The evolution of the crime of cracking down on online game plug-in crime

Some netizens in Zhihu asked the author: Does it constitute a crime of illegal business operation to use game AIDS like keyboard and mouse to practice online games? "A few months ago, a friend was detained for 30 days for illegal business operations and fined hundreds of thousands because he used game scripts to practice games. His game script is similar to the color recognition of the key wizard+simulation of the mouse and keyboard, developed by himself, without modifying the game client, so it should not belong to the plug-in. But one of the crimes of illegal business operation is illegal publications. His software is for personal use and has not been disseminated. I wonder if it’s really illegal? Suppose the software he uses is copyrighted? Is the situation different again? The key wizard has copyright. What’s more, JC seized all his dozens of computers without showing any documents, and searched his room. Is this in line with the rules? If this kind of case goes to court, what are the chances of conviction? I have consulted many cases, and it seems that there are only cases with plug-ins. "

The author’s answer to this: There is no official explanation for the definition of plug-in in China at present. My understanding is the cheating software of online games. For the conviction of plug-in, it mainly depends on what kind of legal relationship plug-in infringes. If it is convicted of illegal business operation, the court thinks that online games can only be operated with a license, and plug-ins operate without a license. If the crime of destroying the computer information system is determined, the court thinks that the operation of plug-ins destroys the communication between the server and the client of the online game company, resulting in the unstable operation of the server. If the crime of copyright infringement is determined, it is that the court thinks that the program of the game software is copied by the plug-in (many times this copy is actually just a call, but sometimes the court judge may not know the difference. )

In this case, if the plug-in is just a mouse and keyboard wizard, the crime of destroying computer information system and the crime of infringing copyright cannot be applied to crack down, and the only thing the court can decide is the crime of illegal business operation. But I think that criminal punishment involves people’s right to life freedom and needs to be treated very seriously. Although the plug-in industry has done great harm to the online game industry, cracking down on plug-in crimes should also comply with the relevant provisions of the Criminal Law. If the plug-in has little damage to online games, it should not be cracked down according to crimes, that is, it does not constitute a crime. The following is a paper I recently published in China Intellectual Property Magazine, which specifically discusses the advantages and disadvantages of various charges of plug-in crimes in China.

Since Shanda Network Company introduced Legend from South Korea in 2001 and became a hit, the online game industry has gradually developed into one of the most profitable industries in the domestic Internet, and has created many richest people in China, such as Chen Tianqiao and Ding Lei. However, with the development of online games, various black industrial chains around the industry have also risen rapidly, among which plug-ins that help players cheat in games are the most headache for game companies.

As far as I know during my work in an online game company, the essence of plug-in is game cheating software, which is named because it is attached to game software at runtime. Plug-ins have the following disadvantages: cheaters’ bad money drives out good money, defeats fair gamers in the game and undermines the fairness of the game; Plug-ins increase the burden on the server, forcing operators to increase the purchase of servers and bandwidth, thus raising costs and may lead to unstable server operation; Plug-ins enable players to quickly complete the tasks in the game, abnormally increase the consumption speed of game content, and make game companies have to invest a lot of human resources to increase the development of new game content. Although it can’t be ruled out that some plug-ins are developed for the shortcomings of game software, most plug-ins do destroy the user experience of the game, increase the development and operation costs of the game company and endanger the stable operation of the game.

In China, plug-in has become an industry. For any slightly popular game, R&D teams will be responsible for developing the corresponding plug-in programs, and there will be special teams to operate and sell plug-ins. There are also professional "gold-playing" companies that specialize in "gold-playing" in the game, which use a large number of plug-in programs to earn game coins, experience values, etc. and sell them to other players. It is no exaggeration to say that the whole plug-in industry is a cancer parasitic on the online game industry, and their existence has seriously damaged the development of the online game industry.

However, how to crack down on plug-ins has always been a headache for major game companies. Plug-in operators make full use of the anonymity of the Internet, the limited jurisdiction of governments in the Internet environment, and the characteristics that online payment circumvents traditional payment channels. The operating domain name and server of plug-in software are usually foreign, and the accounts used for collecting money are usually personal accounts. Even if game companies can’t contact plug-in developers, they can only see the instant messaging accounts of plug-in operators and sellers.

In this case, if the game company conducts a civil lawsuit against the plug-in operator, it will first encounter the problem of unknown subject. In many cases, the name of the defendant is unknown; Secondly, even if we know the name of the plug-in operator or even the company that runs the plug-in, we don’t know anything about their property. The plug-in operator knows that plug-in is illegal, so the bank account used for operation will generally transfer the funds in the account to other personal accounts or relatives and friends accounts in a short period of time, so even if the civil lawsuit wins, it is difficult for the game company to execute its property. Third, civil prosecution can only attack the sales and operation links of plug-in industry, but not the development links. In the final analysis, the plug-in industry is a part of the underground economy, and it is not strong enough to crack down on it with civil litigation.

Since civil litigation is not feasible, many online game companies can only seek criminal means. However, the online game industry itself is a new industry, and the plug-in behavior that destroys it is unprecedented. Whether the plug-in behavior constitutes a crime or not, and what charges should be dealt with if it constitutes a crime, in practice, major game companies and legal practitioners have been groping for many years, and have gone through three stages: the crime of illegal business operation, the crime of copyright infringement and the crime of destroying computer information systems.

The first stage is the crime of illegal business operation.

The criminal object of the crime of illegal business operation is the market order, especially the market management system in which the state restricts the sale and purchase of goods and business licenses. The corresponding legal provision is Article 225 of the Criminal Law. As the operation of online games belongs to value-added telecommunications services according to the provisions of the Telecommunications Regulations, it is necessary to apply for the business license of value-added telecommunications services at the Ministry of Industry and Information Technology. The Interim Provisions on the Administration of Internet Publishing promulgated in 2001 and the Interim Provisions on the Administration of Internet Culture promulgated by the Ministry of Culture in 2003 also stipulate that the publication and operation of online games require the prior administrative license of the General Administration of Press and Publication or local press and publication bureaus and the Ministry of Culture. Therefore, online games are an area that needs a government license to operate, and some game companies try to report the behavior of developing and operating plug-ins as illegal operations.

The specific basis is Article 11 of the Supreme People’s Court’s Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases of Illegal Publications, which was promulgated in 1998: "In violation of state regulations, publishing, printing, copying and distributing other illegal publications that seriously endanger social order and disrupt market order other than those stipulated in Articles 1 to 10 of this Interpretation, if the circumstances are serious, they shall be convicted and punished for the crime of illegal business operation in accordance with Article 225, paragraph 3, of the Criminal Law."

The first domestic plug-in case: Tan, former vice president of Rising, illegally operated the plug-in case. Since June 2004, the defendant talked about a certain person and others developing 007 plug-in software for Legend 3. And set up a website to promote and provide download services, and also wholesale and retail plug-in software cards, with a business volume of more than two million yuan.

After trial, the court of first instance held that the defendant talked about a certain person who, for the purpose of making profits, carried out operating Internet information services without approval, violated the regulations of the state on publishing management, used Internet websites to carry out illegal Internet publishing activities, published and distributed illegal Internet publications, infringed on the legitimate rights and interests of copyright owners, publishing institutions and game consumers, and disrupted the normal order of Internet game publishing and operation, and the circumstances were particularly serious, which constituted the crime of illegal business operation. After the original public prosecution agency filed a protest, the court of second instance held that the actions of the three defendants had constituted the crime of illegal business operation, and the circumstances of the crime were particularly serious. They were sentenced to a fixed-term imprisonment of 6 years (two years and six months in the first instance) and fined 500,000 yuan.

After the verdict was made, major online game companies in China began to report plug-in crimes on the grounds of suspected illegal business. However, from the legal point of view, the crime of illegal business operation infringes on the national market management system that restricts the sale and purchase of goods and business licenses. If operating plug-in software constitutes a crime, it needs to be certified for illegal publications. In early cases, the General Administration of Press and Publication identified many plug-in programs as illegal publications, and every plug-in program identified by it was treated as a criminal case of illegal business operation. However, traditional illegal publications generally contain pornographic or reactionary content, while plug-in programs only help players cheat in online games, and basically do not contain pornographic or reactionary content. Moreover, the crime of illegal business operation is considered as "pocket crime" in practice. Therefore, there are also objections in theory and academic circles to cracking down on business plug-in with this crime. At the same time, after identifying a number of plug-ins as illegal publications, the General Administration of Press and Publication began to reduce the identification of illegal publications, so in recent years, there are few practices.

Second, the stage of copyright infringement crime.

After cracking down on plug-ins through the crime of illegal business operation for a period of time, judicial organs in some areas began to try to crack down on plug-ins by using the crime of copyright infringement stipulated in Article 217 of the Criminal Law. The subjective aspect of the crime of copyright infringement requires copying and distributing works that others enjoy copyright without permission for profit.

The reason for attacking plug-ins with the crime of copyright infringement is that the development and operators of plug-ins copy some programs in online game software for profit. Because the profit of plug-in is millions, it is not difficult to reach the bottom line of the crime amount punishment.

Case: Defendant Zhang et al. made and sold the plug-in software for Adventure Island game operated by Shanda Network, and the profit was huge, which was later captured. The court submitted the software to Shanghai Oriental Computer Judicial Appraisal Institute for identification, and confirmed that the plug-in invaded the online game client program of Adventure Island by means of memory hook, gained control over the memory address and data modification of the program, and called and copied the data naming and data copying of 124 client software function data of Adventure Island.

The court held that the copyright of online game software of Adventure Island should be protected by Chinese laws. Defendant Zhang and others jointly copied and distributed the online game software client program of Adventure Island for profit without the permission of the copyright owner, and the amount of illegal business was huge, and the circumstances were particularly serious, which constituted a crime of copyright infringement according to the provisions of Article 217 of the Criminal Law of People’s Republic of China (PRC). In the end, Zhang was sentenced to five years in prison, and the other defendants were also sentenced to fixed-term imprisonment.

However, the author has personal objection to punishing plug-ins for this crime: if the plug-in operator is to be deemed as a crime, it is obvious that there must be unauthorized copying of computer software. The plug-in production operators do not need to copy online game software in their operations. Even if it is to be copied, not all the game client software is copied by plug-ins, but only a few applications involving data modification; And in many cases, some programs in the software are copied between the memory and hard disk of the same computer. This behavior is essentially not copying, but calling. The online game client software called by the plug-in program is generally a legal version downloaded by the player from the official website of the game. Obviously, this is different from the original intention of the criminal law to crack down on copying-to crack down on the spread of unauthorized software. Therefore, the behavior of operating plug-ins does not meet the constitutive requirements of copying computer software without permission in the objective aspect of crime. Although the case was later included in the top ten typical cases of intellectual property protection in Shanghai in 2010, in practice, there are not many cases in which the crime of copyright infringement is used to crack down on plug-in crimes, and the cases retrieved by the author are basically applied by the courts in Shanghai.

Crime of destroying computer information system.

Although the previous charges against plug-ins are a bit problematic, with the strengthening of legislation, the online game industry finally found a suitable charge against plug-ins in 2011. Article 286 of China’s Criminal Law stipulates that anyone who, in violation of state regulations, deletes, modifies, adds or interferes with the functions of the computer information system, thus causing the computer information system to fail to operate normally, and the consequences are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the consequences are especially serious, they shall be sentenced to fixed-term imprisonment of not less than five years. Whoever, in violation of state regulations, deletes, modifies or adds data and applications stored, processed or transmitted in computer information systems, if the consequences are serious, shall be punished in accordance with the provisions of the preceding paragraph. However, because there are no applicable standards with serious consequences and particularly serious consequences, this provision is rarely used to crack down on plug-in crimes.

In September, 2011, the Supreme People’s Court and the Supreme People’s Procuratorate jointly promulgated and implemented the Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering the Security of Computer Information Systems, which has a clear quantitative index for the criminal consequences of destroying computer information systems, and greatly reduced the difficulty of cracking down on plug-in crimes.

Case: Su Mou and others modified the data of the online game server of Tianlong Babu through their own computer knowledge and software, implemented plug-in behavior, illegally swiped virtual currency and virtual items, and sold them online for profit. Their behavior caused a large number of abnormal accounts in the online game of Tianlong Babu to continue swiping gold coins in the game, which caused a serious impact on the virtual economic system in the game, causing the game network to be seriously blocked, and the players could not log in normally, so the operating company could only stop and maintain the server.

According to the trial of the People’s Court of Linghe District, Jinzhou City, the defendants Su Mou, Lin Mou, Zhou Mou, Li Mou, Pang Mou and others used plug-in software to modify the data of the online game server of Tianlong Babu, which caused the computer information system of Beijing Changyou Times Digital Technology Co., Ltd. to fail to operate normally, with serious consequences, clear criminal facts and reliable and sufficient evidence. In the first instance, the defendants Su Mou, Lin Mou, Zhou Mou, Li Mou and Pang Mou were sentenced to one year and one month in prison for the crime of destroying the computer information system, and the other defendants were sentenced to six months in prison, suspended for one year, and all the illegal gains and tools of the defendants were confiscated.

This case is different from the traditional case of developing and selling plug-in software. The traditional case of plug-in attacks the behavior of developing or selling plug-in, while this case attacks the gold-playing company that uses plug-in to "play gold" in the game and sell it to other players. There has been a great controversy in the industry about whether the use of plug-ins by gold-playing companies constitutes a crime. A typical case is that the Nanjing court ruled that the person in charge of a gold-playing company committed a crime with the crime of illegal business operation. However, there is obviously no national license restriction on the use of plug-ins to play gold in the game. Therefore, the case is very controversial. However, it is obviously more appropriate to use the crime of destroying computer information system to deal with the large-scale use of plug-ins to make money, because the large-scale use of plug-ins by plug-ins to make money may also lead to the criminal consequences that computer information systems cannot operate normally.

Finally, criminal punishment involves people’s right to life freedom and needs to be treated very seriously. Although the plug-in industry has done great harm to the online game industry, cracking down on plug-in crimes should also comply with the relevant provisions of the Criminal Law. From the point of view of the evolution of the charges against plug-in as a high-tech crime, although there are disputes at every stage in the whole process, it is indeed developing in a reasonable and perfect direction. Therefore, it can be seen that although there is a certain lag in the development of law, it will not lag behind for too long.

Author: You Yunting, partner of Shanghai Dabang Law Firm, intellectual property lawyer, tel: 8621-52134900, email: yytbest@gmail.com, this article only represents the author’s views. For more exciting intellectual property laws, please visit: www.legalservice.cn (Chinese) and www.chinaiplawyer.com (English).