jakiro
Source: Mankun Blockchain Law
introduction:
As the title.This is a question a game developer Xiao A consulted lawyer Shao a few days ago.
Because of the difficulty in applying for a domestic game version number, their team is preparing to put the game on Steam, so they come to consult lawyers for legal issues that need to be paid attention to when going overseas for the game.Originally, the chat was very happy in the early stage, and talked about the copyright protection of the game, personal information security protection, game grading, and the development team was also considering the transformation to build blockchain games.
But then Xiao A suddenly changed his mind, “Lawyer Shao, if you develop a butter, how should you grasp the scale of the butter? For example, there is a beautiful woman taking a bath in my game screen, and then this beautiful woman takes off her clothes.Which level will be considered pornographic? Or can you not engage in pornographic games? Then how much is it illegal to rub the edges?
I was speechless when I heard this.
There is no pornographic factor involved in the game developed by Xiao A’s team, but if you can ask this question, you may have this plan in the future. Can the game go overseas and let yourself go?I searched it online and I guess there are quite a few friends who are troubled by this problem, so let’s talk about this topic today.
01Regardless of whether the game goes overseas or not, our judicial organs have criminal jurisdiction
Make the point!This is what game dealers need to know first.
In our country’s criminal law, local jurisdiction and personal jurisdiction are stipulated regarding criminal jurisdiction.Territory jurisdiction means that as long as the criminal act or result occurs in our country’s field, our country enjoys jurisdiction; personal jurisdiction means that as long as we are Chinese and commit crimes outside our field, our country also enjoys jurisdiction.Therefore, as long as it is a Chinese who commits a crime, or the crime or the result is in China, our country has the right to take charge.
The relevant criminal charges in the Criminal Law include: the crime of spreading obscene materials; the crime of producing, copying, publishing, selling, and spreading obscene materials for profit; the crime of organizing obscene performances, etc.
If the pornographic level of the game still fails to meet the criminal penalties, according to the “Interim Provisions on Internet Culture Management” and “Regulations on Online Publishing Service Management” and other laws, there are crimes that promote obscene, pornography, gambling, violence or instigation of crimes in a game.Those who endanger social morality or excellent national cultural traditions will be fined, suspended business, revoked licenses, closure of websites, and other administrative penalties.However, if it is a game operated overseas, it is not subject to the administrative regulations of our country..However, we must still abide by relevant local laws and regulations overseas. After all, the local authorities can still manage it.
02How should we grasp the scale of butter?
1. What is the difference between “obscene” vs. “pornography”?
We need to clarify two concepts: “obscene” and “pornography”.Different concepts vary greatly!
If it is considered a pornographic item, even if it makes a profit of millions, there is no criminal penalties. If it is considered an obscene item, it can be sentenced to life imprisonment..So, what is “obscene material”?What is a “pornographic item”?
According to the following provisions, it can be concluded that pornographic content does not necessarily mean obscene materials, and obscene materials must contain pornographic content.
Article 367 of the Criminal Law
The first paragraph: The obscene materials referred to in this law refer to books, videos, videos, videos, audio tapes, pictures and other obscene materials that specifically describe sexual behavior or explicitly promote pornography;
Article 3: Literature and artistic works containing pornographic content that are not considered obscene materials.
According to the following provisions, it can be concluded that if the overall content contains the content listed in (a) to (seven) and lacks artistic or scientific value, it is an obscene material; if the overall content is not obscene (i.e., partial obscene), andThose who lack artistic or scientific value are pornographic items.
Interim Provisions on the Determination of Obscene and Pornographic Publications
The second obscene publication refers to a publication that promotes obscene behavior as a whole, has one of the following contents, provokes people’s sexual desires, and is sufficient to lead to the corruption and degeneration of ordinary people, but has no artistic or scientific value:
(1) Describe sexual behavior, sexual intercourse and psychological feelings obscenely;
(2) Openly promote the erotic and lewd image;
(III) Describe or impart sexual skills obscenely;
(IV) Specific description of the means, process or details of incest, rape or other sexual crimes is sufficient to induce the crime;
(5) Describe the sexual behavior of young people and children in detail;
(VI) Describe obscenely and specifically the sexual behavior of homosexuals or other sexual perverts, or specifically describe violent, abused, and insulting behaviors related to sexual perverts;
(7) Other obscene descriptions of sexual behavior that ordinary people cannot tolerate.
Article 3 Pornographic publications refer to the fact that they are not obscene as a whole, but some of them have the contents stipulated in Articles 2 (1) to (7), which are toxic to the physical and mental health of ordinary people, especially minors, and lacksPublications of artistic or scientific value.
How to accurately grasp the scale?Unfortunately, judging from the above legal provisions in our country, we cannot answer the question proposed by consultant Xiao A at the beginning of the article:How many layers of a beauty’s changing clothes is considered pornographic, and how many layers of a beauty can take off her is considered obscene?If you really want to know, you can only make the game first and let comrades from the public security or press and publishing department do an appraisal for you.You will receive a formal “Obsolute Material Review and Appraisal”,Free.But it is still not recommended to try it seriously, because at this time people are already in the detention center.
Although it is impossible to measure accurately, it is actually not difficult. It is enough to think and feel with the understanding of ordinary people.Because the review standards for appraisers are also stipulated in items (1) to (7) above.
2. Is it OK to just use the edges?
Some game dealers may be unwilling to give up and are unwilling to give up.Rely on the “compliance standards” you understand, do a mistake.However, according to the law, the standard for obscene materials does not use “whether the point is leaked or the organ is leaked.”Content such as “pat the edge” and “soft pornography” still have a certain degree of risk and are considered “obscene materials” with the meaning of criminal law.
“Decision of the Standing Committee of the National People’s Congress on Punishing Criminals Who Smuggled, Made, Trafficked, and Disseminated Obscene Materials (Amendment 2009)”
Article 8 The obscene materials referred to in this decision refer to books, videos, videos, videos, audio tapes, pictures and other obscene materials that specifically describe sexual behavior or explicitly promote pornography.
03How can I defend myself if I was arrested for developing butter?
The entire text of this article is the focus.Now comes the most important defense stage!
1. Online games are considered “obscene materials” and there is no explicit legal provision
Judging from the existing legal provisions,Online games are not included in the concept of obscene materials.And in the current judicial practice,There are no relevant cases that directly characterize online games as obscene materials.
According to the provisions of Article 1, Paragraph 2 of Fashi [2010] No. 3, obscene materials specifically refer to: movies, performances, animations and other video files; audio files; electronic publications, pictures, articles; electronic information.According to Article 9 of Fashi [2004] No. 11, the “other obscene materials” stipulated in the first paragraph of Article 367 of the Criminal Law, including video files and audio files that specifically depict sexual behavior or explicitly promote pornography and sexual sexuality.Electronic publications, pictures, articles, short messages and other electronic information of the Internet, mobile communication terminals and voice station voice information.
2. Pornographic content should be “split”
Whether from the perspective of legal provisions or current judicial practice, online games themselves cannot be identified as obscene materials as a whole.However, pornography-related games are still regulated by the criminal law.This is because some game content can be extracted as a sample material, such as some character shapes, some situations, game CG, etc. (in other words,Games are just a carrier form of obscene materials in the meaning of criminal law).However, the other scenes and pictures should not be considered pornographic content.
Therefore, online games cannot be directly defined as obscene materials. Therefore, if the content of the game is determined to be pornographic and constitutes a criminal offense, the judicial authorities need to extract the pornographic content and appraise it as evidence in the case.If the content of the inspection material belongs to the same scene, the number of obscene videos should be considered as a single video file. Otherwise, if the content of the same scene is divided into dozens or even hundreds, the sentence of the perpetrator may be less than 3 years.It has become more than 10 years, which is extremely ridiculous.
3. Determination of illegal income
As mentioned above, the yellow color identification should be “split”.Therefore, profits generated by scenes and screen content other than “obscene” should not be considered as illegal income of the perpetrator.In some games, obscene content may be paid content of the game itself, and players need to set up a reward mechanism to unlock or pay further to watch. At this time, it is extremely important to distinguish between obscene scenes and non-obscene scenes and profits from the perpetrators in situations where the person makes a profit is extremelyImportantly, it will directly affect the specific sentence.Taking the crime of spreading obscene materials for profit as an example, if the illegal income is 10,000 yuan, it can be sentenced to fixed-term imprisonment of not more than 3 years.
The above are only the key points of defense in the general direction. In practice, it is necessary to combine the case situation and evidence in the case to achieve it.Effective defense.
04Written at the end
For game dealers, no matter whether they are released in China or when the game goes overseas, they must not let themselves go, and they must keep in mind the core socialist values in mind no matter where they are.
