| The deep link is a special kind of link,which is different from the shallow link generally recognized by the public.The deep link directly links to the work resources on other websites.When the user clicks the work link,the content of the work will be directly displayed in the link setting web page,and the website domain name will not change,so the user simply cannot distinguish the true source of the work.The original intention of the invention of deep link is to promote the integration of network information,effectively collect network resources in the way of aggregation,and realize the deep extension of the resource chain through layer by layer links,so as to provide convenience for users to obtain information and break the information barrier between different websites.When the user clicks on the deep link,the content of the work is displayed directly in the linked web page,and the domain name of the website will not change,so the user can not distinguish the true source of the work at all.The characteristics of deep links,which directly face to the works themselves and conceal the true source of works in its websites,have caused a series of legal difficulties.First of all,it is difficult to identify the nature of its behavior.The difficulty lies in whether the deep link behavior belongs to the legal provisions of "using the network to disseminate".In the judicial practice of civil cases of infringement of copyright,the server standard is generally used to determine the behavior of deep link.From this standard,deep link behavior can not be identified as a dissemination behavior.However,in the judicial practice of criminal cases of copyright infringement,standards such as user perception standards and substantial substitution standards are often used,which leads to confusion in understanding and academic debate.Secondly,the criminal law stipulates three types of acts of copyright infringement:copying,issuing and using the network to disseminate.The criminal law contradicts the copyright law in determining the nature of the acts,and the criminal law and related judicial interpretations are not clear enough on the inclusion relationship of the three acts of copyright infringement.There are also disputes on the path of criminalization of conviction for copyright infringement crime.At present,there are mainly paths of conviction:As a principal offender of copyright infringement;As an accomplice in copyright infringement;Contributory offender is made a principal offender by law;As an accomplice in other crimes.In view of the specific problems faced by the deep link behavior,we should try to change the dominant position of the user perception standard,because this standard has a strong subjective color.We should support the server standard as the main behavior identification standard.At the same time,we can appropriately adopt user standards and Presentation standard,but we should combine these two standards with the specific performance of the subjective and objective aspects of specific crimes,which is conducive to providing a basis for combating serious crimes.For the problems in the path of criminalization this paper puts forward the path analysis of criminalization based on the determination of criminal acts.In the case that the crime of infringing copyright is a separate crime,the usual path of the crime of infringing copyright can still be followed.In the case of joint crime,through two levels of judgment ① Whether the criminal act conforms to the constitutive requirements of other crimes or the crime of infringing copyright.In the case that the specific criminal act does not involve other accusation,further consideration is required.②Belong to "thorough act of implement","thorough act of accessory","has the nature of executor crimes and helping crimes".This can be compatible with the current path of incrimination,but also has a certain forward-looking.Mainly because this paper proposes the concept of "the nature of executor crimes and helping crimes".Although this concept has not been applied in the current judicial practice,it will inevitably become a path setting to adapt to the operation which trend to making some cyber crimes become a kind of mild crimes and even innocent acts.This paper also discusses the details of the analysis method of the path of incrimination proposed in this paper,it is also a supplement and explanation to the details of the analysis method of incrimination path proposed in this paper.It mainly includes the identification of "knowing",the application category of "auxiliary criminal act as a criminal act",and the statement of supporting the theory of accomplice subordination. |
