010. The 2003 exemption for text readers of ebooks was renewed in both 2006 and 2010. The 2003 exemption for obsolete software and video game formats was renewed in 2006 and in 2010. The 2000 filtering exemption was revised and renewed in 2003, but was not renewed in 2006. The 2006 exemption for sound recordings allowed after security flaws were found in a copy protection system on some Sony CDs was not renewed in 2010. An exemption covering the audiovisual works included in the educational library of a college or university’s film or media studies department was not renewed in 2010. This exemption was replaced with an exemption on DVDs protected by the Content Scrambling System when circumvention is for the purpose of criticism or comment using short sections, for educational, documentary or non-profit use. The 2006 exemption for wireless handsets connecting to wireless networks was revised in 2010 to specify used handsets and require authorization from the wireless network operator. Another exemption for wireless handsets was introduced in 2010 specific to interoperability software on the phone itself.

2010 rulemakings
The 2010 exemptions, issued in July 2010, are:
Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:
Educational uses by college and university professors and by college and university film and media studies students;
Documentary filmmaking;
Obsolete software and video game formats.
Noncommercial videos. (A new exemption in 2010, similar to a previous educational exemption.)
Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset. (A new exemption in 2010.)
Computer programs, in the form of firmware or software, that enable used wireless telephone handsets to connect to a wireless telecommunications network, when circumvention is initiated by the owner of the copy of the computer program solely in order to connect to a wireless telecommunications network and access to the network is authorized by the operator of the network. (Revised from a similar exemption approved in 2006.)
Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:
The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and
The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law. (A new exemption in 2010.)
Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace. (A renewed exemption from 2006, based on a similar exemption approved in 2003.)
Literary works distributed in e-book format when all existing e-book editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format. (A renewed exemption from 2006, based on a similar exemption approved in 2003.)

連結至侵權內容 / Linking to infringing content

The law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in some narrowly prescribed circumstances. One is when the owner of a website has already been issued an injunction against posting infringing material on their website and then links to the same material in an attempt to circumvent the injunction. Another area involves linking to software or devices which are designed to circumvent (digital rights management) devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material.

現行法律對於網站連結至侵權內容的行為是否侵權沒有做出明確規定，但是已有部分下級法院對這種情況做出了較為狹義的規定。一是在某網站收到強制令後仍然試圖連結該網站，二是故意連結受DRM保護的材料。在美國，尚未有違反以上規定的先例。

Notable court cases (從略，有興趣請自行在維基查閱，篇幅所限，以下只列舉案件名。)
1. Edelman v. N2H2
2. RealNetworks, Inc. v. DVD Copy Control Association, Inc.
3. Viacom Inc. v. YouTube, Google Inc.
4. IO Group, Inc. v. Veoh Networks, Inc.
5. Vernor v. Autodesk, Inc.
6. Lenz v. Universal Music Corp.
7. Flava Works Inc. v. Gunter
8. Ouellette v. Viacom International Inc.
9. Sony v. George Hotz

cretw

wiki說明... 真難看懂 應該先說明立法緣由與立法目的= ="

簡單的說就是美國用來保護版權的法規
如果論壇的主機不在美國的話，應該不用在意吧?

Laputa

回復 2# cretw

我看很多主機商很大部分是美國，所以只引用比較常用的法例。
歐盟的版權法現在應該沒統一的，每個歐盟成員國都不太一樣的，所以如果買歐洲地區的主機前請先去了解當地的版權法，以免出問題時連資料也救不回來。

立法緣由與立法目的，如果我說的話估計又會被人說亂扯的吧，所以沒特別去想，不過估計都是要從保護版權持有人的利益及使用版權的使用者之間取得平衡吧。

勇者王

多謝簡略介紹DMCA

不過話說回來,現在比較麻煩的就是"保護版權持有人的利益及使用版權的使用者之間取得平衡"
面對網路上大量流竄的無版權數位內容,不管是對於創作者還是使用者來說都是一大問題

以我來說我對於網路上想付費使用的軟體,對其購買的方式有時不甚感到便利
雖然目前可選擇方是很多元化(信用卡號碼,虛擬幣,轉帳等等)

但在購買軟體的便捷性與交易方式來說,還是免不了多幾道手續要做

Laputa

回復 4# 勇者王

其實在香港，最新的版權修訂條例 (2014)，有引入類似美國的DMCA制度(安全港制度)，估計對香港的webmaster來說應該不是壞事了。