The Criminal Law Regulation On The Behavior Of Providing Deep Links On Websites

With the development of Internet communication technology,copyright infringement in the network has also changed.In cyberspace,the most harmful act to copyright has changed from the upload of infringing works to the illegal dissemination of others' works.In the face of this change,the Copyright Law added the right of information network communication to protect the legitimate rights of the obligee.However,the criminal law is still in the era of printing,and there is no special provision for information network communication.This makes it difficult to apply the relevant provisions of the crime of infringing copyright in the network environment.How to regulate the deep links provided by websites to network users is a controversial issue both in theory and practice.On the one hand,deep link is an indispensable part of normal network life;on the other hand,it can seriously damage the interests of copyright holders in the network.Therefore,the law,especially the criminal law,should pay special attention to the balance between the protection of legal rights and the normal development of technology when regulating the act of providing deep links.This paper is divided into four parts.The first chapter introduces the basic situation of deep link.Starting from the concept of deep link,this paper analyzes the importance of deep link technology inreproducing today's network environment and its harm.In addition,this chapter also introduces domestic and foreign judicial cases and scholars' views,and raises questions.The second chapter of this paper discusses the premise of the crime of providing deep link into a website,that is,the act of providing deep link in a website can constitute the crime of infringing copyright.It is argued that judicial interpretation has neither the right nor the right to interpret "information network communication behavior" as "distribution" in the crime of infringing copyright.Therefore,it should not be considered as a crime of infringing copyright to provide in-depth links.In this regard,this paper argues that China's law does not clearly distinguish between "issuance" and "information network communication".The interpretation of "information network communication" as "distribution" in the crime of infringing copyright does not exceed the meaning of the criminal law text,nor will it destroy the unity of the legal order of our country.Therefore,in the current environment,according to the judicial interpretation,it is a reasonable and legal necessary practice to identify the act of providing deep links to websites that seriously infringe on others' copyright as the crime of infringing copyright.The third chapter analyzes the theoretical basis of the conviction of the deep link behavior.In theory,there are two main points of view,one is the theory of accomplice and the other is the theory of substantiality.According to the theory of accomplice's perpetration,the author holds that it is not an act of information network communication,but a helping act of another act of information network communication.In the case of difficulties in direct conviction,it is advisable to identify the act of help as the principal offender of the crime of infringing copyright by identifying it as the act of implementation.According to the view of convicting the act of setting up a chain of websites according to the "substantial presentation standard",it is believed that when a linked website presents other people's works substantially through deep links,it should be regarded as a content provider.The act of setting up a chain is equivalent to the act of direct information network communication.The serious infringement of others' copyright constitutes the principaloffence of the crime of infringing copyright.Through the analysis of these two theories,this paper holds that the so-called "accomplice perpetration" actually refers to the perpetration of a helper.It is not the interpretation method of criminal law but the legislation method of criminal law.In the absence of any provisions in criminal legislation,it is a violation of the principle of legality to interpret the act of helping directly as the act of executing in the name of interpretation.In addition,the theory of accomplice's perpetration does not distinguish between the legitimate behavior and criminal behavior in the behavior of providing deep links on the website,which has the problem of too large scope of attack.However,the "substantial presentation standard" takes the effect of the behavior rather than the behavior itself as the basis to judge the nature of the behavior,so it is difficult to make a convincing discussion on the nature of the deep link behavior provided by the website.And the "substantial presentation standard" only demonstrates why some websites provide deep links which can constitute the crime of infringing copyright,and also does not distinguish between the legitimate behavior and criminal behavior,there is a problem of too large scope of attack.In the fourth chapter,we propose that we should convict the behavior of setting up a chain of websites according to the "functional substitution standard".This paper holds that two problems should be paid attention to in the criminal regulation of the behavior of providing deep links on websites: one is to determine the nature of the behavior of providing deep links on websites;the other is to distinguish the proper behavior and criminal behavior in the behavior of providing deep links on websites.For the nature of the behavior of providing deep links,this paper holds that the essential characteristic of information network communication behavior is to form a new "communication source".It is an information network communication behavior that the website provides deep links that can directly display the linked content on the website,forming a new "communication source".The deep link provided by the website to jump to the secondary pages of other websites has not formed a new "communication source",not an information network communication behavior.For how to distinguish the proper behavior and criminal behavior in the behavior ofproviding deep links,this paper puts forward the "functional alternative standard".Without the permission of the copyright owner,if the website replaces the linked website in whole or in part in function after providing the deep link,the act of setting up the chain is the act of infringing the copyright of others,and the serious case may constitute the crime of infringing the copyright.If the website fails to replace the linked website in function after providing in-depth links,its dissemination content is not the work of copyright enjoyed by others,and generally should not be regarded as a criminal act.According to the standard of functional substitution,the act of setting up links on websites has formed a new source of communication,which is the act of information network communication and can be regarded as the principal offender of the crime of infringing copyright.However,the act of setting up a chain for a website that does not meet the "functional substitution standard" does not generally constitute a crime.Only when the link object is the infringing website which constitutes the crime of infringing copyright,and there is sufficient evidence to prove that the chain website has the intention of helping the infringed website to infringe others' copyright,can the producers and managers of the chain website constitute the crime of infringing copyright.