民事法律行为可以采取书面形式、口头形式或者其他形式。法律规定是特定形式的，应当依照法律规定。——《
民法通则》第
五十六条. http://www.people.com.cn/item/flfgk/cyflfg/c006.html; “一方当事人向对方当事人提出民事权利的要求，对方未用语言或者文字明确表示意见，但其行为表明已接受的，可以认定为默示。不作为的默示是在法律有规定或者当事人双方有确定的情况下，才可以视为意思表示。”《最高人民法院关于贯彻执行
民法通则若干问题的意见》第
66条. http://www.court.gov.cn/lawdata/explain/civil/200304010167.htm.
经笔者使用“implied license”一词检索Lexis法律数据库中“联邦和州联合判例库”(Federal & State Cases, Combined), 有关判例多达数百个。
“A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner''s duly authorized agent.” 17 U.S.C. § 204 (a) (1976) . (2006-01-02). http://uscode.house.gov/download/pls/17C2.txt.
A "transfer of copyright ownership" is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license. 17 U.S.C. § 101 (1976). (2006-01-02). http://uscode.house.gov/download/pls/17C1.txt.
The New York Times. . . http://www.NYTimes.com/.
The New York Times. Frequently Asked Questions About Rights and Permissions. . http://www.nytimes.com/membercenter/faq/rightspermissions.html#rightsperqa1.
Consent to use the copyrighted work need not be manifested verbally and may be inferred based on silence where the copyright holder knows of the use and encourages it. —同注.
(b) Limitations on liability relating to material online: System Caching. 17 U.S.C. § 512. (2006-01-02). http://uscode.house.gov/download/pls/17C5.txt.
(c) Information Residing on Systems or Networks At Direction of Users. 17 U.S.C. § 512. (2006-01-02). http://uscode.house.gov/download/pls/17C5.txt.
“a repository of material that operate between the individual posting the information, and the end-user requesting it.” —同注, at 1124.
Ellison v. Robertson, 357 F.3d 1072, 1081 (9th Cir. 2004).
In this context, ‘intermediate and transient’ refers to such a copy made and/or stored in the course of a transmission, not a copy made or stored at the points where the transmission is initiated or received. - Section 202. Limitations on liability for Internet copyright infringement. H.R. Rep. No. 105-551, pt. 2.. http://thomas.loc.gov/cgi-bin/cpquery/T?&report=hr551p2&dbname=105&.
New Section 512(b) applies to a different form of intermediate and temporary storage than is addressed in subsection (a). In terminology describing current technology, this storage is a form of `caching,'' which is used on some networks to increase network performance and to reduce network congestion generally, as well as to reduce congestion and delays to popular sites. —同上注.
This storage is intermediate in the sense that the service provider serves as an intermediary between the originating site and the ultimate user……. the material must be made available on an originating site, transmitted at the direction of another person through the system or network operated by or for the service provider to a different person, and stored through an automatic technical process so that users of the system or network who subsequently request access to the material from the originating site may obtain access to the material from the system or network. —同注.
Digital Millennium Copyright Act (DMCA) was enacted both to preserve copyright enforcement on Internet and to provide immunity to service providers from copyright infringement liability for passive, automatic actions in which service provider''s system engages through technological process initiated by another without knowledge of service provider. H.R. Conf. Rep. No. 105-796 (1998).
