The Development of China Court’s Judgment over Criminal Offence of Online Game Cheating Programs, I

(By You Yunting) Since Shanda imported the massively popular online game, MIR, from South Korea in 2001, the online game industry has gradually become one of the most profitable businesses in China, and has made a fortune for tycoons such as Chen Tianqiao and Ding Lei. On the other hand, all kinds of illicit activities have arisen with the development of the online game business, among which cheating programs to assist players is the most troublesome for the game companies.

According to information acquired by the writer while working in a game company, cheating programs are software that run with the game software, thus giving them their name as game cheating programs. Cheating programs have several harms. First, they incur Gresham’s Law (bad money chases out good money), which makes rules-obeying players easily defeated and thereby damages the fairness of the game. Second they put more burden on the server and force the operator to purchase more servers and the bandwidth, which undoubtedly increases costs and decreases the stability of the server. Third, they enable players to fulfill game objective more quickly, which abnormally speeds up the progress of the game and could force the game company invest more human resources into developing new game content or elements. Although it is possible that some cheating programs are used to make up for the defects in the game, most have harmed the gaming experience, added costs of the company’s development and operation, and could jeopardize stable running of the game.

In China, cheating programs have already become a business, and any popular game will have teams focused on developing cheating program, as well as teams for operating and sales. There are also “gold farmers” within the game, the majority of who use cheating programs to earn currency, experience, or other goods within the game, which they then sell to other players. It would not be exaggerating to say that the cheating program industry is a parasitic cancer within the online game and their existence has severely damages the development of online gaming.

But, how to combat cheating programs has always haunted the big game companies. Operators of cheating programs have taken full advantage of the anonymity of internet use and the limited jurisdiction that countries have in the online environment. Additionally, online payment can avoid traditional payment channels, as the domain name and server of the cheating programs is usually outside the country, and account used to receive payment is usually opened by an individual user. Gaming companies are left unable to tell who the developer of the cheating program is and only able to momentarily view the IM software account number of the operator and seller.

In such a situation, if the game company wants to file civil lawsuit against the cheating program operator, it will encounter the several problems. First, the subject of the litigation is unclear; in many case the company does not even know the name of the defendant. Second, even if the game company can use investigation find out the name of the operator of the cheating program or information on the company running it, the game company still will not know anything about the other side’s financial conditions. This is because the cheating program operator knows that what it is doing is illegal so it usually transfers the money in its business accounts into the accounts of others or relatives. For this reason, even if the plaintiff wins the lawsuit, it is still very difficult to collect a monetary reward. Third, civil lawsuits are only able to combat the process of the selling and operating in the cheating program business but cannot touch the development of the programs. Ultimately, the cheating program business is the integral part of the “black economy,” and civil lawsuits are not adequate to thoroughly combat them.

As civil lawsuits do not work, many online game companies are only able to turn to the criminal law for help. But, the online game industry itself is a new emerging industry, and the harm caused by cheating programs has also never been seen before. Therefore, all of the big game companies and the legal practice industry have spent several years researching whether cheating programs violate the criminal law, and, if so, what crime should they be charged under. Thus far, violations have been pursued with the crime of illegal operation, the crime of copyright infringement, and the crime of damaging computer systems. We will introduce you to these three crimes over the first three days of this week.

I. The crime of illegal operation

The object of the crime of illegal operation is marker order, especially the market management systems in those fields with products having transaction limits and those requiring business licenses. The relevant regulation for the crime is Article 225 of the Criminal Law. Additionally, as provided in the Telecommunication Regulation, online game operations can be included in the value-added telecommunications business, and must be licensed for value added business operation by the Ministry of Engineering and Information. According to the Interim Online Publication Regulations promulgated in 2001 and the Interim Internet Culture Management Regulations promulgated in 2003, the publication and operation of online games requires administrative approval from the General Administration of Press and Publication and its local offices as well as the Ministry of Culture. For this reason, online gaming is a business that requires administrative licenses, and this has allowed some game companies try reporting cheating program developers as illegally operating.

The detailed legal basis for claiming illegal operation is the Interpretation on Several Issues concerning Application of Law in Hearing the Illegal Publication Cases by the Supreme People’s Court in 1998. As provided by Article 11:

“Publishing, printing, copying or issuing of illegal publications outside of Article 1 to 10 of this Interpretation that severely damage social order and disturb market order, when the circumstances are severe, can be judged and punished as the crime of illegal operation by the regulation in Article 225, Paragraph 3 of the Criminal Law.”

The first established case concerning cheating programs in China was illegal operation by Mr. Tan, the former vice president of Rising (瑞星). Beginning in June of 2004, the accused, Mr. Tan, and others had been developing the cheating program “007” for MIR 3. They also set up a website to advertise and provide a download link service, and they engaged themselves in the retail and wholesale of game cards for the cheating program. In the end, the money involved in the illegal operation totaled RMB 2 million yuan.

The first instance court held that Mr. Tan and the other defendants had been carrying out a for-profit operative internet information service without any statutory license from the authority. They had also violated national publishing laws by using the internet to run illegal online publishing, and thus damaged the lawful rights of the copyright holder, the publishing institutes, and the game players, and further disturbed the normal order of internet game publishing and operation. Therefore, the circumstances were especially severe and could be judged as the crime of illegal operation. After the judgment in the first instance court, the prosecuting attorneys counter-appealed judgment. The second instance court decided that all three defendants had been involved in the crime of illegal operation, the circumstances of the crime were severe, and then sentenced them to imprisonment of six years (the first instance court sentenced a year and six months) as well as a penalty of RMB 500,000 yuan.

After the judgment of the crime, game companies in China started to report cheating programs and accuse them of having conducted the crime of illegal operation. From judicial theory, however, the crime of illegal operation is mainly damaging market management systems, which is those industries with transaction limited goods and those that are administratively licensed. Therefore, if software operation is ruled as the crime of illegal operation, there must first be verification of illegal publication. In the early cases, the General Administration of Press and Publication confirmed many cheating programs as illegal publication, and they were accordingly prosecuted under the crime of illegal operation. But, traditional illegal publication normally contained pornographic or reactionary content. Moreover, in practice, the crime of illegal operation has been adopted as a catch-all crime, which means all conduct suspected to be violating the law can be prosecuted under it. As a consequence, academic and theory circles have long argued over the definition of these crimes in the Criminal Law. At the same time, the General Administration of Press and Publication began to reduce their confirmation of the crime of illegal publication over cheating programs. For this reason, recent cases have seen fewer cases using this crime.

Lawyer Contacts

You Yunting86-21-52134918  youyunting@debund.com/yytbest@gmail.com

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