table of contents
1. Definition of the legal attributes of virtual items
(1) The physical attributes of virtual items
(2) Application attributes of virtual items
2. The act of stealing virtual items constitutes the crime of illegally obtaining computer information system data
With the continuous development of the online game industry, virtual items are becoming more and more into people's lives. At the same time, it is not uncommon to steal virtual equipment and currency in online games and other acts that infringe on virtual items in online games, causing damage to the environment of the online game industry and infringing on the rights and interests of game participants. As for the act of stealing virtual items in online games, most of them believe that they should be regulated by criminal law, but in practice, the judicial authorities have always had different views on how to apply the criminal law to protect virtual items, and failed to achieve a unified application of the law.
In judicial practice, there is confusion in the application of law to the act of stealing virtual items from online games, which is due to the lack of clarity in the legal attributes of virtual items at the legislative level and differences at the theoretical level. Whether virtual items have property attributes and computer information system data attributes is an important factor in determining whether an act infringes on the object of the crime. In order to properly apply the criminal law to provide protection for virtual property, the legal nature of virtual property should be clarified.
Authors: Zhang Anyuan, Wang Yubo, Jilin University, China University of Political Science and Law, China European Law School
1. Definition of the legal attributes of virtual items
The form of a virtual item consists of two parts, the first part is a part of the game software that is part of the game program as a whole, and the second part is the image that is presented on the monitor through the data fragment. Among them, the former can be regarded as the physical attribute of the virtual item, and the latter can be regarded as the application attribute of the virtual item. The analysis of virtual items from different levels is conducive to clarifying the definition of their legal attributes.
(1) The physical attributes of virtual items
Regardless of the particularity of weapons and equipment in the virtual world, they are all binary data composed of 0s and 1s at the physical level. Paragraph 4 of Article 2 of the Interim Measures for the Administration of Online Games states that virtual currency for online games is stored in the server in the form of electromagnetic records and expressed in specific numerical units. This clause clarifies that virtual currency is an electromagnetic record in the form of data. In addition, in 2012, the Research Office of the Supreme People's Court approved a case of theft of online virtual items, holding that "virtual property is not property, but is essentially electromagnetic records and electronic data". The data of the Virtual Items is stored in the game operator's game server as an electromagnetic record in the form of data after the editing is completed, and is stored on the online game participant's local hard disk after the online game participant downloads or updates the game.
(2) Application attributes of virtual items
At the application level, virtual items are represented as images presented on a display through data fragments. Since interest refers to an object object that satisfies the survival and development needs of members of society in a certain social form, and online game participants can obtain material or spiritual satisfaction through the image, virtual items should be used as a kind of interest that can satisfy the material or spiritual life of members of society. However, the life interests embodied in the application of virtual items do not necessarily have to be protected by criminal law, and even if they are protected by criminal law, it is necessary to determine how they should be protected.
1. Denial of the property attributes of virtual items
The application attribute of virtual items is embodied as a kind of life interest, but not all objects with interests are property referred to in the criminal law, and the recognition of virtual items as a life interest does not mean that they have property attributes. It is concluded that most of the scholars who support the property attributes of the interests of virtual items at the application level have extracted the characteristics of the property, and discussed the property attributes of the virtual items by demonstrating that the virtual items also have the above characteristics. However, this kind of discussion has shortcomings in both methodology and argumentation.
First of all, the property attributes of virtual items should be discussed in an all-encompassing rather than analogous way. The method of legal interpretation is based on syllogisms. Specifically, it is necessary to start from the determined major premise, and the minor premise and the major premise are covered, and if the implication is successful, the conclusion can be drawn that the minor premise should be applied to the legal effect of the major premise. But in a syllogism, the premise is exhaustively described, i.e., the premise is certain. In the relationship between virtual items and property, a virtual item is property only if it has all the elements described by the property. However, some scholars do not exhaust all the elements contained in the property when analyzing the relationship between virtual items and property, but only describe some of the characteristics of the property, and then believe that the virtual items also have these characteristics and determine that they have property attributes. This is really an analogy rather than an implication. Moreover, even if the method of feature analysis is used in the same way, different scholars will extract different characteristics, which is extremely subjective and cannot be verified by other means, and only reflects the value position of the scholars themselves.
Second, the acquisition of virtual items is not the creation of property through personal labor. There is an opinion that the virtual items generated in online games are created through the labor of individuals. This view misunderstands the mechanism of generating virtual items in online games, which is not created by the participants of the online game through personal labor, but is pre-set by the game developers by writing data. In fact, virtual items in online games are not created by the individual efforts of game participants, but are pre-set by game developers by writing data. When an online game participant downloads or updates a game, the data of all virtual items in the game is compressed and stored on the local hard disk, and when the game participant triggers the conditions for the generation of virtual items, the game operator will modify or add the relevant virtual item data in the game participant's account to enable the game participant to obtain the right to use the corresponding virtual items. Therefore, the process by which a game participant obtains virtual items in a game is technically written into the established data by the game operator with set rules, and does not indicate that the virtual items were created by the game participants through their personal efforts, let alone that the virtual items are independent property of the game operator.
2. Affirmation of the service attributes of virtual items
Online gaming operators will require game participants to agree to the relevant service agreement when they register an account or log in. Access to the game is only possible if the game participant agrees to the service agreement provided by the operator. Since the rights and obligations between the game participant and the operator are set out in the service agreement, the contractual relationship between the two is voluntary. Virtual items are a tool and means for game operators to provide other services as part of their entertainment and interactive services. At the same time, game operators impose strict restrictions on the trading of virtual property, and they do not allow transactions outside the circumstances described in the terms and conditions in order to realize the benefits generated by virtual property. The restriction on the transaction of virtual items by game operators is to protect the economic benefits generated by the services provided by the game operators as a kind of service provided by them.
2. The act of stealing virtual items constitutes the crime of illegally obtaining computer information system data
It can be seen from the provisions of the Criminal Law on this crime that the acts constituting the elements of this crime include the acts of intrusion or the use of other technical means and the purpose of obtaining data. The key to whether the act of stealing virtual items in an online game meets the crime of illegally obtaining computer information system data lies in the judgment of whether the virtual items in an online game are computer information system data and whether the act of stealing is in line with both the means and the ends.
First of all, virtual items in online games belong to computer information system data. According to Article 2 of the Regulations of the People's Republic of China on the Security Protection of Computer Information Systems, "computer information system refers to a human-computer system composed of computers and their related and supporting equipment and facilities (including networks), which collects, processes, stores, transmits, retrieves and processes information in accordance with certain application objectives and rules". The data of Virtual Items is stored in the servers of the online gaming operator, which is a computer system composed of computers and related facilities that is used exclusively to provide, administer and maintain online gaming services. The data corresponding to virtual items such as equipment or currency in online games is generated, stored, and transported in the system, so virtual items such as equipment in online games should be computer information system data. There is a view that the internal data that enters the information system and is stored, processed and transmitted for the realization of the functions of the information system is the object of protection under the provisions of the Criminal Law, and the data of virtual items is excluded from the scope of data of the computer information system. In the author's opinion, this interpretation is a restrictive interpretation of computer information system data. Although the Criminal Law does not prohibit the restrictive interpretation of the content of legal provisions, from the standpoint of the principle of legality of crimes, it should be interpreted as strictly as possible from the perspective of the semantics of legal provisions.
Second, the act of stealing virtual items in online games by intrusion or other technical means is in line with the means and purposes of the crime of illegally obtaining computer information system data. Since the act of obtaining data from a computer information system is manifested as the actor's actual control over the data, and the right holder's loss of data or use of the data is not a condition for establishment, the actor should be deemed to have obtained the data by merely copying the data. In the case of stealing virtual items in online games, the stealer enters the game system to copy or transfer the virtual items, and there is a copy of the computer information system data, so the act of stealing the virtual items in the online game meets the purpose of the crime of illegally obtaining computer information system data. The means of the crime of illegally obtaining computer information system data refers to the act of trespassing or employing other technical means, where "trespassing" refers to the act of entering the computer information system of another person without the authorization of the right holder of the computer information system or beyond the scope of authorization; Although "taking other technical means" is not an act of invading the computer information system of others, it should also be an act of obtaining data from a computer information system in a manner that violates national laws and regulations. Obtaining data from a computer information system by trespassing or without the authorization of the owner of the computer information system or by other technical means beyond the scope of authorization is an act of means and purpose that conforms to the crime.
While the popularization and development of computer and network technology has brought convenience to people's lives, it also contains new risks such as infringement of virtual items. The continuous emergence of related problems has put forward new requirements for both theory and practice. Due to the lag of the law, the mainland has not made clear provisions on the legal attributes of virtual items and the protection of the criminal law, which also leads to the inability of judicial practice to achieve a uniform application of the law in cases of stealing virtual items from online games. It is clarified that the physical attributes of virtual items should be based on the way of thinking of cybercrimes, and computer-related crimes should be used to protect them under the criminal law, while the application attributes of virtual items should be based on the principle of legality of crimes, denying the improper interpretation of the analogy of virtual items as property, and getting rid of the traditional inertial thinking of property crimes.
Source: People's Court Daily
Editor: Sharon