The Evaluation Of Deep Hyperlinks By Criminal Law

With the development of Internet, network torts and network crimes are showing a high trend with various forms. Deep hyperlinks presenting in the eyes of people in a whole new look. Due the technique of deep hyperlinks are applied extensively, torts caused by deep hyperlinks are more and more popular. While there are debates when it comes to how to define the nature of deep hyperlinks. On the civil law,there are debates on whether deep hyperlinks are the behavior of communication information through network and violate information network spreading right directly. There exist “the sever standard ”and “the user standard ”When identifying whether deep hyperlinks constitute torts, different standards lead to different solutions. On the criminal law, one view is that the scope of punishment of the crime of infringement of copyright should be expanded, the increasing worsening network copyright infringement behavior should be included in the crime of copyright infringement. This article suggests that the protection of intellectual property rights from criminal law should be moderate. At this stage, criminal law should be prudent when intervening in deep hyperlinks. This paper is divided into three parts.The first chapter mainly presents the meaning, feature and social property of deep hyperlinks. As one form of hyperlinks, deep hyperlinks play a very important role in the Internet. But they can become a hotbed of torts and crimes when they are misused.The second chapter focuses on the judicial dilemma of deep hyperlinks from two sections. The first section presents the copyright that deep hyperlinks infringe, according to the classification of moral rights of copyright and property rights, conclusion comes that deep hyperlinks infringe information network spreading right. Then, presenting deep hyperlinks can constitute unfair competition from the angle of economic law.And the two standards that deep hyperlinks constitute infringement--“the sever standard” and “the user standard”. This article suggests that identify the nature of deep hyperlinks we should insist “the sever standard”, which means deep hyperlinks is not the behavior of communication information through network. The second section analyses the criminal attribute of deep hyperlinks, which leads to a conclusion that deep hyperlinks may constitute the accessory of the crime of copyright infringement.There are disputes in the criminalization of deep hyperlinks,some people insist that because of the strong damage of the deep hyperlinks,they should be punished in the name of criminal law;while the article agree another view,which is criminal law should be modest when treating the problem.The third chapter analyses deep hyperlinks from the angle of criminal law. The first section analyses the crime path from joint crime and separate crime, as it is hard to identify the joint intent between the setting up link websites and the be linked websites, they constitute the general joint crime is hard to improve. When the setting up link websites have one-sided help intention subjectively and set up deep hyperlinks objectively, and then the be linked websites commit the crime of copyright infringement, the setting up link websites may commit the one-sided accomplice of the crime of copyright infringement. Lastly, judicial explanation treat the behavior that “disseminate other people’s work from information network” as “replication, release behavior”,while laws did not regulate whether the behavior that “disseminate other people’s work from information network” is the “the behavior of communication information through network ”or not in copyright law, so only from the level of real-ran, cannot the deep hyperlinks commit the crime of copyright infringement separately. Then putting forward an argument that the criminalization of deep hyperlinks should be prudent in the current criminal law. The reasons are as follows:firstly,because of the modesty of criminal law,criminal law should not intervene in deep hyperlinks when former laws can evaluate the behavior; Secondly, as the criminal law did not protect the information network spreading right clearly, only judicial explanation treated the behavior that “disseminate other people’s work from information network” as “replication,release behavior” in the crime of copyright infringement, this judicial explanation was criticized for analogy interpretation, so it cannot be applied easily. As the deep hyperlinks can only constitute infringement of the network spread’s right indirectly, we better not convict deep hyperlinks of a crime according to the judicial explanation.