深度链接行为的刑法规制研究 - 以侵犯著作权罪为视角 -

Deep linking, as a neutral network technology, means that the linker sets up the link through a specific paging address, so that the URL of the linked object is embedded in the linking website or web page, which also means that when the user clicks on the deep link on the linking website, he or she can directly skip the linked website, so as to obtain the content of the linked website in the linking website. Deep linking behavior in providing visitors with convenient access channels at the same time may also violate the legitimate rights and interests of copyright owners, the normal order of the Internet caused by interference. In the field of criminal justice, the crime of copyright infringement is the main legal basis for regulating deep-linking behavior, but since there are no specific provisions on deep-linking in our laws, it leads to a lot of controversy in practice over the behavioral characterization of deep-linking, the issue of incrimination and the specific path of incrimination. In order to solve this dilemma, first of all, the technical attributes and application mode of deep-linking behavior are comprehensively grasped, and the necessity of criminal regulation of deep-linking behavior is sorted out, based on which the legitimacy of regulation of copyright infringement is specifically analyzed, and the behavior of deep-linking behavior is characterized as the behavior of dissemination of information network. Through analyzing judicial cases, the illegal use of deep-linking behaviors are explored as separate crimes and joint crimes, and in the separate crimes of copyright infringement, there are mainly different determinations of the legal nature of deep-linking behaviors, difficulties in determining “without the permission of the right owner”. “Based on this, China should unify the legal nature of deep-linking so as to make the standard of adjudication consistent, add the element of implied license to cope with the difficulty of determining the will of the copyright owner under the Internet environment. In the joint crime of copyright infringement, which mainly involves setting up deep links to illegal websites, most of the current theoretical and practical circles start from the perspective of helping offenders, and regulate this type of crime from the perspectives of general helping offenders, one-sided accomplices, and the criminalization of helping behaviors, but all of them are insufficiently regulated, based on which it is justified to regulate the act of deep linking as a positive offense from a new perspective, and based on this, it is justified to follow the theory of joint behaviors to solve the issue of joint offenders. Based on this, it is justified to regulate deep-linking behavior as a positive offense from a new perspective, and on the basis of this, to follow the theory of common theory of behavior to solve the difficult problem of identifying the criminal intent contact of joint offenders as well as to clarify the scope of identifying the ”knowledge“ of the linker of the illegal website. In the end, through the reasonable regulation of deep linking behavior, a clear path can be provided for the regulation of deep linking behavior by the crime of copyright infringement, with a view to improving the protection of copyright holders and the Internet.