The "Crime and Punishment" of Game Plug-ins

Yao Wen / Comics

　　At the 2023 Hangzhou Asian Games, "e-sports" was officially listed as one of the competition events for the first time, marking that video games have become officially recognized as a comprehensive sports competition. However, game cheats, known as "cheats", have always been a mysterious existence that affects the fairness of competition. At the end of November 2023, CCTV News Channel reported on the cracking process of the country's first "AI plug-in" case, which once again aroused people's attention to game plug-ins, especially the challenges posed by the in-depth supervision of the Internet.

　　The reporter found that with the development of artificial intelligence algorithm technology, game plug-ins have been formed in the black and gray industry, and the functionality and concealment are also constantly strengthened. Relevant cases show that in judicial practice, there are many controversies about the alleged crimes of making and selling game plug-ins. What exactly are game plug-ins, and what crimes may be suspected of in making and selling game plug-ins? In this regard, this reporter interviewed relevant experts and scholars on relevant issues.

　　A variety of "power upgrades" plug-ins

　　On December 18, 2003, the then General Administration of Press and Publication, the Ministry of Information Industry and other departments jointly issued the Notice on Carrying out Special Governance of "Private Servers" and "Plug-ins" (hereinafter referred to as the "Notice"), which provided a basic definition of the illegal acts of "private servers" and "plug-ins", that is, without permission or authorization, destroying the technical protection measures of Internet game works that are legally published and copyrighted by others, modifying work data, setting up servers without permission, making game recharge cards (point cards), operating or connecting to operate legal publications, Internet game works in which others enjoy copyrights, so as to seek benefits or infringe on the interests of others. The Notice clarifies that the above-mentioned acts are illegal Internet publishing activities and should be severely cracked down on in accordance with the law. Some people point out that "plug-in" is not a legal term, but an industry term, taking online game plug-ins as an example, it is actually a program that allows players to achieve the purpose of "skill upgrade" and "pass the level" with the least amount of time and money by modifying the memory or network data package of the game client. With the rapid development of the game industry and related technical principles, there is a trend of diversification of cheat-in illegal acts, and judicial practice also differs in the definition of convictions.

　　In the first-instance criminal verdict of the case of Huang providing intrusion and illegal control of computer information system programs, the Jingmen City Daodao District Court of Hubei Province held that the act of producing and selling such plug-ins constituted the crime of providing programs that illegally controlled computer information systems. With regard to modifying the data of the game client and producing and selling plug-ins that can realize functions such as "teleportation" and "perspective" that the game did not originally have, the Shanghai Xuhui District People's Court found that the defendant constituted the crime of providing programs that illegally controlled computer information systems.

　　However, there are also opinions that such game plug-ins constitute the crime of illegal business operation or copyright infringement. By modifying the server data, players can realize the "perspective", "teleportation" and "aim" functions that the game does not have, such as obtaining the coordinates of the location hidden by hostile players during the battle, etc., which can often help users improve the winning rate of the battle. In this regard, when handling the case of He and Wang's sale and operation of the "chicken leg" plug-in, the judicial personnel in a certain place held that the plug-in program "chicken leg" involved in the case realized the functions such as "perspective eye" that the game did not have by deciphering and using the communication protocol of the online game without authorization, modifying the memory data, etc., so that the user could easily win the game. The criminal suspect issued the plug-in program without permission, which damaged the interests and reputation of the game copyright owner and the normal market order of the game, and was suspected of copyright infringement.

　　Lu Pei, a partner at Beijing Jiren Law Firm, said: "There are many types of plug-ins, and the technical principles and damage caused to the game itself are different, which is why the conviction of making and selling plug-ins has been controversial in practice. ”

　　The web of justice is getting tighter and tighter

　　Xu Zhongyi, procurator of the Kunshan City Procuratorate of Jiangsu Province, once made a review of the criminal charges that may be involved in game plug-ins, "For many years, the question of what kind of crime should be applied to the production and sale of game plug-ins has long plagued judicial practice, and the current mainstream views include the crime of illegal business operation, the crime of copyright infringement, the crime of destroying computer information systems, and the crime of providing intrusion and illegal control of computer information system programs and tools. ”

　　In this regard, Kang Tianxiong, deputy director and associate professor of the Intellectual Property Law Teaching and Research Department of Southwest University of Political Science and Law, pointed out that "before the implementation of the Criminal Law Amendment (11) on March 1, 2021, there were difficulties in interpreting the legal provisions of the criminal law for directly applying the crime of copyright infringement to the cheating behavior, and only item (1) could be applied when determining the crime of copyright infringement. He said that there is no longer the above-mentioned problem of legal interpretation, and the provisions of Article 217 (6) of the Criminal Law can be directly applied. "The update and iteration speed of technology is fast, and considering the requirements of legal stability, it is not appropriate to classify and characterize plug-in behaviors according to the different specific technologies when legally regulating them. Only by applying the crime of copyright infringement can we accurately feedback the legal interests protected by the regulation of plug-ins - intellectual property rights. ”

　　Combined with relevant cases, the reporter saw that some of the production and sale of plug-ins that occurred after March 1, 2021 were not convicted of copyright infringement in judicial practice.

　　Lu Chuan, deputy director of the Intellectual Property Procuratorate Office of the Shanghai Municipal Procuratorate, told reporters that the key is how to understand the "technical measures" in Article 217 (6) of the Criminal Law. In her view, the "technical measures" here should refer to the effective technologies, devices and components used to prevent and restrict the browsing and appreciation of works, performances, audio and video recordings without the permission of the right holders, or to provide works, performances, audio and video recordings to the public through information networks. "In practice, the 'technical measures' that many game plug-ins avoid are not intended to restrict access to others, after all, the original intention of game developers is to allow more people to download and use the client. Therefore, it should not be found to be a crime of copyright infringement. ”

　　Lu Chuan said that based on this, various localities may tend to choose computer crimes when qualitating, such as the crime of providing intrusion and illegal control of computer information system programs and tools, based on their rights and interests such as suspected of disrupting the order of the market economy.

　　Therefore, it is necessary to consider whether the technical protection measures bypassed by game plug-ins are designed to protect copyrights or related rights when convicting. If some technical measures are not related to the protection of copyright, such as only communication encryption technology is used to modify data packets, it may not be appropriate to directly determine the crime of copyright infringement. Lu Pei added.

　　Curb the vicious development of game plug-ins in an all-round way

　　A variety of plug-ins, including new types of plug-ins such as AI plug-ins, have a certain impact on the operation of game products, which may harm the interests of developers and other users, and are prone to breeding illegal crimes. So how to restrict and crack down on illegal game plug-ins?

　　The reporter learned from the information released by the data security department of Tencent's "Honor of Kings" that at present, as a game developer and operator, it has blocked plug-in samples by conducting anti-cheat system verification, strengthening the real-time detection ability of plug-ins, training cheating behavior identification models in the bureau, optimizing anti-plug-in intelligent monitoring schemes, etc., and cracking down on plug-in behaviors by announcing the ban of accounts, reporting and transferring clues, etc.

　　In this regard, Wang Lei, a researcher at the Intelligent Technology Law Research Center of Beijing Institute of Technology, said that game developers should pay attention to the important role of new technologies in the governance of cheats, and continue to pay attention to the new cheat mechanisms that appear in practice. Consideration should also be given to incorporating artificial intelligence and machine learning into anti-cheat systems to improve the ability to identify new and complex cheat behaviors.

　　In view of the controversy over the judicial application of cheating behaviors, Kang Tianxiong suggested that the legislature could make an official interpretation on the characterization of cheating behaviors. In addition, as a mandatory legal norm, the criminal law should adhere to the principle of modesty in the application of the criminal law, and it is necessary to strictly review whether the relevant plug-in behavior is punishable under the criminal law. ”

　　Combined with the trial of foreign-related cases in recent years, Wang Lei proposed that in the context of the development of the digital economy, it is necessary to prudently apply criminal law and regulatory means, and proposed that the best practice of balancing the rights and interests of all parties through the combination of civil and criminal law and civil infringement can be explored.

　　"In addition to the criminal rights protection path, similar acts can also be regulated by the Anti-Unfair Competition Law, helping rights holders stop infringement and obtain certain economic damages. Lv Pei said that all parties should take a multi-pronged approach, comprehensively use technical means and legal means to crack down on game plug-ins, guide more people to look at the deep-seated value of the game industry more comprehensively, and promote the prosperity and healthy development of the game industry.

　　Links to legal provisions

　　Article 217 of the Criminal Law of the People's Republic of China [Crime of Copyright Infringement] Whoever, for the purpose of making profits, infringes on copyrights or copyright-related rights in any of the following circumstances, and the amount of unlawful gains is relatively large or there are other serious circumstances, a sentence of up to three years imprisonment and/or a fine is to be given;

　　...... (6) Without the permission of the copyright owner or copyright-related rights holder, intentionally avoiding or undermining the technical measures taken by the rights holder to protect copyright or copyright-related rights for their works, audio or video recordings, and so forth.

　　Article 285, Paragraph 3 [Crime of Providing Programs or Tools for Intrusion or Illegal Control of Computer Information Systems] Where programs or tools specifically used for intrusion or illegal control of computer information systems are provided, or programs or tools are provided to others while clearly knowing that they are committing illegal or criminal acts of invading or illegally controlling computer information systems, and the circumstances are serious, punishment is to be given in accordance with the provisions of the preceding paragraph.

Source: Procuratorate Daily