Internet Virtual property protection of the plight of the Criminal Code

Analysis: Yan Xu Bing (Shanghai Jiaotong University School of Law) Site Date :2007-6-14 15:21:43 Editor's note: This article first appeared in the "Electronic Intellectual Property Rights" No. 6, 2007. The paper notes a little.

Abstract As the rapid growth of online gaming as an industry in its impetus to the economy at the same time can not be ignored, use of network games with rapid growth for the offenses. These violations undermine the interests of others or through the use of loopholes in the game to get huge sums of money. May be subject to penalties for such acts of the discussion has been continued. This paper from the reality of the existence of events and jurisprudence, discusses the application of criminal law in such acts on the difficulties encountered in order to cause theorists and practical importance, start a discussion.

According to 2007 survey data show that the first half of 2006, China's Internet gaming market reached 3.275 billion yuan. South Korea, a leading game company said: "China's game market potential is very large, two or three years, the Chinese mainland may be a ratio of China Taiwan, Japan and South Korea accumulation of the three markets, and also a big online game market." the face of such enormous "interest cake", a number of suspected illegal activity began to breed and spread rapidly.

One or two sentences from the first case

January 2007, Nanshan District, Shenzhen City Court case, the defendant and sell plug-in software by writing a few months more than 19 million profit, the court sentenced the culprits to illegal imprisonment 1 year and 6 months months. This is the first sentence of the use of illegal plug-profit case. March 2007, the Shanghai Pudong New District Court case, the defendant by modifying the "official uniform" data and the "PW" on the resulting data to the "official uniform" way to get some game equipment and weapons, and to dispose of them to other players, in less than a year's time more than 200 million profit, court related crimes punishable by imprisonment for 5 years principal. This is the first sentence of the sale of illegal equipment, the case for profit. Summing up the above two cases, we can conclude the following in common:

1. From the defendant's behavior point of view, both cases emerged a short time, the characteristics of a large profit. It is because of this feature makes the judicial practice from the perspective of social harm, consider the two cases be investigated for criminal responsibility in the possibility of the perpetrator.

2. From the prosecution point of view, both cases were prosecuted by the Procuratorate, and sentence the defendant of criminal responsibility cases. Procuratorate are two cases to prosecute the crime of copyright infringement, but in the end the court of first instance to copyright crimes are non-judgment, the former set of First Instance on charges of "illegal business"; which set the first trial on charges of "related crimes."

3. From the Court's point of view, the gaps in legislation to the court in the conviction, sentencing brought great difficulty. Identified in the evidence, the defendant operator of illegal profits and losses of the game are not clear standards for the calculation in accordance with. If the defendant's illegal profits in some circumstances, principal and an accomplice through contacts between the amount of funds to found, then lost the game operators are indeed become invisible, intangible things. The loss of the game operator and the defendant obviously can not directly equate the amount of illegal profits, because the amount of the defendant's profit also includes the purchase of plug-and accused of "illegal virtual objects" losses suffered by players.

Second, the network game for the plight of the Criminal Code

In both cases, the destruction of computer information system, crime, the crime of copyright infringement, illegal business, related crimes charges in the case of criminal detention, approved the arrest, first-instance ruling involved in various stages. However, the different online games for suspected illegal how should the provisions applicable to criminal conviction and sentencing, it is still a problem before the people. This difficulty is reflected in both regulate what counts will have "not fit for it."

1. Destruction of Computer Information System
As the online games run on computer information systems, thus games around the network for the illegal acts, people first think of the applicable criminal law provisions is Article 286 of the crime of destruction of computer information systems requirements. However, careful analysis that will find that this provision of the Criminal Code does not apply to the behavior of the two cases. From the provisions of the Criminal Law of view, undermine the Computer Information System, including violation of state regulations of the three acts: (1) of the computer information system function to delete, modify, add, interference, resulting in computer information systems can not function properly, the consequences are serious ; (2) of the computer information system, storage, processing or transmission of data and applications to delete, modify, increase the consequences are serious; (3) intentionally spreading computer viruses and other destructive processes, affecting the normal computer system run, the consequences are serious. The two cases can not apply to charges, partly because the behavior of the two cases is "not caused by normal operation of the computer information system", "normal operation of the computer system" is difficult to identify; the other hand, because of the "serious consequences" There is no judicial interpretation give a clear definition.
Obviously, this case Although this should be two charges were criminal detention, but did not prosecute this offense is the reason.

2. Criminal Infringement
In accordance with the provisions of Article 217 of the Penal Code, constitutes an infringement of copyright crimes, must meet two conditions: First, without the permission of the copyright; secondly, to reproduce and distribute the works of others. December 22, 2004 from the implementation of the "Supreme People's Court, Supreme People's Procuratorate of Intellectual Property Criminal Cases Application of Law explained," sent the "communication to the public through information network" as "to reproduce and distribute."
The author believes that the two cases are difficult to apply to the defendant's conduct to regulate the crime of copyright infringement. First, the preparation and dissemination of external behavior is not to reproduce and distribute "the works of others." (1) the communication is not the works of others. Although the need to rely on plug-in network games to run, but it does not mean the game itself, the client program. Therefore, the behavior of people, it is not transmitted via the Internet, "other works", but rather "their work." (2) whether the practice is difficult to identify external constitute the replication of network games. Plug-in program size, appearance features, functions and networks, both games are essentially different, it can not determine from the external features of the existence of infringing copies. This plug-in application and network must be to compare games, identification. According to the present situation, online game operators generally are agents of foreign online games software copyright owner's works, they can not provide the source code, and then plug makers to produce plug-in software will not take the initiative to the source code. This can only decompile the two procedures, which in the current technical conditions, the need for a long time and costs, in the practical work is not feasible. So the plug constitutes a copy of the network game program, in practice often difficult to identify.
Second, modify the game data, the behavior of virtual equipment do not meet the Essential Elements of the crime of copyright infringement. (1) Because the data is not a computer game equipment, software, copy, modify game data equipment does not constitute a copy works of others. (2) word, and then the lack of originality, often difficult to be copyright protected, and game equipment, the data corresponding to the code itself is very short and does not constitute copyright law called "work." Thus, to modify the game equipment, data can not constitute the crime of copyright infringement. Therefore, although the Procuratorate to "copyright infringement crimes" prosecution, but none of these two cases the final decision to be convicted of copyright infringement.

3. Crime of Illegal
December 23, 1998 shall come into force of the "Supreme People's Court on Criminal Cases of Illegal Publications hearing a number of issues of interpretation of application of the law" in Article 11: "violation of state regulations, publishing, printing, copying and distribution of this interpretation of Article to the provisions of Article X other than the serious harm the social order and disrupting the market order and illegal publications, in serious cases, deemed to have committed 25 in accordance with paragraph (c) of this paragraph, in order to illegally convicted and punished. "previously mentioned in Shenzhen Nanshan district court hearing the case in the first instance decision, the defendant prepared to disseminate the plug-in software as "illegal publications", thus "illegal business" to the defendant's conduct conviction based primarily on the judicial interpretation will "Publication, copying, printing, distribution of illegal publications," the acts into the Criminal Code Article 225 of the "other seriously disturbed the order of the illegal market behavior" in order to "illegal business" to regulate it. But this found still open to question.
First, the plug-in software is in "illegal publications" is still controversial. July 1, 2004 from the implementation of the "publication of market rules" (The People's Republic of China General Administration of Press and Publication No. 20 Order) Article: "The term of this publication refers to newspapers, periodicals, books, electronic publications, etc. . "The plug-in software does not belong naturally newspapers, periodicals and books, it could only be incorporated into the electronic publications. In accordance with the "State Administration of Taxation on the specific scope of taxation of electronic publication of the notice is the software" (Guo Shui Han [2000] 168) states that "the so-called electronic publication refers to the application software and the digital code means for processing graphics sound as such information is stored in magnetic, optical, electrical storage media, through the computer or reading devices with similar functions to use the mass media.'s identification code for the electronic publication ISBN, its media form for the floppy disk (FD), read-only compact disc (CD-ROM), interactive CD-ROM (CD-I), Photo CD (photo-CD), high-density CD-ROM (DVDROM), integrated circuit card (IC-card). "This provision of electronic publications media shape the way using exhaustive list, but plug-in software is not stored in any form in the media.
Second, the judicial interpretation of the provisions of Article 11, for the identification of such acts on the given attribute is very strict restrictions, including the "serious harm to social order and disrupting the market order" and "the circumstances are serious." Although the explanation for the "serious cases" and "particularly serious" in detail the provisions, however, did not explain the "serious harm to social order and disrupting the market order" How to form. Some scholars believe that Article 225 of the Penal Code last of a "seriously disturbed the market order of other illegal acts," although "to intercept the perpetrators have to plug leakages French features, but judicial use of existing risk of abuse", so its application The line should be strictly according to law. Therefore, the preparation, dissemination of the behavior of the software can plug into this section may be illegal business still doctrinal obstacles. Mentioned before, Pudong, Shanghai courts of first instance in cases of game equipment, data and code even can not constitute "illegal publications", and therefore not the case in the defendant's conduct constitutes a crime of illegal business.

4. Misappropriation
Nanshan District, Shenzhen court case between the defendant and the operator of the game there is no employment relationship, it can not constitute a related crimes. Pudong New Area, Shanghai, court cases, the defendant's conduct is mainly divided into two parts: (1) the use of its online game operator in any game project management operation and maintenance center vice president of his position, by directly modifying the official uniform on data, to increase their accomplices in the official uniform on game characters built under the equipment; (2) the use of the above position to the PW on the generated data packets sent to the official uniform to the game characters who add or modify the game weapons or equipment. Shows that the behavior of the defendant used the staff of this facility operators, it may constitute a criminal law article 271 related crimes. However, the court ultimately related crimes were convicted, but is open to question.
Formed from elements of the object Misappropriation of view, the defendant sold the game equipment is not the Criminal Code referred to in Article 271 "unit of property."
One such game is not equipped with game operators of all property. From the Shanghai Pudong New Area ????? findings of fact view of the defendant to profit by selling the game equipment is not in the official uniform of the game through normal channels, input from the players point card and point card to buy the game time, through the process of leveling and ?? such access, but by directly modifying the official uniform of the data or by the PW on the first generation and then sent to the official uniform way to modify the data obtained. The game equipment does not constitute a "civil law" referred to citizens or legal persons on legitimate income. Game operator to the other players that the weapons are "illegal election", which indicates that the game operator can distinguish the normal way to produce the game's weapons and equipment with the defendant in this case generated by modifying the weapons and equipment, also shows that the defendant the sale of weapons and equipment with operators on the official uniform of the game through the normal channels of weapons and equipment produced by essentially different. Since the equipment does not produce the normal way, which is not recognized by operators, virtual objects, so operators can not be recognized for their own virtual objects on the right of property ownership. Related crimes are violations of the object should be to companies, enterprises or other units of property ownership, which should be the company occupied property. In this case the defendant sold to benefit the game equipment is not the legal property of the game operator.
Second, operators of such games while equipment is not yet occupied, but belongs to all of their disposable claims. The case pronounced its verdict in accordance with the facts, not the players by the game and equipment operators EULAs (End User Agreement) provides rules of the game in production, the end user agreement does not focus on the regulatory system of the present case, the virtual equipment, rights and obligations arising from the relationship between so the equipment does not belong to the game operators can enjoy the claims under the contract.
Third, such a game is not game weapons and equipment operators in accordance with the law and the interim management contract agreement, use or transport of other people's property. Virtual objects on the network whether the game should be classified as property rights in the property, or intellectual property rights claims, scholars have different views. But in this case, even from a theoretical point of discussion, whether such games will be classified as weapons and equipment Property, claims, or classified as intellectual property rights related crimes can not be established. If we game weapons and equipment classified as property areas, then As mentioned earlier, operators can not enjoy the game of arms and equipment ownership (property rights). If we game weapons and equipment, intellectual property rights included in the scope of the criminal law because the "Intellectual Property Crime" section on the infringement of intellectual property has special provisions and related crimes in the Elements of the "object side" and does not include units of intellectual property rights, it no longer applies to section 271 of the Penal Code which constitute the so-called related crimes. Forensic findings highlighted the case of weapons and equipment for the game the importance of players seem to prefer the virtual objects classified claims, at this time, the game is the weapons and equipment can be enjoyed by players require carriers to provide the virtual objects on the content recorded special services claims. Therefore, the game player weapons and equipment can only be enjoyed by debt obligations, but is determined by the operator according to the law or by contract management and use. Discussed above in accordance with the normal game only way to generate virtual objects in terms of network games. However, the case involved such weapons and equipment is not properly constituted, and therefore can not be the players have set up the claims of legitimate property rights of players. Therefore, these games are not weapons and equipment operators in accordance with the law and the interim management contract agreement, use or transport of other people's property.
If the defendant selling games and equipment modification and not a "company property", then "related crimes," the conviction can not be established. In short, the offense with the online game-related behavior in the specification, the application of the law are present predicament. Such difficulties arise, for many reasons, but I think the most important reasons: (1) the virtual object, plug, PW basic concepts such as online games no official explanation, the law of property is in dispute China; (2) around the virtual object, plug, PW and other suspected illegal activity produced no clear legal provisions on criminal law make guidelines to use traditional criminal law to regulate this new offense behavior, the legal application of naturally occurring difficulties.

Third, comments and suggestions
The above two cases, a reflection of the criminal law in regulating online gaming in virtual property-related fatigue when the alleged offenses. The different behavior to the existing provisions to be applied mechanically can only lead to the deterioration of this predicament. Apart from the legislative gaps aside, from an academic perspective, the network game is the virtual objects can be incorporated into the scope of property rights protection by the current laws around the virtual object to start the "improper" acts can constitute a civil infringement, are still In the discussion of the issue, as the most stringent security measures in criminal law, to intervene in this gap in the field, we must insist.

1. Principle of legality should not be abandoned
On the one hand, no specific law is not a crime. If an act can not be included in any of the existing criminal law to the offense, the conviction should not be made. On the other hand, constitute the elements for intercepting the interpretation and application should be limited to a narrow range, to avoid expanding explanation in case of abuse.

2. "Social harm" standard should not be recognized by one-sided
Beccaria wrote that "the real ruler to measure crime, that crime, the harm to society." Obviously, criminal law, the most severe punishment of criminal behavior for whether the law should be designed to intervene in a particular field, should be present in the field of behavior harmful to society as a measure of size. This is also harmful to society as the basic characteristics of the crime decision. The simple interest to a particular type of behavior measured by the amount obtained in this behavior harmful to society is clearly one-sided.

3. The field of criminal penalties should be Shenru Games
Overall, at this stage on the Internet Virtual objects in depth issues related to a lack of understanding of the situation, ignoring the complexity of the online gaming industry with the particularity of the modest and restrained against the criminal law, without distinction, to expand adjust the scope and application of criminal law penalties are excessive and unreasonable. Criminal Law on the Protection of network game virtual objects should be controlled in an appropriate context, criminal penalties should be Shenru gaming.

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