The original article was published in Copyright Theory and Practice, Issue 4, 2024, with the original title "Analysis of Legal Issues of Copyright Infringement Crimes of Circumvention of Technological Protection Measures - Criminal Law Characterization of the Sale of Pirated "Dongles". The author, Gao Weiping, is the presiding judge of the Criminal Division of the Shanghai No. 3 Intermediate People's Court and a fourth-level senior judge; Qian Yanduo is a clerk of the Criminal Division of the Shanghai No. 3 Intermediate People's Court.
【Executive Summary】
Even if the actor produces, imports, or provides technical measures for copyright protection or copyright-related measures taken by the rights holder for his works, audio or video recordings, etc., including technical means, analysis tools, pirated "dongles", etc., even if the actor does not directly carry out the infringement of circumventing or cracking the technical measures, but according to the relevant provisions of the "Amendment (11) to the Criminal Law of the People's Republic of China", it is one of the circumstances of copyright infringement, and if it meets the standard that the amount of unlawful gains is relatively large or the circumstances are serious, The crime of copyright infringement may be criminally regulated in accordance with the law.
【Keywords】
Criminal law; copyright infringement; technical measures; indirect circumvention behavior; Pirated "dongles"
*The cases involved in this article are among the top 10 cases of the people's courts in 2023
1. Brief facts of the case
Royal Philips S.A. and its affiliates (hereinafter referred to as Philips) are the copyright owners of the Voyager platform software for ultrasound equipment, the Azurion R1 software for angiography machines, the Brilliance software for CT scanners, the IntelliSpace Portal Nebula workstation software, the code calculator software, and maintenance manuals. GE Precision Medicine Co., Ltd. (hereinafter referred to as GE Healthcare) is the copyright owner of the medical image processing software AW workstation (model AW VolumeShare 7) and the MRI equipment Image and Raw Data Viewer repair tool software. Siemens Healthineers GmbH (hereinafter referred to as Siemens Healthineers) is the copyright owner of the medical image processing software Feiyun Workstation (model syngo.via). In order to protect the above-mentioned works, Philips and General Medical have respectively set up technical protection measures such as IST security authentication systems, keys (dongles, SSAs, etc.), and code calculators.
Since March 2019, for the purpose of making profits, defendant Liu Changsheng has made dongles used to circumvent copyright technical protection measures without the permission of the above-mentioned copyright owner, provided download links to CAT software, maintenance manuals and other works, copied software such as Nebula workstation, AW workstation, and Feiyun workstation without authorization, and sold dongles and pirated software to Liu Mouyu (handled in a separate case) and others through channels such as the Xianyu platform. According to the audit, from March 2019 to July 2022, Liu Changsheng received a total of more than 910,000 yuan in sales of dongles and pirated software through his personal Alipay and other accounts (the following currencies are RMB). From July 2020, defendant Liu Changsheng instructed defendant Liu Man to open an account with Xianyu to sell dongles and pirated software. During this period, Liu Changsheng was responsible for making dongles, copying pirated software, putting goods on the shelves, sending express delivery, etc., while Liu Man was responsible for customer service and collection. After auditing, from July 2020 to July 2022, more than 140,000 yuan of sales of dongles and pirated software were collected through Liu Man's personal Alipay. It was determined that the dongles sold by Liu Changsheng and Liu Man could avoid the technical protection measures taken by the above-mentioned copyright owners for their software copyrights, and the pirated software sold was substantially the same as the copyright owner's work. On July 27, 2022, the investigation agency arrested Liu Changsheng and Liu Man, and seized the card reader, chip card and other items used to make dongles on the spot. After the two defendants arrived at the case, they truthfully confessed the facts of the above-mentioned crimes.
2. Judgment results
After trial, the Shanghai No. 3 Intermediate People's Court held that the defendant Liu Changsheng began to produce and sell pirated dongles and software from March 2019, and was at the source of the industrial chain in a series of related cases, involving a large number and wide range of software and authentication tools, and the amount of illegal business amounted to more than 1.06 million yuan, which not only infringed on the software copyrights of a number of rights holders, but also affected the competitive advantages of the rights holders, and Liu Changsheng had never repaired Philips' medical equipment. The performance, security and stability of the software cannot be guaranteed, and the qualifications and professional background of the purchasing customers are not reviewed one by one. Therefore, the defendants Liu Changsheng and Liu Man, for the purpose of making profits, reproduced and disseminated their works to the public through information networks without the permission of the copyright owner, and deliberately avoided the technical measures taken by the copyright owner to protect the copyright of their works. In joint crimes, defendant Liu Changsheng played a major role and is the principal offender, and shall be punished in accordance with all the crimes in which he participated, organized, or directed; Defendant Liu Man played a secondary role and was an accomplice, and shall be given a lighter punishment. Defendants Liu Changsheng and Liu Man were able to truthfully confess the main facts of the crime after they were brought into the case, which is a confession and may be given a lighter punishment. Defendants Liu Changsheng and Liu Man pleaded guilty and accepted punishment, and paid the fines in advance before trial, so they may be given a lenient disposition. Therefore, it was decided that: (1) the defendant Liu Changsheng was guilty of copyright infringement and was sentenced to three years and two months imprisonment and a fine of RMB 700,000; (2) Defendant Liu Man committed the crime of copyright infringement and was sentenced to one year imprisonment, suspended for one year, and fined 80,000 yuan; (3) Unlawful gains are to be recovered, and card readers, chip cards, CD-ROMs, computers, mobile phones, and so forth used in the crime seized in the case are to be confiscated.
After the first-instance judgment in the case, the defendants Liu Changsheng and Liu Man did not appeal, and the public prosecution did not raise a protest. The case is now in force.
3. Legal analysis
(1) The legal definition and type of technical measures
With the development of science and technology and digital economy in modern society, the limitations of high cost and low efficiency of traditional communication have been broken, making text, audio-visual works more efficient, more convenient and more comprehensive dissemination than before, and Internet users can easily browse and obtain the works of the copyright owner, and even download and copy them for dissemination and use without the permission of the copyright owner. In order to prevent the work from being widely disseminated and used, the copyright owner will take corresponding technical measures to protect the rights and interests of the copyright owner. The advantage of this kind of technical measure is that it is a kind of precautionary measure that fundamentally cuts off the way to use, reproduce and disseminate the work without permission, so the protection effect is much more ideal than the method of seeking legal remedies after the occurrence of copyright infringement. [1]
What are technical measures? The Copyright Law of the People's Republic of China (hereinafter referred to as the "Copyright Law"), amended in 2001, added provisions for the protection of "technical measures" for the first time. [2] Article 49 of the Copyright Law, as amended in 2020, follows the definition of technological measures in the Regulations on the Protection of the Right of Information Network Dissemination (hereinafter referred to as the "Information Protection Regulations"), i.e., effective technologies, devices or components used to prevent and restrict the browsing and appreciation of works, performances, audio and video recordings without the permission of the right holder, or the provision of works, performances, audio or video recordings to the public through information networks. From the definition of technological measures in the Copyright Law, technical measures can be divided into two categories, one is access control measures,[3] which are mainly aimed at preventing others from reading and appreciating works or running computer software without permission, so as to prompt others to pay the corresponding consideration when browsing and using works. Users can only unlock and browse the works after applying for a "key" (such as a "dongle" tool, username, and password) from the copyright owner. [4] Access control measures are indirect means of protection, which do not directly protect the exclusive rights of the copyright owner, but can indirectly protect the copyright owner's work from illegal copying. The other category is copyright protection measures[5], that is, technical measures to prevent the illegal copying, distribution, and dissemination of works through information networks. Copyright protection measures are a means of directly protecting the exclusive rights of copyright owners, and the technical means will not cause users to be unable to browse and enjoy works online or run computer software, but they are not allowed to download, copy and disseminate works, for example, some online teaching courses are only allowed to watch videos online, or QQ Music is only allowed to listen online, but download, copy and dissemination are not allowed.
In this case, in order to protect the copyright of the relevant platform software and maintenance tool software in their medical equipment, the right holders Philips, General Motors and Siemens Healthineers adopted technical tools and means such as security authentication systems and authentication tools (commonly known as dongles), which are equivalent to the "access control" system in medical equipment, and the key equipment used by authorized personnel is equivalent to "door card", and through the verification of "access control", they can access and use all kinds of intellectual property rights protected by the security system. Such technical measures are among the access control measures described above.
(2) Elements of infringement for circumvention of technological measures
However, the technical measures taken by the right holder against its copyright cannot be perfect in the normal operation process, and accordingly, there will always be some network technology experts who design and create means to avoid or destroy the technical measures of the right holder for the purpose of illegal profit, so as to break the "protective shield" of copyright. In view of the fact that tools and methods for circumventing technological measures will always go hand in hand with technical measures, while making up for the shortcomings of legal means after the fact, it is necessary to make the law provide protection for the technical measures themselves, so that technological measures can become the most direct and effective technical means for rights holders to protect their copyrights and other intangible assets within a certain scope and limit. [6]
1. Prerequisites for determining infringement: the legitimacy and effectiveness of the technical measures
The premise for determining that the circumvention of technological measures by the actor is punishable by infringement is that the circumvented technical measures comply with the provisions of the law, and the Copyright Law does not protect all the technical measures set up by the right holder, but as for which technical measures need to be protected, there is no corresponding legislation or judicial interpretation to clarify the scope of protection of technical measures. In this case, the author believes that technical measures should not be subject to higher requirements and frameworks, but at least two basic requirements need to be met:
First of all, the technical measures taken by the right holder should be legitimate and should not infringe upon the legitimate rights and interests of others and the public interest. If the technical measures lack legitimacy, they will deviate from the direction of rights protection and become a tool used arbitrarily by the right holder, which greatly restricts the reasonable use of the public. Legitimacy is manifested in the following ways: First, the subjective purpose is legitimate, that is, the right holder is committed to protect the copyright from infringement, and if it exceeds the scope of the purpose, such as collecting user information while preventing others from infringing its copyright, it is beyond the scope of legitimate protection of technical measures. Second, the means taken are justified, that is, the protective measures are defensive protection rather than active offensive and punitive. Article 26 of the Guidelines for the Trial of Copyright Infringement Cases (hereinafter referred to as the "Trial Guidelines") formulated by the Beijing High People's Court stipulates the following technical measures that are not protected by the Copyright Law: 1. They are used to realize the bundled sale of works, performances, audio and video recordings with products or services; 2. Used to realize the regional division of the price of works, performances, and audio and video recordings; 3. Used to destroy the computer system of users who use works, performances, audio or video recordings without permission; 4. Other technical measures that are not related to the legitimate interests of the right holder under the Copyright Law. The Trial Guidelines also mainly regulate the scope of technical measures from the perspective of the legitimacy of the ends and means, and those technical measures that are not related to the protection of the legitimate interests of copyright in order to meet the needs of business models, business strategies, network security, etc., should be excluded from the scope of legal protection.
Second, technical measures must also be effective. Technological measures should have a certain threshold for circumvention, and technical measures that can be easily circumvented and cracked by the general public without the help of tools should not be protected by law. The Trial Guidelines also stipulate the effectiveness of technical measures and the criteria for judging them: technical measures protected by the Copyright Law shall be effective technical measures, and whether the technical measures are effective shall be based on whether the ordinary methods mastered by ordinary users can be avoided or cracked. Where technical personnel are able to circumvent or crack technical measures in some way, it does not affect the effectiveness of the technical measures. The Trial Guidelines clarify the criteria for judging the effectiveness of technical measures, based on the perspective of the general public, as long as the technical measures can effectively avoid being circumvented by ordinary users in the normal course of use. [7] In practice, since it is difficult to present evidence of validity, it is not appropriate to impose a higher standard of proof on the right holder, as long as preliminary evidence can be provided, taking into account the industry and business model to which the right holder belongs, and the infringement of the actor's subsequent use of the work, etc., to comprehensively judge the effectiveness of the technical measures taken by the right holder.
2. Determination of infringement exceptions: exclusion of obstructions
The Copyright Law encourages the dissemination of creative works to promote learning, not only to protect the intellectual achievements of special new works in the context of the development of new technologies, but also to protect the relevant rights and interests of data and material collectors, processors and users, so as to encourage capital investment and the enthusiasm of technological innovation; It is also necessary to encourage data openness and sharing, promote the development and utilization of public data and the sharing and circulation of data resources, and build a framework for balancing the interests of protection investment and data sharing. In order to prevent copyright owners from abusing their rights to restrict the legitimate rights and interests of the public, the Copyright Law has designed a number of "safety valves" to restrict rights, so as to balance the interests of copyright owners and the public interest. Similarly, in addition to meeting the technical prerequisites for determining infringement, the circumvention of technological measures also needs to exclude the relevant obstructive reasons stipulated in the Copyright Law,[8] in order to determine whether the circumvention constitutes infringement.
Combined with the above-mentioned case analysis, the technical measures such as security systems and authentication tools adopted by the right holder mainly protect various types of medical equipment system software, maintenance tool software, encrypted files and supporting medical clinical function software in the administrator-level maintenance mode, and the purpose and means of protection are legitimate; Evidence such as the defendant's confession, witness testimony, and WeChat chat records reflect that except for authorized technical maintenance personnel who can only read the core documents after identity authentication and realize the maintenance of medical equipment, ordinary users and even professional and technical maintenance personnel cannot avoid or crack the technical measures set by the right holder, and must use the pirated "dongle" and other cracking tools provided by the defendant to browse and use the core files, so the technical measures taken by the right holder in this case are effective. In addition, the fact that the defendant provided pirated "dongles" to others for the purpose of obtaining illegal benefits did not fall within the cause of infringement under the Copyright Law, so the circumvention of technical measures carried out by the defendant was a copyright infringement from a civil point of view.
(3) The necessity of criminalizing indirect circumvention of technological measures
1. Classification criteria for direct and indirect evasion
Articles 18 and 19 of the Data Protection Regulations respectively stipulate two types of circumvention of technological measures: one is the act of deliberately avoiding or destroying the technical measures, which is directly aimed at the technical measures themselves; The other is the deliberate manufacture, import, or provision to others of devices or components that are mainly used to circumvent or destroy technical measures, and this type of conduct refers to the act of preparing conditions and providing assistance for the implementation of the circumvention before the evasion of the act occurs. Based on the above-mentioned provisions, the theoretical community divides the evasive behaviors into direct evasive behaviors and indirect evasion behaviors according to whether the evasive behaviors directly use the technical measures themselves as the classification criteria. [9] Based on the above case analysis, in the process of selling pirated "dongles", the defendant mainly provided "dongles", an identity verification device, to others to obtain illegal benefits, and the others avoided the security protection system of the right holder by running unauthorized cracked drivers, thereby entering the operation background of the medical equipment, and the defendant's behavior was an indirect circumvention of technical measures.
2. Indirect circumvention of technical measures ≠ reproduction and distribution
Prior to the revision of the Amendment (11) to the Criminal Law of the People's Republic of China (hereinafter referred to as the "Amendment (11) to the Criminal Law"), in the judicial practice of criminal protection of copyright, there were cases in which the indirect circumvention of technical measures by manufacturing, importing, providing devices or components that circumvent or cracking technical measures was deemed to be "reproduction and distribution" or "distribution", and criminal liability was pursued for the crime of "copyright infringement" or "sale of infringing copies". Article 217 (1) of the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law") of 1997 stipulates that for the purpose of making profits, the reproduction and distribution of literary works without the permission of the copyright owner shall be made...... It can be seen that if the crime of copyright infringement is constituted because there is no "reproduction and distribution", the object of reproduction and distribution is the work and not anything else, and the avoidance, cracking programs, tools, etc., designed for technical measures do not themselves reproduce the work of the right holder, nor are they copies of the work of the right holder. There was once a view that the manufacture and provision of cracking programs and tools can make it possible for the public to access or obtain the work, which is an act of distribution in the sense of criminal law. In the author's opinion, the provisions on copyright infringement in the Criminal Law still need to be examined and analyzed in conjunction with the requirements of the relevant infringement provisions in the Copyright Law. Article 53 of the Copyright Law divides the act of reproducing and distributing a work and the act of circumventing technological measures into two different types of infringement, that is, the act of circumventing technological measures is not an act of reproducing and distributing a work, and the two acts cannot be confused.
3. Understanding of the circumstances of item (6) of the crime of copyright infringement in the Criminal Law Amendment (11).
The Amendment (11) to the Criminal Law, which came into effect in 2021, added a new circumstance to Article 217 of the Criminal Law in 1997 that may constitute the crime of copyright infringement - "deliberately avoiding or destroying the technical measures taken by the right holder to protect copyright or copyright-related rights for its works, audio and video recordings, etc., without the permission of the copyright owner", which may constitute the crime of copyright infringement in item (1) - "reproduction and distribution without the permission of the copyright owner". and disseminating to the public through information networks their written works, music, fine arts, audio-visual works, computer software, and other works as prescribed by laws and administrative regulations......", which is a juxtaposition relationship. Amendment (11) to the Criminal Law separately lists the circumvention of technological measures as a crime of copyright infringement, which is different from the acts of "reproduction and distribution" and "dissemination through information networks", and to a certain extent, provides a legislative basis for clarifying the regulatory path and unifying the application of crimes.
However, as to the understanding of the deliberate circumvention and destruction of technical measures provided for in item (6), there is a view that only direct circumvention should be included in the scope of protection of the criminal law, and indirect circumvention should be excluded. The amendment to the content of the chapter on intellectual property infringement crimes in the Criminal Law Amendment (11) is not only to make up for the shortcomings of the provisions themselves in the process of theoretical and practical operation, but also to comply with the revision of the precedent law "Copyright Law", so as to better realize the connection between criminal and civil law through the unification of legislative links. Articles 18 and 19 of the Information Protection Regulations and Article 53 of the Copyright Law[10] both include indirect circumvention within the scope of infringement regulated by law, and the Criminal Law, as a follow-up safeguard law, should be relatively consistent with the provisions of the precedent law. From the perspective of substantive harm, indirect circumvention may cause more serious and wider substantive harm than simple direct avoidance. For example, in the case of "Wang's copyright infringement" previously heard by the Shanghai No. 3 Intermediate People's Court, video websites such as Youku and iQiyi set up certain technical protection measures for audiovisual works such as movies, television, and variety shows on the websites, so as to prevent others from browsing or illegally copying and disseminating the content of the works without permission. Optimize the parsing program algorithm to bypass the technical protection measures set by genuine websites, so that criminals who directly commit infringement can obtain the real playback address of online videos through parsing tools, so as to hotlink or download related audiovisual works. The judgment of this case was formed before the Amendment (11) to the Criminal Law, and the court ruled that Wang was an accomplice to the crime of copyright infringement on the basis that Wang clearly knew that the webmaster of the pirated website had not obtained the authorization of the copyright owner, but still provided technical means to analyze the real playback address of the linked video to help the webmaster of the pirated website avoid or destroy the link protection of the genuine website, so as to obtain illegal gains. Due to the technical threshold of technical measures, the webmaster of the pirated website needs to rely to a large extent on the analysis tools produced and provided by Wang, so as to achieve the purpose of hotlinking and illegal copying and dissemination. It becomes a key part of the consequences of copyright infringement. Accordingly, from the assessment of the social harm caused by direct and indirect evasion, indirect circumvention should also be included in the scope of acts regulated by item (6) of the Criminal Law Amendment (11).
Fourth, the significance
Relying on the popularity and popularity of the Internet, the indirect circumvention of technological measures expands the degree and breadth of harm caused by copyright infringement, and although the perpetrator does not directly commit the infringement on the surface, the "one-to-many" behavior essentially causes a highly dangerous state of illegal infringement of copyright, which can easily be transformed into real harmful consequences. With the increasing development of modern medical technology, the safety, accuracy and reliability of medical equipment are related to the health and life safety of the people. The pirated "dongle" produced and provided by the defendant Liu Changsheng has no expiration date and contains a wide range of permissions, allowing them to enter the background of medical equipment such as ultrasound, magnetic resonance, CT, and X-ray without restrictions, view maintenance logs, and implement software installation, upgrading, deletion and other operations. Software leads to the unstable operation of medical equipment, abnormal background data, and increased equipment failure rate, which is quite harmful to society.
The case of defendants Liu Changsheng and Liu Man's crime of copyright infringement was the first case in which the crime of copyright infringement was determined to constitute the crime of copyright infringement under the circumstances (6) added by Article 217 of Article 217 after the implementation of the Criminal Law Amendment (11), which not only reflects the seamless connection between the Criminal Law and the revision of the Copyright Law, but also realizes the systematic protection of copyright under the Criminal Law. It also provides a legal basis and regulatory path for the criminalization of indirect evasion of manufacturing, importing, and providing intentional circumvention and destruction of technical measures.
Source: Journal of Copyright Theory and Practice
编辑：Sharon