“三振出局”规则是由RIAA发起的,旨在事前防堵、减少损害的网络版权管理措施,目前在少部分国家采用立法模式与约定模式加以确立。但立法模式有违作为现代法治社会基本原则的比例原则,其内部的规则设置亦不符合正当程序原则,并将打破著作权人与合理使用人之间的利益平衡。而约定模式虽不涉及是否符合比例原则之问题,但该模式下的“三振出局”规则赖以证成之重要理由—“低经济成本”存在质疑,并且因其权力出自私人契约,缺乏法律监控。因此,中国要谨慎引入“三振出局”规则。 “Strike out ” rule is initiated by the RIAA, aimed at pre-blocking, reduce damage online copyright management measures, is currently in a small number of countries to adopt the legislative model and contract mode to be established. However, the legislative model is contrary to the principle of proportionality as the basic principle of modern society under the rule of law. The internal rules are not in conformity with the principle of due process and will break the balance of interests between copyright owners and reasonable users. However, although the mode of agreement does not involve the issue of proportionality, the “strikeout” rule under this mode depends on the justification of “low economic cost”, and its power comes from the private contract Lack of legal monitoring. Therefore, China should carefully introduce the “strikeout” rule.