is the coral judgment light or wrong?

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On the Internet, the court today, March 20, 2008, made a verdict on Shoufu, a coral author. According to the verdict, the Coral author Shoufu guilty of infringement of copyright, sentenced to three years imprisonment, and fined 1.2 million yuan. So far, the author has not seen the case of the verdict.

At first glance, the author of the polyp was found guilty, though it was only one trial judgment that had not yet come into force, but it was disappointing to me that Shoufu was not guilty. However, in contrast to the relevant laws of our country carefully considered, the outcome of this case is the minimum sentence within the statutory sentencing range. Although this first result is still unacceptable, but can win such a first verdict, the numerous support Shoufu news media and Netizen's appeal still played a big role.

Looking at the Coral case, according to the polyp author Shoufu's indictment, its illegal income more than million, is the law stipulation extremely serious plot minimum limit nearly 10 times times, the Coral website provides the coral QQ the number of downloads, namely copies QQ software's quantity is close to tens of millions, is the criminal law stipulation special serious plot minimum limit " Copy software 2,500 copies "thousands of times times. (See the relevant legal basis and the case indictment at the end of this article) according to common sense, if the "crime" of Shoufu is so serious, that the legal term of imprisonment in 3-7 years, even according to the maximum sentence of 7 years of sentencing is also possible, but the case was only sentenced to 3 years. From this point of view, the court's verdict on the polyps ' authors has been lightly sentenced.

According to the author's experience, if the case does not have such a high media and public attention, the coral author Shoufu at least 5 years, or even a maximum sentence of 7 years of infringement of copyright offences. Although the court of First Instance has Jews from the verdict, the case is "lightly sentenced to a felony". However, the author believes that for such a case, the polyp author clearly does not constitute a crime, so it should be appealed. The reason I have been in the previous several blog articles have been elaborated, interested readers can read my blog on the previous article. The Coral website has said publicly that it will appeal the case. We shall wait and see for the second instance of the case.

The author: yunting Shanghai Zhong Hui law firm Intellectual Property Lawyer MSN & Email:yytboy (@) hotmail.com Tel: 8621-22116000

Legal basis: According to the Supreme People's Court, the Supreme People's Procuratorate on the handling of criminal cases of infringement of intellectual property rights in the specific application of the law of the interpretation of the fifth article of the provisions: ... For the purpose of profit, in the implementation of article No. 217 of the criminal law, one of the infringement of copyright, the amount of illegal income of more than 150,000 yuan, is "a huge amount of illegal income", in one of the following circumstances, belong to "there are other particularly serious circumstances", shall be sentenced to three years or more than seven years of imprisonment and fined:

(a) The amount of illegal business is more than 250,000 yuan;

(b) Reproduction of copies of their written works, music, films, television, video works, computer software and other works without the permission of the copyright owner, together with a total of 5,000 copies (copies);

(iii) Other circumstances of particular seriousness.

And the Supreme People's Procuratorate of the Supreme People's Court last April to explain some issues concerning the specific application of law in criminal cases of infringement of intellectual property (b) The first article also changes the "other serious circumstances" as provided for in the second paragraph of the preceding provision to "the number of replicas is 2,500 copies", "There are other particularly serious circumstances" under article No. 217 of the Penal Code. ”

Indictment

Defendant Shoufu, Male, October 4, 1980 Born, ID number: 35xxxx19801004xxxx, Han, university culture, Fujian province Yunxiao County people, living in Haidian District, Beijing Zhongguancun South Street, No. 5th, Faculty 2. December 20, 2006 because of the infringement of Tencent Technology (Shenzhen) Co., Ltd. (hereinafter referred to as Tencent) Tencent QQ Copyright by the Beijing Haidian District People's Court sentenced to stop the infringement, to the Tencent company apology, compensation for economic loss of 100,000 yuan. Due to infringement of copyright suspicion, on August 16, 2007 by Shenzhen Municipal Public Security Bureau Nanshan branch of criminal detention, for alleged infringement of copyright crime, approved by the Institute, on August 24, 2007 by the Shenzhen Municipal Public Security Bureau Nanshan branch arrested.

This case Shenzhen a public one, the South Nanshan branch of the investigation end, to the accused Shoufu alleged infringement of copyright, in 2007 1 0月 2 3rd to the transfer of the hospital for review and prosecution. After receiving the court, the defendant has been informed that Shoufu has the right to entrust the defender, interrogate the accused Shoufu and examine all the case materials.

Examined by law to ascertain:

From the end of 2005 to January 2007, the accused Shoufu from Tencent's website download Tencent QQ software, without the permission of Tencent company Tencent QQ Software to modify, Tencent QQ software ads, search function to delete, plus display friends IP address function, Install Beijing Zhi Tong Unlimited Technology Co., Ltd. 265 network Technology (Beijing) Co., Ltd., Google (China) Information Technology Co., Ltd. 's business-JK Plug-ins, to the above three companies to advertise software or websites, after the modified software to the name of the coral polyps QQ in their registered "Coral I Room" website (www.coralqq.com, www.soff.net) users to download the illegal benefits. August 16, 2007, the defendant Shoufu in Beijing Chaoyang District Qing Jie Rong Yuan home 4th building x Unit 1x0x room was captured, found in the Coral QQ software notebook computer, China Merchants Bank card (number: 00101317xxxx), Golden Sunflower Card (Card No.: 410062010053XXXX) each one. From the 265 Network Technology (Beijing) Co., Ltd. Wong to Shoufu used in the use of polyps QQ software server hard one. April 2007 2 3rd, the Guangdong Province of forensic computer forensic expertise from the Shoufu website download the Coral QQ software three (IPQQ2007.exe, IPQQ06454.exe, IPTM2006.exe), on September 11, 2007 from the Shoufu of the use of laptops, The server hard drive extracts the Coral QQ installation software each (IPQQ2007.exe, IPQQ0750a.exe). By the China Copyright Protection Center Copyright Appraisal Committee, "Coral Studio" IPQQ2007.exe, IPQQ06454.exe, IPTM2006.exe, IP000750a.exe, IPQQ2007.exe Software is in the Tencent Company's Qq2007betal.exe, Qq2006Standard.exe, Tm2006Spring.exe, Qq2007beta2kbl.exe, IPQQ2007.exe QQ software to be modified. After investigation, from November 2005 to January 2007, Shoufu from Beijing Zhi Tong Unlimited Technology Co., Ltd. charged 15 advertising fees-a total of 1.05 million yuan (70,000 yuan per sum); On February 2, 2007, from 265 Network Technology (Beijing) Co., Ltd. received an advertisement fee of 122822 Yuan.

The evidence of the above facts is as follows:

1. Physical evidence, documentary evidence: The arrest of the public security organs, business license, civil Judgment book, search record, seizure list, list of evidence and photos, China Merchants Bank quick remittance slips, special transfer debit summons, Account record list, savings entrusted transfer Transaction, forwarding Enterprise Inquiry list, defendant identity material, etc. 2. Testimony of witnesses: testimony of witnesses Li Wei, Li, Cai, Zhiqiang, 耿倩, Feng, Li; 3. Statement of victims: statement by the agent of the victim's Zishoming; 4. Confession by the accused; 5. Conclusion: Authentication and inspection report of the computer forensic examination of Guangdong Security certificate, the appraisal report of China Copyright Protection Center.

The court believes that the defendant Shoufu for the purpose of profit, without the permission of the copyright owner, copy the copyright owner's computer software, the amount of illegal income is huge, its behavior violates ((People's Republic of china Penal Code = Belly, Criminal facts clear, the evidence is true, full, should be prosecuted for infringement of copyright In accordance with the provisions of article 141th of the Criminal Procedure Law of the People's Republic of China, the prosecution shall be sentenced according to law.