From the "Westward Journey" NetEase reported case of players on legal issues online games

Study: Lung Yu Zhi (Guangdong Jinglun law firm) Site Date :2005-11-25 10:38:49

"Westward Journey" NetEase reported the case of players Description: Chen Moumou, Chen, Li Moumou Netease pass number three respectively in the "Westward Journey online ?" online game server Po as the country registered a game player character, then on Players role devoted a great deal of time, money and effort, and received a number of games and equipment and other valuable online games virtual property. March 2005, the game player character suddenly isolated in Guangzhou NetEase Interactive Entertainment Limited to close the scene "contest field", causing Chen Moumou and the others can not continue to get the game and use the virtual game equipment. After negotiations, parties are told to "use the plug-in" as an excuse was "permanent isolation." Chen Moumou other three refused to accept, in May 2005 to the Guangzhou Tianhe District People's Court proceedings, asked the court to Guangzhou NetEase Interactive Entertainment Limited Game characters will be lifted, and owned by all of the virtual role the role of property and equipment returned to normal before lifting the ban. Hereinafter referred to as "the player told NetEase case."

As concern about legal issues related to online games of professional lawyers, from the "Westward Journey" The three players sued NetEase case, the legal issues of concern to gamers, to talk about the personal views for you to think.

First, claim rights, how to prove the true identity of the player?

Some people think: only when registered with registered account name and ID number to confirm, or even a password, or line.

I think: If the player account in the register when the registration of real names and identity card number, of course, can be used to confirm. But the player did not register real names and identity card number of the case, because my real name system not yet implemented the network, network-based game of virtual sex and the characteristics of a password login, simply by enter the password authentication, but no third party claim there is no right or operator to be conclusive evidence to the contrary, they can confirm the identity of the main players.

Second, what is the plug? Plug should be prohibited to use it?

In the network game, the illegal external mainly refers to an analog keyboard and mouse movement procedures, it would disrupt Youxi technical protection measures, changes to the client data in memory.

Generally believed that, plug the game because of copyright violations, undermine the rules of the game of fair competition and therefore should be prohibited. State Press and Publication Administration, Ministry of Information Industry, State Administration for Industry, National Copyright Administration, the National "anti-vice," "fighting" the Working Group Office, "on the launch of the" PW "," plug-in "special notice" to the recognized as illegal.

In the game, for some allowed for operators, players can use the support tool, this time we do not think that it is illegal plug-in.

Third, that the use of plug-in who is responsible?

This simple, but very easy to confuse people.

Some people say: It should be the player that they did not use plug-in. Some people say: It should be operators that use the plug-in player.

For example easier to understand. For example, I say you owe me a penny, then who should prove it? I prove what you owe me a penny, or do you prove you do not owe me a penny? You might say: "According to the principle of burden of proof who advocate who, of course, to prove you ah, I do not owe you money, how can I prove?" You understand right. Similarly, if the operators that use the plug-in player be title, because it is the operators claim the player when using plug-in, then the operator is obliged to adduce evidence to prove the player to use a plug-in.

Some may say: "You as a player, you prosecute operators, say that you do not use plug-in, according to who is who advocated the principle of burden of proof, of course, you stand, so you have to prove you do not use plug-ah." Is that true? Not.

As another example of just a penny. I say you owe me a penny, and then you put a cup of my house siphon cup arrived to say that money. Of course you do not accept: "I do not owe you money, so how can buckle my cup?" So sue me to court, stand to go to your cups. At this time, is not it up to you to prove that you do not owe me money? Of course not, why? Because I favor you owe me the money first, and then I take your cup, I of course obliged to prove that you owe me money, I get to prove the legality of your cup. If I can not prove I owe you money, of course I can not take your cup, I would have the cup back to you. Similarly, in online games, players prosecute operators, he does not prove that he did not use plug-in, but titles can only prove that he was. Why? Because operators prior to the player title, then it should be evidence to prove that it is based on the title. If the carrier can not prove that it has title basis, it should be worried adverse consequences, such as the number should be returned to players.

From the perspective of the evidence in the proceedings, according to "Civil Law" Article 64 stipulates that "the parties put forward their ideas, have the responsibility to provide evidence." Operators should use the external player to provide sufficient evidence. Such evidence should be sufficient and effective. NetEase reported case on the players, the players that use NetEase provides plug and print it as a set of data, from the evidence forms and nature of view, are "statements of the parties," statements of the parties, including oral statements and written statement, print out the material here is just a written statement Netease. NetEase is a written statement of the data can be any make, change, deletion, this written statement does not have the authority, authenticity and credibility. According to "Supreme People's Court on the Civil Evidence provides that" the 76th article, "the party of their claims, only statement I can not make other relevant evidence, not to support its claims. But the other party except as authorized. "Meanwhile, according to the judicial interpretation of the second" no evidence or insufficient evidence to prove the fact that the parties advocated by the parties bear the burden of proof to bear the adverse consequences "of regulations, the burden of proof should be clear that NetEase adverse legal consequences.

In general, operators that use the plug-in player, the player receives is based on feedback from its servers after the determination of abnormal data. Operators to support their views of the right techniques of proof should apply to the court the original data stored on its servers were identified, and the court should be to confirm that no tampering with the original data is real and can fully reflect the use of external circumstances, can make a player determined using the plug-in.

4, transfer the burden of proof is how is it?

Shift the burden of proof, is on the same facts of the case, one of the parties to provide the burden of proof, the other party under certain conditions in the burden of responsibility to provide evidence to the contrary. The results of this permit, must judge in the case of evidence form a strong, confident that the evidence to be significantly larger than the fact that the possibility exists the possibility does not exist, before they found the existence of that fact. The results counter the judge in the case just to deal with the fact that evidence has shaken the formation of evidence can be.

Or give examples of just a penny. I say you owe me a penny, and then I went to court, wants you to pay back the money. "The card" is I want to prove you owe me money, "disprove," is that you prove you do not owe me money. First of all, who advocates who burden of proof, you just say you do not owe on the line, you do not have to prove that you do not owe me money; this time, it is my duty to prove you owe me money. Then I proof Rights: I print a piece of paper or write your own piece of paper that read: so and so (that you) owe me a penny, sign my name, and then to the court. This time, I said that my evidence (the "Certificate") is complete. This time, it should not shift the burden of proof - that is to do to you "disprove" that you do not owe me money? Obviously not. Why? Because my proof is invalid, this is what I write does not make the judge believe that you owe me money.

Circumstances under which the transfer took place the burden of proof, that is your obligation to "disprove" mean? Only when the evidence I have sufficient enough to judge the hearts of the formation of strong evidence that the money you owe me the possibility of significantly greater than the possibility of not only need your "disproof." For example, I told the court issued an IOU, IOU is your signature, written owe me a cent, enough to make the judge think you owe me money. But you deny that you owe me a penny, then you will need to "disprove" - the burden of proof shifted to you, you have an obligation to adduce evidence to prove you do not owe me money: such as the police confirm that the person in Session When you write IOUs that are subject to violence, stress, alcohol, etc. scrawl.

NetEase reported case on the player, the player uses the plug NetEase that its unilateral offer to provide a set of data out, then, should not shift the burden of proof should occur is proved by the players do not use plug-in? I think: should not be. Because, as mentioned earlier, the data is only equivalent to "statements of the parties," where the player denied, the player does not allow us to believe the possibility of using the plug-in player does not significantly greater than the possibility of using the plug-in.

The above description, I hope you understand that for the case of the player sued NetEase and transfer the burden of proof there is help.

5, who have the right to determine the use of plug-ins? Operators? How it reasonable? Can not by a qualified third party to monitor?

Operators that: the agreed rules of the game is operating, when the player registered account, the terms explicitly agreed the operator shall have the right plug-in such acts as the game judge and punish cheating. Meanwhile, from the industry practice of view, operators also serve as the role of maintaining order in the game and punish cheating players, to maintain fairness and order, it is justified. We are so dry ah.

There is reasonable? No legal norms, not rule-bound, there is no legal supervision, will inevitably lead to abuse of power. Operators to provide services to a party game, at the same time as the judge rules, it is dangerous. In commercial operation, both player and referee's role is destined can not guarantee its authority, objectivity and impartiality. Only with operators in the integrity and the conscience of the capitalists, is not enough, Guan Sheng Yuan, "Chen Xian Incident", Sudan incident, Nestle milk powder incident, has sounded the alarm.

There are no expected results, we are playing the game is "dangerous game." When you do not know the day would suddenly titles, do not know what day will suddenly be deleted one account, but do not know the game will end one day when suddenly, when you pay a lot of time, money and energy into the game to , and in the morning wake up, you happen to find titles you are being deleted number, the game has been terminated, when I do not know at this moment of you, will be how to feel?

In fact, we should note that the player account in the register, the operator set the terms of service is to repeatedly apply the pre-established, and are legally prescribed form or format of the contract terms, it was said to be "King terms" are effective should be required by law or legal theory to define.

Well, there may be by an impartial third party to monitor? Associations such as online games, online games to determine the Society. How much will it cost? These problems are worth to explore.

6, the player's service contract with the operator how to define? To the provisions of the Code, the penalty formulation, modification should be how to be effective?

In online games, players and operators constitute a service contract relationship. Service operators to offer games, players such as through the payment of the price to buy prepaid card, point card and the time, energy operators into enjoying the game service. In general, operators will develop the format of service provision, a player registered account, only click "agree" or "accept" the terms of the service, before entering the game, when players click agree or accept the moment, the player will and set up a service contract operator.

This service agreement effective? Generally believed that, subject to case law can be confirmed as valid.

Revision and change the terms, according to the provisions of contract law, shall be by consensus by the parties. Any unilateral actions to change the contract terms do not have the legal force and effect. Therefore, the smart operators will register the player in the state in terms of service when necessary, may unilaterally amend the terms and rules of the game, players register "consent" obtained as a player on the authorization. Based on the principle of fairness, some operators will specify the revised terms of service procedures, such as players will be notified by email or players enter the game in terms of prompt service has been changed, the original service agreement or to notify the players agreed .

Neither player scored in terms of service authorization, and no legal or agreed to notify the players, and will unilaterally enact, amend the terms, rules of the game on its home page, such as the "notice", "Statement," " Declaration, "" news "like the announcement, then the terms of the modifications or changes are invalid and not binding on the players. Because the player has no statutory obligation to pay attention to operators of any content on the home page.

NetEase reported case on the players, the players and Netease form "Westward Journey online ?" gaming service relations, the two sides of the "plug" issue does not provide expressly agreed. And, in NetEase provides "NetEase Pass Terms of Service", also defined the terms of service changes, "the company will enter the next step in the user prompt changes before using the contents of the page." However, on the "external" to define and modify the provisions of, the NetEase does not use the user into the next page for tips before, but only on its Web site "News Center" made the "instructions" and "Declaration." I think: As there is no statutory obligation to the player or the obligations stipulated in the agreement to pay attention to NetEase "News Center" for any news, so it unilaterally to the form of "external" problem on their own to develop new rules or regulations did not have the legal acts force and effect.

7, carriers of the players what is the punishment? What procedures should be adopted? Have no obligation to inform the players have defended the right players?

Where there is sufficient and legal evidence that the players had breached the Code, in accordance with the Code or both of the service agreement contract, penalties or the termination of the player Jinxing provide some or all of the game service, should be permitted.

The problem is that the degree of punishment, procedures and rules. Said plug-in bar. What is a plug-in? Is not all use the plug behavior, have title or delete account? What is the concept of title? Temporary separation, or permanent separation? How long is a temporary separation? One day, month, or year?

Isolation or title, players and equipment owned by the role of virtual items such as how to do? I've been honest, but a sudden whim to use plug-in today, was title, but I have a lot of equipment and other virtual items that I spent two years time, a few million rechargeable card, only get hard, but Today, the use of plug-in for one soon vanish, reasonable?

Smart operators in the Federation or rules in the Code, the extent of the punishment and the procedures the Department on specific provisions, and what how to handle, measuring how the consequences of what punishment, so that players have a clear expectations, and not die Fuzzy paste or evasive.

In front of the players made the punishment be a warning, or notice intended to punish the player shows a measure, allowing the player to defend, will greatly increase the player's confidence.

NetEase reported on the player case, the use of plug-in "punishment" on the NetEase provides both the "GM Code" or "Players Code", not "permanent separation" of words, which in the "GM Code" , GM's work permission only "temporary separation" is subject to certain time limits. However, the use of the NetEase has to plug the player will be the role of the grounds of "permanent separation" to the contest site. Should say "name is not correct words ring true."

8, the virtual objects should not be protected? How to protect? In what way (property protection, intellectual property protection or creditor protection) would be more reasonable?

Players in the game has a virtual gold currency, virtual equipment (weapons, armor, pharmacy, etc.), virtual plants and animals (pets, bonsai, etc.); virtual characters (virtual human, ID account level), we referred to as "virtual goods" It was also known as "virtual property."

Virtual property should be protected, can be said to be a consensus of the industry. However, this reminds me of one thing, the author of last year the National Bar Association Information Network and the Professional Committee of the annual high-tech when we were discussing the protection of virtual items, a sit comrade said: "The social reality of life Too many legal issues to be resolved, you are in the discussion of these experts, the network illusory virtual property, virtual goods to protect those who need it? "I do not know people who hold this view the number.

From around the world to see, many countries have attached great importance to virtual goods legislation. Such as the United States, "Electronic Theft Act prohibits" the network game players account include the scope of protection; South Korea are clear legislative and judicial recognition of the network a "virtual property" value, the provisions of the virtual characters in online games and virtual goods is independent of service, and with property values; in China Taiwan, Hong Kong's laws recognize the "network property" value and to criminal law protection, and has a number of cases of violations of "network property" of a criminal sentence case for reference.

Some people think that the need to protect virtual goods, the ownership of these virtual items should belong to all operators. Because virtual objects are created out of carriers and platforms attached to the game, since the game is all operators, then the operator can only possession, use, dispose of virtual goods. I believe that, as gamers, would not agree with this view. Because, in a game platform, the fact that only the player can use these virtual items can be loaned to other players, gift other players, but also in real life for these virtual goods transactions to be made real money earning. Then, the virtual objects should belong to the player.

In judicial practice, the virtual property protected by law there are precedents. Although China has no case law, but precedent can be used as our reference. In 2003, the country's first "virtual property" stolen (Lihong Chen v. "Luna" case), the Lihong Chen for its virtual equipment stolen by another player, after negotiations invalid grounds of infringement of private property operators Arctic ice Technology Development Co., Ltd. sued the court, Beijing Chaoyang District Court ruling that: "On the value of lost equipment, although the virtual equipment is intangible, and existing in a special network environment, but does not affect the virtual goods as a kind of intangible property access to appropriate assessment and legal relief. " As service providers that service users can not lose the reasons for online games and equipment lost, and there is no evidence that service users have the password for the case of other persons known outside the witness, so service providers identified deficiencies in the safety and security, deal with service users online games and equipment to protect the loss of negative responsibility to bear that have been verified by the network equipment, technical operations for the game retreated. Therefore, defendant was ordered to the Arctic ice company to restore the plaintiff in the verdict within seven days of lost weapons. The case of appeal, the Beijing Second Intermediate People's Court upheld the first instance court. Generally believed, the judiciary has been recognized in this network has the property characteristics of virtual property.

Virtual goods have some of the characteristics of property rights, to a certain extent, a degree of independence, not necessarily attached to the role of a particular game player exists. If you recognize this, then the role players in the game such as isolated state, the normal share of their virtual items, use, disposition will be as fat power, trade, gift or disposal should not be restricted, operators have an obligation to ensure the game player character virtual objects owned by the possession, use and disposal remain normal conditions before isolation. For example, even if there is sufficient basis for the role of the player to isolate or title case, is not it allows the player to have some free time role, so that it could dispose of their virtual items and then go back to isolate the environment?

Protection of virtual items should be property rights protection, intellectual property protection, or the creditor protection? The problem is rather complicated, involving the rights of players and operators obligations. However, a more consistent view is that: with a certain independence of virtual goods, virtual goods is a term of protection, while the termination of a game of virtual goods was also gone.

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