Today, we will introduce the second crime adopted in China to combat cheating programs in online games: criminal copyright infringement.
II. The state of criminal copyright infringement
After years of combating cheating programs using the crime of illegal operation, the judicial organs in some regions tried to use criminal copyright infringement from Article 217 of the Criminal Law to combat cheating programs. The subjective aspect of criminal copyright infringement requires the unlicensed copying and distribution of the copyrighted work of another for profit.
The reason that criminal copyright infringement has been used to combat cheating programs is that the cheating program’s developer and operator copy some of the online game software with the goal with the purpose of earning profit. Considering that the gains from cheating programs can easily total millions of RMB, fulfilling the minimum monetary requirement for a charge of criminal copyright infringement is not difficult.
The following is a representative case. The accused, Mr. Zhang, cooperated with others in developing and selling a cheating program for Maple Story, which is officially run by Shanda. Through these actions, Mr. Zhang made large profits but was ultimately arrested for his misconduct. After his arrest, the court sent the cheating program to Shanghai Oriental Computer Judicial Expertise Institute for examination. The institute affirmed that the program used a RAM hook to intrude into the Maple Story’s code and capture the RAM address. It then modified the control authority, and transferred or copied the data naming, data structuring, and run procedure of Maple Story’s 124 client software function data. Then, by means of modification over the data and parameters, it strengthened the functions in the program.
The court held that online gaming software receives protection under the Copyright Law. The accused, Mr. Zhang and the other defendants jointly copied and published Maple Story’s client program without a license from the copyright holder with the purpose of earning profit. Furthermore, the actions involved a substantial amount of money and the circumstances were particularly severe. Therefore, by Article 217 of the Criminal Law, these actions constituted criminal copyright infringement. In the end, Mr. Zhang was sentenced to five year imprisonment, and the other defendants were also sentenced to set terms of imprisonment.
But, the writer has an objection to using this crime to punish cheating programs. In order for the operation of a cheating program to be determined as a crime, it is necessary for there to be unlicensed copying of the computer software. The operator of the cheating program, however, does not need to copy the online game software. Even if the operator does copy, the copy would not be the game’s entire client software, but only a small number of procedures involved with data modification. In many cases, it copies the procedure within the the RAM and hard disc of the same computer, which fundamentally cannot be deemed as a copy, but rather data transfer. Cheating program transfer of online game client software is normally the original version legally downloaded by players from the game’s website, and this is obviously different than the legislative purpose of combating the unlicensed copying and dissemination of software. For this reason, operation of cheating programs does meet the objective conditions of the crime of unlicensed copying of computer software. Although the judgment in the case above was named in the annual list of ten Shanghai IPR protection cases, in practice, there are not many cases using criminal copyright infringement to combat cheating programs. All of the cases the writer has found prosecuting with this crime have been in Shanghai.