The Criminal Qualitation Of Deep Linking Behavior

In recent years, with the rapid development of the network link technology, illegal and criminal cases caused by linking behavior show frequent situation and trigger the extensive attention of the public, of which the most typical is a case of copyright crime caused by Zhang in ten innovative intellectual property cases in Chinese courts in 2014 issued by Supreme People’s Court. In the current criminal judicial practice, whether or not it is necessary to incorporate the behavior of disseminating of information to the public through the information network into the field of crime is still controversial in the judicial practice. In addition, with the development and progress of society, there will be new means of crime or new problems, different understanding of the judge in the trial of the cases, will lead to inconsistent results of deep linking behavior in the specific case. Therefore, this text in line with the principle of theoretical servicing practice, based on the theory combined with the specific issues arising in judicial practice, put forward personal view, in order to make our own meager strength for the construction of the rule of law in our country.In addition to introduction, the article is divided into four parts:The first part is about the analysis of the legal nature of the deep linking behavior in the perspective of copyright law. In this paper, the definition of deep links, the basic model of the deep links and the legal nature of the deep linking behavior in the perspective of copyright law are discussed. Firstly, the text introduces the concept of deep linking, through the web page address setting the link, this link does not directly pointed to the home page of the website, the chain instead of bypassing is the home page of the website, the chain pointing directly to the behavior of the deep web. After in-depth analysis of the basic model of deep linking behavior, the article argues that deep linking behavior qualitative inevitably involves the link object of discussion, if the link to the object itself belongs to the object of criminal law regulation, regardless of is general links or deep links, constitutes a crime. This is decided by the criminal law norms and behavior of objects, rather than deep linking behavior itself caused. Therefore, the main object of this paper is the deep link behavior of non criminal object. For the legal nature of the deep linking behavior in the perspective of copyright law, the article argues that in the process of deep linking, the temporary copy does not exist considerable extent as copy, rubbing, audio, video and other permanent copy means and therefore does not belong to copies of copyright law, and there is no sense of distribution behavior in criminal law. Therefore, the deep linking behavior does not belong to the duplication or distribution behavior. According to article 10 item 12 in copyright law and article 3 of the Supreme People’s Court on the trial against the right to network dissemination of information civil dispute cases the law applicable to a number of issues provisions(hereinafter referred to as the provisions for the infringement of the right of communication of information on network problems), the works uploaded to a server is open to the public, so that the public can in the selected time and place for the login server, to access to the works by watching online or download. Therefore, upload behavior undoubtedly belongs to network communication behavior. The key to judge deep linking behavior whether to belong to the information network dissemination behavior, is not whether the scope of the audience the ultimate changes, but in whether people not permission from the works of the communication process obtained the direct and substantive interest. Therefore, the deep linking behavior belongs to the information network communication behavior.The second part is the analysis of the criminal nature of deep linking behavior. Firstly, the paper introduce the dispute in criminal qualitative of deep linking behavior and clear different views on whether or not deep linking behavior constitute a crime in theoretical circles. After the analysis of how to deal with deep linking behavior in judicial practice, through the judgment of the above two parts, we come to the conclusion that: as for the criminal qualitation of deep linking behavior, the key lies in that as a network communication behavior, how to define the criminal nature of deep linking behavior under the existing criminal law norms. Next, the article has carried on the explanation to article 217 of criminal law. The article believes that the subjective aspect of the crime of copyright infringement is intentional, negligence can not constitute the crime. In addition, the establishment of the crime of copyright infringement also requires the actor to have a profit for the purpose of the subjective state of mind. Without the copyright license is a prerequisite for the establishment of the crime of infringement of copyright, so be sure to make an accurate and appropriate definition. With regard to the understanding of reproducing and distributing in the crime of copyright infringement, either from the provisions of the pre-law, the relevant judicial interpretation and judicial practice, we can the conclusion that reproducing and distributing contains duplication behavior and distribution behavior and the behavior of both duplication and distribution.The third part is the criminal qualitation of deep linking behavior. The article believes that, first of all, both criminal legislation and judicial interpretation must strictly follow the principle of legality. In the process of criminal legislation and implementation of judicial interpretation, whether there is contrary to the principle of legality, of which the most important criterion is that, legislative provisions and judicial interpretations of whether contrary to the meaning of the words of criminal law, which is contrary to the national forecast possibility. But the meaning of information network dissemination has exceeded the range of duplication and distribution, in violation of the requirements of the principle of legality, no matter how high the necessity of criminal penalties, are not allowed by the criminal law. Secondly, if you want to bring information network dissemination behavior into duplication and distribution behavior through the form of legal norms, there is only one kind of means, namely legal fiction. Therefore, the article 11, paragraph 3 of the interpretation of criminal cases of infringement of intellectual property rights is essentially the legal fiction set by the judiciary. However, legal fiction belongs to the legislative activities, and the subject of the exercise of legal qualification is only the legislature. Therefore, the essence of the interpretation is to the real judicial interpretation of legislation are ultra vires explain. Finally, criminal law has second illegal property, and intellectual property protection should be within the scope of the intellectual property law. But the invasion interpretation of criminal cases of intellectual property rights interpreted information network dissemination behavior as duplicating and distributing behavior, the originally should belong to and to replicate the behavior of the relationship, release behavior and information network dissemination behavior explain for inclusion relation, is against the provisions of the pre law, also in violation of the criminal law of quadratic illegality theory.The fourth part is the theory of the rest. As the essential principle of the criminal law, although the deep linking behavior has a considerable punishability with the traditional duplication and distribution behavior, the necessity of criminal punishment can not be the reason for the class to be pushed into the justification of the crime. The judiciary will seriously harm the social behavior of the referee as a crime, we must strictly follow the existing criminal law norms. Although with the lack of relevant norms in current legislation, even though the act has serious harmfulness to the society, the judiciary can not be attributed to the crime by analogy. To put it bluntly, the social harmfulness of behavior is the basis to confirm that whether the behavior should be included in the category of criminal law and the criminal illegality is identified whether an act constitutes a crime. At the same time, it should be noted that there are many similar to the article 11, paragraph 3 of the interpretation of criminal cases of infringement of intellectual property rights in China. The judiciary is trying to set a property specification of legal fiction through the judicial interpretation, this also means that judicial authority to exercise the legislative power. However, the rationality and necessity of the existence of judicial interpretation can not be proved to be the legitimacy and legitimacy of the legislation. Therefore, we should firmly deny the legal validity of the interpretation of the nature of the interpretation of the analogy. And how to regulate the deep linking behavior, in the author’s opinion, the legislature should be timely in the legislation to respond to, by way of legislation will broadcast behavior into the scope of regulation of the crime of article 217 of criminal law to solve the problem.