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ABSTRACT
Issues concerning cyber asset in cyberspace have intrigued the legislators, the judicial practitioners, the netizens, and even the onlookers in real world; simultaneously, academia is discussing the disputes aroused by this intangible object. However, various studies in the past refined the discussions in domains of law but the refinement fails to clarify the cyber-asset issues and to resolve the disputes. Therefore, a better understanding of what “cyber asset” is can be achieved by exploring cyber asset in the judicial discourses from a socio-semiotic perspective. In this study, judicial discourses are tantamount to the semiotic resource. Then, incorporating in a generic model of judicial discourses, we examine (1) how cyber asset as a sign has been framed by agents of the judicial institution of the People’s Republic of China; (2) how the judicial institution justified their framing; and (3) whether any temporal change in the semiotic system of cyber asset took place. Furthermore, by applying the five questions introduced by Van Leeuwen, we examine why the quandaries of cyber asset are aroused. In conclusion, we propose that the cyber-asset disputes can hardly be resolved unless joint efforts are made by the legislature and the judiciary of the People’s Republic of China.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Le Cheng is a concurrent professor at School of International Studies and Guanghua Law School at Zhejiang University. He is currently Associate Dean of School of International Studies, Director of Institute of Cross-Cultural and Regional Studies, Director of Center for Legal Discourse and Translation and Director of Center for Contemporary Chinese Discourse Studies at Zhejiang University. Additionally, he is the Editor-in-Chief of International Journal of Legal Discourse and Acting President of Multicultural Association of Law and Language. His main research interests include semiotics, language and law, terminology, and discourse studies.
Xin Wang, PhD Candidate, Department of Linguistics and Translation, Zhejiang University. Her research field includes legal discourse, (socio-) semiotics, jurisprudence and sociology of law.
Notes
1 For more detailed information, please refer to the website of the NATO Cooperative Cyber Defence Centre of Excellence: http://www.ccdcoe.org/cyber-definitions.html (Accessed 23 February 2018).
2 “Cyber asset” is also entitled as “virtual property” (e.g. Bartle Citation2004; Fairfield Citation2005; Rumbles Citation2011, etc.), “digital asset” (e.g. Benta Citation2017), “virtual goods,” “network virtual property” (English translation of the Provision 127 of the General Principles of the Civil Law of the People’s Republic of China). The denotations of these terms are similar, but in most previous academic literatures “virtual property” is equated with “property” in online games. In this study, in order to accomplish integrity, we equate xūnĭcáichǎn in Chinese with cyber asset in English.
3 “Cyberspace” was first created by William Gibson in his fiction Burning Chrome in 1982. The term has been rendered different definitions by different nations. For more details, please visit: http://www.ccdcoe.org/cyber-definitions.html (Accessed 27 February 2018). Some scholars may use terms such as “virtual world” or “virtual space” (e.g. Fairfield Citation2005; Chew Citation2011, etc.) to refer specifically to as online computer-based games. There are scholars, for example, Lastowka (Citation2010, 67–74), equate “virtual world” with cyberspace. In this study, we stick to the term “cyberspace” in order to maintain the integrity.
4 Infographic: 10 Years of Second Life. Released by the Linden Lab on 20 June 2013. https://www.lindenlab.com/releases/infographic-10-years-of-second-life (Accessed 12 February 2018).
5 Bragg v. Linden Research, Inc. (487 F. Supp. 2d 593). The case was decided by the United States District Court for the Eastern District of Pennsylvania on 30 May 2007.
6 In this case, the plaintiff, Li, purchased various cyber assets “biochemical weapon” in a game named Hongyue. However, those “weapons” were “stolen” by another gamer. The plaintiff lodged a civil litigation after failing to recover his “weapons.” In the suit, the plaintiff insisted that the “weapons” are “property” for he had spent over ten thousand yuan on buying them, while the company rebutted that the “weapons” are nothing but data. Li won the litigation and the company was urged to recover the “weapons” by the court. http://www.cctv.com/news/financial/inland/20031221/100182.shtml (Accessed 17 December 2017).
7 The debates are among the liberalists, the middle-of-the-roaders and the non-liberalists.
8 For details of Second Life, please visit: http://secondlife.com/ (Accessed 25 February 2018).
9 For details of this videogame, please visit: http://www.thelastofus.playstation.com/ (Accessed 25 February 2018).
10 Except Benta (Citation2017), other scholars listed above employed the term “virtual property” and “virtual world” instead of “cyber asset” and “cyberspace.” Those who used “virtual property” and “virtual world” refine their topic in online games.
11 “Personal property” here is not equivalent with “personal property” in common-law and equity-law contexts; instead, “personal property” in this sentence denotes individual assets. Moreover, in the P. R. C., “property” denotes to immovable property and movable property (second provision of the Article 2 of the Property Law of the P. R. C.). On the contrary, the interpretation of “property” in common-law and equity-law contexts is different, for example, “property” includes a thing in action, and any interest in the real or personal property (Part IX (xx), Settled Land Act 1925 of the United Kingdom). Whereas the distinction, we would not distinguish the two terms in this study since this study is not designed to work on the difference.
12 For example, when a specific cyber asset is recognized as “property,” if one stole it, the defendant would be convicted of stealth (the sentencing varies according to the amount of money and the circumstances: (1) less than three-year imprisonment, criminal detention or control; (2) three-year to ten-year imprisonment; (3) more than ten-year imprisonment or life imprisonment). When a cyber asset is recognized as “data,” the defendant who “stole” it would be convicted of sabotaging computer information system (generally, less than five-year imprisonment or criminal detention would be applied; and more than five-year imprisonment would also be applied under serious circumstances).
13 Article 3, the Constitution of the P. R. C. (Promulgated and Effective on 4 December 1982).
14 Cases cited in this study can be retrieved in http://www.pkulaw.cn/Case/ (Accessed 25 May 2018).
15 Wu v. PPTV., No. 9 (2014), the Jizhou District People’s Court of the P. R. C., Ji’an, Jiangxi Province (Decided on 25 August 2014).
16 The wording was not integrated, for example, property, personal property, legitimate property, property-form, etc.; therefore, “quasi-property” is applied unless the term “caíchǎn” (property) was clearly presented in the judgements.
17 Liu v. Wang (case on appeal), No. 616 (2013), the Jinan Intermediate Court of the P. R. C., Shandong Province (Decided on 6 December 2013).
18 Huang v. Since Times (case on appeal), No. 1044 (2016), the Beijing Second Intermediate People’s Court of the P. R. C. (Decided on 23 March 2016).
19 Peng v. Zhu, No. 2090 (2015), the Shanghai First Intermediate People’s Court of the P. R. C. (Decided on 28 September 2015).
20 Playcrab v. Li, No. 22612 (2016), the Haidian District People’s Court of the P. R. C., Beijing (Decided on 28 December 2016).
21 Stealth by Liu et al, No. 222 (2013) the Xuhui District People’s Court of the P. R. C., Shanghai (Decided on 20 June 2013).
22 For instance, in Illegal Acquisition of Data in CIS by Hong (No.1544 [2010]), the court illustrated that “currency in online games is a sort of cyber assets which is created by game developers according to the setup of a game; therefore, it is a sort of cyber entities stored in cyberspace or CIS with specific representations. These cyber entities are with no [economic] value per se, and there are two ways for gamers to gain these cyber assets: one is by time and ‘laboring’ and the other is by purchasing. Whether cyber asset should be endowed with economic value and with the protection by law have currently no legal bases. Thus, it is impossible to find legal grounds to decide the value of the cyber assets gained by the first method. In terms of the second mode, considering that the owners of these cyber assets gained these assets by the transaction in real money, these cyber assets have been attached real Property-right. Hence the stealth of these attached-right cyber assets should be bore criminal liabilities and be convicted of the crime of stealth from a perspective of equal protection.” The defendant was convicted of the crime of illegally acquiring data in CIS because no sufficient evidence/proof suggested that the victim had purchased these cyber assets. The case was tried in the Cixi People’s Court of the P. R. C., Ningbo, Zhejiang Province and was decided on 30 May 2011.
23 Stealth by Xu, No. 1 (2011), the Tonglu County People’s Court of the P. R. C., Hangzhou, Zhejiang Province (Decided on 30 January 2011); Misappropriation by Zhang, No. 298 (2015), the Maonan District People’s Court of the P. R. C., Maoming, Guangdong Province (Decided on 4 August 2015).
24 For example, Defraud and Stealth by Yang, No. 60 (2015), the Wulatezhongqi People’s Court of the P. R. C., Bayannur, Inner Mongolia Autonomous Region (Decided on 2 September 2015).
25 The laws that the courts have applied include: The Contract Law of the P. R. C. (CL), The General Provisions of the Civil Law of the P. R. C. (GPCL), The Tort Law of the P. R. C. (TL), The Property Law of the P. R. C. (PL) and The Law of the P. R. C. on the Protection of Consumer Rights and Interests (LPCRI). Abbreviations are used for the sake of the layout. Besides, in several cases, the decisions were grounded on judicial interpretations and decisions issued by the Standing Committee of the NPC, and we use “Others” to represent these documents.
26 There are four cases whose judgement did not render such information.
27 Article 5, the Property Law of the P. R. C. (Date Issued: 16 March 2007; Effective Date: 1 October 2007): The varieties and contents of real rights shall be stipulated by law.
28 Defraud and Stealth by Wang et al., No. 64 (2015), the Wulatezhongqi People’s Court of the P. R. C., Bayannur, the Inner Mongolia Autonomous Region (Decided on 2 September 2015).
29 Illegal Acquisition of Data in CIS by Zhang et al., No. 00094 (2015), the Baohe District People’s Court of the P. R. C., Hefei, Anhui Province (Decided on 25 March 2015). The court indicated that due to the lack of property-nature in cyber asset it is erroneous to apply a conviction of stealth.
30 Ma v. Shanda, No. 37 (2007), the Jiangyin People’s Court of the P. R. C., Jiangsu Province (Decided on 18 May 2008).
31 Huang v. Since Times, No. 1044 (2016), the Beijing Second Intermediate People’s Court of the P. R. C., Beijing (Decided on 23 March 2016).
32 Zhang v. Shanghai Zhuangyou Information Company, No. 88312 (2016), the Pudong New District People’s Court of the P. R. C., Shanghai (Decided on 20 March 2017).
33 Provision 127, the General Principles of the Civil Law of the P. R. C. (Date issued: 15 March 2017; Effective date: 1 October 2017).
34 “The law-based governance of China” is the official translation rendered by the Central Compilation and Translation Press.