Image source: Generated by Unbounded AI Tools
01AIGC entrepreneurship is the biggest legal risk
The biggest legal risk of AIGC entrepreneurship in China is not the copyright dispute over whose author the AIGC work should be, nor whether the data crawled by its own crawlers is infringing, but the criminal offense that comes with accidentally surfing the Internet and data across borders.
This morning, a WeChat friend forwarded me a picture that roughly said that an entrepreneur who accessed Chatgpt and Midjourney for external sales was criminally detained on suspicion of illegal business operations, and after being released on bail to remind his peers to pay attention, and said that he did not dare to touch the Internet again.
The picture is not known to be true or false, for reference only
It's not clear whether it's true or not, but it's no accident. Honglin lawyers also often receive many inquiries from entrepreneurs, such as building overseas servers to provide AIGC services such as ChatGpt for Chinese corporate customers, or packaging them into mini programs and selling members on the Internet. It's easy to earn money by offering Buddha flowers, but can this money be earned with peace of mind?
In Honglin's previous articles and short videos, he has repeatedly reminded all AIGC entrepreneurs that because of the "management system" of China's Internet, if you want to do AIGC entrepreneurship in China, you can do anything, but there are two places that are absolute red lines, no negotiation, one is the problem of scientific Internet access, and the other is the security of data going overseas.
Many friends are curious, I myself often surf the Internet scientifically, and no one cares about me. How can starting a business become a crime of illegal operation? This needs to be explained to you in particular.
First of all, as an individual Chinese citizen, if you are based on curiosity and the need to learn, you can go on the Internet scientifically, do not speak indiscriminately, do not spread sensitive and colored content, even if you know what Internet police do on the Internet, but are too lazy to care about you, because it is really impossible to manage it.
Secondly, if you feel that solo music is not as good as public happiness, and you can sell ladders that can access the Internet scientifically for free or openly on the Internet, then sorry, the public security can deal with you immediately, because your society is more harmful, more concentrated, and law enforcement is cost-effective.
Honglin lawyers call it "one end and one nest of crime." In the same way, as an individual netizen, you play Chatgpt by yourself to learn and improve work efficiency, and there is no big problem; But if you make money with this thing, you can't.
02Three real cases
We can look at three cases, although not because of Chatgpt, but the truth is the same.
From 2013 to June 2017, without obtaining relevant business licenses, Wu set up a VPN server on the Internet and provided a member account and login software, which can browse overseas websites after logging in; Later, it opened an online store and rented or sold VPN software and VPN router hardware to general users by opening the "Fangou VPN" website, etc., with thousands of transactions, illegal business turnover of 792638 yuan, and illegal profits of about 500,000 yuan. In the end, he was sentenced to five years and six months in prison and fined RMB 500,000 for suspected illegal business.
In April 2019, Cao successfully built 2 websites through network self-study, and provided "circumvention" software download through the website, while renting and configuring overseas servers to establish nodes, and selling the server address, password and other information required to connect to the nodes on the website in the form of subscription links, which can be used in conjunction with subscription links to access overseas Internet sites that cannot be accessed by domestic IPs. By the time of seizure, Cao had sold a total of 2,273 circumvention tools, and illegally made a profit of 64,116.97 yuan. The court held that his conduct constituted the crime of providing programs and tools for intruding into and illegally controlling computer information systems, and sentenced the defendant Cao to two years and six months in prison, suspended for four years, and fined him RMB 10,000.
On July 28, 2020, a municipal public security bureau received a clue that resident Yi was suspected of establishing and using non-legal channels for international networking, and the police of the Cyber Security Brigade summoned Yi in accordance with the law. After investigation, the suspect Yi confessed to his illegal acts of illegally establishing and using non-legal channels to access overseas networks and selling VPN software online. Finally, a warning was imposed and a fine of 1,000 yuan.
From the above three real cases, it can be seen that any provision of "scientific Internet access" services will inevitably involve administrative or criminal risks.
03 Risk of administrative penalties
In the process of using overseas AIGC products to generate pictures, there are legal risks in both the export and entry of data as the beginning and end of the service.
According to OpenAI's official show, OpenAI's APIs are accessible worldwide, but may be limited and interfered with by China's network environment. To use it smoothly, you need to connect internationally via VPN. MidJourney does not currently open official API interface calls, and accessing APIs through other technical means may constitute infringement.
According to Article 6 of the Interim Provisions on the Administration of International Networking of Computer Information Networks, direct international networking of computer information networks must use the international entry and exit channels provided by the national public telecommunications network of the Ministry of Posts and Telecommunications. No unit or individual may establish or use other channels for international networking on their own. At the same time, Article 14 stipulates: Anyone who violates the provisions of Articles 6, 8 and 10 of these Provisions shall be ordered by the public security organ to stop the Internet, given a warning, and may also be fined not more than 15,000 yuan; Where there are unlawful gains, the unlawful gains shall be confiscated. Therefore, accessing AIGC products through "circumvention" software is an administrative violation and may be subject to fines and confiscation of illegal gains.
In terms of data export, OpenAI's official website clearly stated that the data accessed by the API will be stored on the subprocessor for 30 days, and the location of the subprocessor "snowflake" is in the United States, in other words, the domestic use data will be transmitted to foreign servers for storage, and the questions raised by users are very likely to involve sensitive information and even important data related to national security, economic operation, social stability, public health and safety.
According to OpenAI's API Data Policy, OpenAI does not use data submitted by customers through APIs by default to train OpenAI models or improve OpenAI's service offerings. However, the above data policy does not apply to OpenAI's non-API consumer services. Therefore, for non-API consumer products such as DALL-E, OpenAI may collect and use content such as prompts, responses, uploaded images, and generated images to improve the service, which may cause data export risks.
If the personal information provided overseas meets the threshold stipulated in the Measures for Security Assessment of Data Export, it is necessary to report the security assessment of data export to the national internet information department through the local provincial-level internet information department.
According to the Data Security Law, those who provide important data overseas in violation of relevant provisions may be subject to administrative penalties such as fines, corrections, warnings, suspension of relevant operations, suspension of business for rectification, revocation of relevant business permits or business licenses, and fines will also be imposed on the directly responsible managers and other directly responsible personnel.
Moreover, the amount of the fine is not low.
In addition, neither OpenAI nor MidJourney's terms of use authorize the act of building a mirror website, which may be suspected of infringing the intellectual property rights of the website, and if the use of OpenAI and MidJourney-related trademarks is involved, it may constitute unfair competition against OpenAI and MidJourney. In 2019, OpenAI published a blog post about the reasons why it did not provide services to China under the circumstances, which mentioned the issue of intellectual property protection.
04 Criminal risk
In judicial practice, as mentioned in the previous case, some courts have defined the sale of "circumvention" services as the crime of illegal business operation in accordance with Article 225 of the Criminal Law of the mainland, but there are also academic views that this criminalization view is debatable. Because according to the Classification Catalogue of Telecommunications Services, the sale of "circumvention" software is a value-added telecommunications business, and it does not belong to the "monopoly, monopoly or restricted items" provided for in Article 225 of the Criminal Law, and cannot be recognized as a crime of illegal business operation according to the first paragraph of Article 225 of the Criminal Law. Therefore, it remains to be examined whether the sale of "circumvention" services will be suspected of the crime of illegal operation.
According to the Notice of the Ministry of Industry and Information Technology on Cleaning Up and Regulating the Internet Network Access Service Market, without the approval of the telecommunications department, it is not allowed to use methods such as establishing or leasing dedicated lines to carry out cross-border business activities through special channels, otherwise it may face the risk of being ordered by the public security, internet information and other departments to shut down "circumvention of the wall" services. Therefore, the provision of "circumvention" services may face the risk of constituting the crime of refusing to perform information network security management obligations.
05Is it okay to rent an international line?
That friend said, in order to go online scientifically and legally, I go through the formal process and apply for a VPN that can be legally used in China from operators approved by the national telecommunications authorities (China Mobile, China Unicom, China Telecom, China Optoelectronics), and then package the product for sale?
The answer is: no.
Carry out cross-border business in violation of laws and regulations in accordance with the Notice of the Ministry of Industry and Information Technology on Cleaning Up and Regulating the Internet Network Access Service Market. Without the approval of the telecommunications authorities, they must not establish or lease other channels such as private lines (including virtual private networks, VPNs) and other channels to carry out cross-border business activities. International dedicated lines leased by basic telecommunications enterprises to users shall centrally establish user files, and make it clear to users that the purpose of use is only for their internal office use, and must not be used to connect domestic and foreign data centers or business platforms to carry out telecommunications business activities.
Translated into the vernacular: after renting a dedicated line, the company's internal employees can use it, but if they want to open it to the public, they cannot.
Some large models in China
06 Conclusion
Is it really impossible to complete the entrepreneurship of the AIGC application layer? Of course not. Use China's local large-model products to do the underlying technical support.
The prosperity and development of an industry requires the improvement of the underlying technology and infrastructure, as well as the application layer and the user side.
In the Web 2.0 era, the ability of China's excellent product managers and operation students is visible around the world, and in the Web 3.0 era, we cannot lose.
Web 3.0 entrepreneurship is nine deaths, no one can tell you how to succeed, but read more articles by Honglin lawyers, maybe you can avoid some pitfalls.