Recently, a case involving the alleged infringement of copyright by a game private server agent, handled by lawyers He Shunqi and Xu Wei of Beijing Juyou Law Firm, has achieved a significant milestone. The defendant, Li Mou, was released on bail on the 30th day of his detention.
I. Why is the operation of a game private server agent considered a criminal offense?
Li Mou began acting as an agent for a certain game private server and responsible for its promotion this year, introduced by a friend. According to the friend, the game being promoted was an “international server.” The game's graphics, characters, gameplay, and items were identical to those of the official version. Li Mou had a weak understanding of the law and did not verify whether the game was official when becoming an agent. Until the attorneys from our firm met with him, Li Mou was unaware of why he was suspected of copyright infringement.
In China, once a game company completes the development of an online game, it automatically obtains copyright protection. To strengthen copyright protection, companies typically apply to relevant authorities for copyright registration of the online game software. After obtaining copyright, others may not reproduce, distribute, or publicly disseminate the computer software or other works through information networks without the copyright holder's permission.
Private servers for games typically refer to situations where unauthorized developers obtain game source code through illegal channels, create pirated game client software, and then set up private servers for operation. Private server games are not protected by law, not only infringing upon the rights of game developers and operators but also causing players' investments to be lost once the servers are shut down.
According to Article 217(1) of the Criminal Law, anyone who, for profit and without the permission of the copyright holder, reproduces, distributes, or disseminates to the public via information networks literary works, music, art, audiovisual works, computer software, or other works as specified by law or administrative regulations, and whose illicit gains are substantial or involves other serious circumstances, shall be sentenced to fixed-term imprisonment. As a type of computer software, the act of replicating, distributing, or disseminating through information networks the original computer software by the operators and administrators of private servers constitutes an infringement of copyright.
II. Key Points in Handling Criminal Cases Involving Private Servers
In April 2025, the Supreme People's Court and the Supreme People's Procuratorate issued the “Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Intellectual Property Rights Infringement” (hereinafter referred to as the “2025 Interpretation”), which is the latest judicial interpretation on the handling of intellectual property rights criminal cases. The four previous judicial interpretations on this matter were simultaneously abolished. This means that the handling of this case should be guided by the latest judicial interpretation. According to the “2025 Interpretation,” the following points should be carefully reviewed when handling similar cases.
1. Whether the act was committed “without the authorization of the copyright holder”
According to the 2025 Interpretation, if authorization has not been obtained from the copyright holder, or if authorization documents have been forged or altered, or if the scope of authorization has been exceeded, it shall be deemed as “without the permission of the copyright holder” as stipulated in Article 217 of the Criminal Law. Furthermore, according to Article 11 of the “Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Intellectual Property Rights Infringement” (hereinafter referred to as the “2011 Opinions”), " without the copyright holder's permission" generally should be determined based on copyright certification documents issued by the copyright holder or their authorized agent, copyright collective management organizations, or copyright certification institutions designated by the national copyright administrative department, or evidence proving that the publisher or distributor forged, altered authorization documents, or exceeded the scope of authorization, in conjunction with other evidence.
Through the above guiding documents, it can be seen that the evidence for determining “without the permission of the copyright holder” is generally provided by the rights holder. By reviewing the rights holder's authorization documents, it is determined whether the work in question is protected and whether the infringer obtained permission or exceeded the scope of the authorization.
Additionally, in cases involving a large number of works and dispersed rights holders, a presumptive approach may be applied. In such cases, if there is evidence that the works were illegally published, reproduced, or disseminated to the public via information networks, and the infringer cannot provide relevant evidence of obtaining the copyright holder's permission, it may be presumed that the works were used without the copyright holder's permission. Under the presumption model, even if the rights holder does not provide the corresponding authorization documents, it is still possible to presume that the defendant acted without their permission. In such cases, the burden of proof is effectively shifted to the defense, significantly increasing the difficulty of proving innocence. At this point, it is also important to consider whether there is evidence proving that the rights holder has abandoned their copyright, whether the work is protected under China's Copyright Law, and whether the protection period has expired. If such evidence exists, it should be promptly presented to avoid being wrongfully accused.
2. Does the act of setting up and operating a private server constitute “reproduction and distribution” or “dissemination through information networks”?
Prior to the promulgation of the Criminal Law Amendment (XI), the only criminal conduct involving computer software as the object of the crime of copyright infringement was “reproduction and distribution.” In 2004, the Supreme People's Court and the Supreme People's Procuratorate issued the “Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving the Infringement of Intellectual Property Rights,” which stipulated in Article 11, Paragraph 3 that “the act of disseminating others' literary works, music, films, television programs, video recordings, computer software, and other works to the public through information networks shall be deemed as ‘reproduction and distribution’ as stipulated in Article 217 of the Criminal Law,” explicitly incorporating the act of disseminating computer software through information networks into the scope of “reproduction and distribution.”
It was not until 2021 that the Criminal Law Amendment (XI) formally added the behavior pattern of “transmitting to the public through information networks.” However, in practical application, there remain differing opinions among courts regarding whether the operation of private servers constitutes “reproduction and distribution” or “transmission through information networks.”
For example, in the case of Ming Mou et al. for copyright infringement, the defendant Ming Mou knew that “Zhengtu 2” was a private server game but still recruited defendants Liu Moumou and others as subordinate agents to promote the private server game, attract players to register and recharge, and profit from commissions. The Songjiang District People's Court of Shanghai ruled that Ming Mou's actions constituted “reproduction and distribution.”
In the first-instance criminal judgment of the Zhang Mou et al. copyright infringement case, defendants Zhang Moumou, Hu Mou, and Zhang Moumou acted as agents for the “XXX” private server game with the purpose of profit, posting game advertisements in player groups, and handling game currency recharges for players while receiving commissions. The Shanghai Jing'an District People's Court ruled that Zhang Moumou's actions constituted “transmission to the public via information networks.”
According to Article 13 of the 2025 Interpretation, in addition to illicit gains and illegal business volume, the criteria for determining the severity of punishment for “reproduction and distribution” include the number of copies produced. For “dissemination via information networks,” the criteria for determining criminal liability include the number of works disseminated, the number of downloads, the number of clicks on the works, and the number of registered members under a membership-based dissemination model. It is evident that the criteria for determining the severity of punishment for “dissemination via information networks” differ from those for “reproduction and distribution.” Different behavioral patterns determine different sentencing standards, which is particularly important for the selection of defense strategies.
3. How to calculate the amount of the crime
The most important criteria for sentencing in cases of copyright infringement are the amount of illicit gains and the amount of illegal business operations. It is worth noting that the 2025 Interpretation has revised the numerical standards for “huge illicit gains or other particularly serious circumstances.” Previously, illicit gains of over 150,000 yuan or illegal business operations of over 250,000 yuan constituted grounds for escalation, but the thresholds for escalation have now been raised to 300,000 yuan and 500,000 yuan, respectively.
In copyright infringement cases, “illegal proceeds” refer to the total illegal income obtained or due to the defendant from selling infringing products, minus the cost of raw materials and the purchase price of the sold products. For services provided, the purchase price of the products used in such services is deducted. If profits are obtained through service fees, membership fees, or advertising fees, the fees collected shall be deemed as “illegal proceeds.” In practice, illegal proceeds are typically based on the defendant's profits.
“Illegal business volume” refers to the value of infringing products manufactured, stored, transported, or sold by the perpetrator during the commission of intellectual property infringement. The value of infringing products already sold is calculated based on the actual sales price. In practice, illegal business volume is typically determined based on the transaction records of game players' top-ups.
When calculating profits and transaction flows, investigative authorities typically rely on materials such as game backend data, transaction details from the defendant's third-party payment platform, and bank account transaction details. When reviewing these data, it is important to verify whether the figures are mutually corroborative and whether any non-involved amounts have been erroneously included in the calculation. The final criminal amount should not be determined based on a single data source.
For example, in the case of Liu Moumou et al. for copyright infringement, investigative authorities found that a third-party payment platform transferred over 30 million yuan to bank cards controlled by Liu Moumou et al. However, since bank transaction details and third-party platform settlement data did not distinguish between fund categories, it was impossible to determine the specific nature of each fund transfer, and it could not be confirmed or ruled out whether there were other income sources besides the illegal private server game operation revenue. Ultimately, the prosecution, adhering to the principle of “benefit of the doubt for the defendant,” only charged Liu Moumou and others with an illegal business operation amount of 20 million yuan based on their own admissions in their confessions. The court subsequently ruled that the illegal business operation amount was 20 million yuan.
Regarding the calculation of illicit gains, in some private server agency cases, the calculation method is the illegal business amount minus the deductible costs. Therefore, when reviewing illicit gains, it is also necessary to verify whether all deductible costs have been fully deducted. In practice, the deductible costs when calculating illicit gains include the operational and promotional expenses of the game.
For example, in the case of Du Moumou's infringement of copyright, the court found that Du Moumou had collected over 210,000 yuan in recharge fees from game players through the operation of the private server “Tianlong Babu Game.” After deducting the costs incurred for the operation and promotion of the private server game, the court ultimately determined that the illegal profits amounted to over 50,000 yuan.
III. The Lawyer's Perspective on This Case
1. Li Mou's alleged actions are relatively minor and may not constitute criminal misconduct.
According to Li Mou's own account, he acted as an agent for the involved game for a short period of time, earned little profit, and, in addition to his agent role, also made significant deposits as a player himself. The defense argues that to constitute copyright infringement, the act must be motivated by profit, and the amount of illicit gains must meet the statutory threshold. However, these self-deposits were made for Li Mou's personal entertainment and did not serve a profit-making purpose. In fact, Li Mou did not profit from this and instead incurred losses. Therefore, this portion of the amount should not be considered part of the illicit gains in this case and should be deducted. After deduction, Li Mou's illicit gains do not meet the statutory threshold for “substantial illicit gains” required for this offense and thus lack criminal illegality.
2. Even if a crime is established, Li Mou is willing to plead guilty and compensate the victim
In intellectual property crimes, obtaining the victim's forgiveness is an important circumstance for lenient punishment. According to Article 24 of the “Interpretation on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving the Infringement of Intellectual Property Rights” issued by the Supreme People's Court and the Supreme People's Procuratorate in 2025, the following circumstances may warrant lenient punishment: (1) pleading guilty and accepting punishment; (2) obtaining the rights holder's forgiveness; (3) Obtaining the rights holder's trade secrets through improper means but not yet disclosing, using, or allowing others to use them. After being detained, Li Mou demonstrated a good attitude of acknowledging his mistake and expressed willingness to compensate the rights holder to make up for the losses caused. Therefore, the defense counsel made multiple attempts to communicate with the rights holder, expressing the willingness to compensate and seeking forgiveness. Ultimately, with the cooperation of the public security authorities, the compensation matters were successfully resolved for Li Mou.
IV. Conclusion
Li Mou was ultimately released on bail pending trial, and this experience served as a profound lesson for him. This case also serves as a wake-up call for those in the gaming industry: legal protection of intellectual property rights is becoming increasingly stringent, and the general public's vague understanding of “private servers” may inadvertently lead them into criminal territory. As the scale of online gaming continues to grow, all personnel involved in any game operations must carefully verify the copyright credentials before engaging in such work. If assistance is needed, it is recommended to consult a professional lawyer promptly.
