Does Creating and Distributing a [Fake] 'Black Myth: Wukong' 'Cracked Game Package' Constitute Infringement?
A legal analysis of a fake 'Black Myth: Wukong' cracked game package meme, examining potential trademark and copyright infringement against Game Science, unfair competition claims by miHoYo, and criminal liability for the creator and downloaders.
Recently, two rather “abstract” screenshots went viral online.
Initially, a Steam forum user named NGGYu created a fake “Black Myth: Wukong” “cracked game package.” Clicking the exe would automatically play the 1986 CCTV version of “Journey to the West” TV series:
Later, after discussions with other forum users, he modified the program to automatically play the theme song of the 1986 “Journey to the West,” and upon uninstallation, it would automatically install “Genshin Impact”:
Truly abstract—only forum users can come up with this
However, does creating and distributing such a fake pirated game installation package constitute infringement or even a crime?
Let’s analyze it simply from the perspective of different parties, using the forum user’s version 2.0.
*This article reflects only the author’s personal views and does not constitute any legal advice or legal opinion.
I. Game Science (Developer of Black Myth: Wukong)
May constitute infringement of Game Science’s trademark rights and copyright.
- Trademark Rights
Game Science, as the developer of Black Myth: Wukong, has already registered the trademark “Black Myth: Wukong” in its entirety, and the level of protection can even be described as “overkill”:
The commonly used trademark classes 9/41/42 for games are, of course, already registered:
But other classes were also not spared:
They even registered a large number of trademarks with “Black Myth” as a prefix:
Achieving near-complete protection for this name:
The forum user released his own software under the name “Black Myth: Wukong” (regardless of the actual content, it is still software)
Whether or not there is profit involved, this has actually infringed upon Game Science’s trademark rights.
Article 57: Any of the following acts shall constitute an infringement of the exclusive right to use a registered trademark: (1) Using a trademark identical to a registered trademark on the same goods without the permission of the trademark registrant; (omitted) Trademark Law
- Copyright
Although the forum user’s software may have nothing to do with Black Myth: Wukong
And does not involve any code from Black Myth: Wukong
The forum user used Black Myth: Wukong’s artwork as the icon for the “exe file”:
Using someone else’s artwork on his own software’s executable already constitutes copyright infringement:
Article 52: Those who commit the following infringing acts shall, depending on the circumstances, bear civil liability such as cessation of infringement, elimination of adverse effects, apology, and compensation for damages: (1) Publishing the work without the permission of the copyright owner; (omitted) Copyright Law
Article 53: Those who commit the following infringing acts shall, depending on the circumstances, bear the civil liability provided in Article 52 of this Law; where the infringement simultaneously harms the public interest, the copyright authority shall order cessation of the infringement, issue a warning, confiscate illegal gains, confiscate and destroy the infringing copies and the materials, tools, equipment, etc. mainly used for making the infringing copies, and may impose a fine of not less than one time but not more than five times the illegal turnover if the illegal turnover is 50,000 yuan or more; if there is no illegal turnover, or the illegal turnover is difficult to calculate or is less than 50,000 yuan, a fine of not more than 250,000 yuan may be imposed; if a crime is constituted, criminal liability shall be pursued: (1) Reproducing, distributing, performing, displaying, broadcasting, compiling, or disseminating the work to the public through information networks without the permission of the copyright owner, unless otherwise provided by this Law; (omitted) Copyright Law
Neither trademark rights nor copyright require “profit” as an element of infringement. Therefore, regardless of the forum user’s original intention or whether he profited (let alone forum experience gains), he may potentially constitute infringement.
However, since this is a civil dispute, whether Game Science chooses to sue or is willing to let it be is entirely up to Game Science.
II. miHoYo (Developer of Genshin Impact)
May constitute unfair competition (commercial defamation) against miHoYo, as well as infringement of its copyright.
- Unfair Competition (Commercial Defamation)
The forum user’s version 2.0 added a new feature: upon uninstallation, it would “automatically install Genshin Impact.”
This behavior may lead others to mistakenly believe that the software (fake cracked game package) was created by miHoYo and used to promote its Genshin Impact game, giving miHoYo a reputation for “malicious promotion.”
It could even potentially trigger disputes between Game Science and miHoYo (purely theoretically).
Based on the potential damage to miHoYo’s goodwill, the forum user’s act of including the Genshin Impact installation package has already potentially constituted unfair competition (commercial defamation).
Article 11: Business operators shall not fabricate or disseminate false or misleading information to damage the commercial reputation or product reputation of competitors. Anti-Unfair Competition Law
Note: The definition of “business operator” is not narrow; it is not limited to other game developers.
The term “business operator” as used in this Law refers to natural persons, legal persons, and unincorporated organizations engaged in the production or sale of goods or the provision of services (hereinafter goods include services).
- Copyright
Similarly, miHoYo, as the developer and operator of Genshin Impact, has the right to decide how to publish and distribute the Genshin Impact installation package.
The forum user repackaged the Genshin Impact installation package into the “uninstall program,” causing the installation package to not appear as a “Genshin Impact installation package” and not be disseminated online in the manner intended by miHoYo. This has already potentially infringed upon miHoYo’s copyright (the software copyright of the installation program).
This is also covered by Article 53 of the Copyright Law; please refer to the specific provisions above.
Unlike Game Science, for miHoYo, the spread of this “fake cracked version” is entirely a negative existence. Therefore, the risk of the forum user being sued is relatively higher compared to the previous case.
III. Users Who Downloaded the “Cracked Version”
May constitute unfair competition and the crime of destroying computer information systems.
- Unfair Competition
In May of this year, the State Administration for Market Regulation issued the Interim Regulations on Anti-Unfair Competition on the Internet, which refined certain aspects of online unfair competition. For a detailed analysis of the Regulations, please see:
The Regulations contain two relevant articles:
Article 21: Business operators shall not use technical means to implement the following acts that hinder or destroy the normal operation of network products or services legally provided by other business operators: (1) Downloading, installing, or running applications against the user’s will;
Article 22: Business operators shall not violate these Regulations by implementing other online unfair competition practices that disrupt market competition order, affect fair market transactions, or harm the legitimate rights and interests of other operators or consumers. Interim Regulations on Anti-Unfair Competition on the Internet
The uninstall program in the forum user’s version 2.0 would automatically download and install Genshin Impact, constituting an act of “downloading, installing, or running against the user’s will” under the Regulations, harming consumer rights and constituting online unfair competition.
As for whether users hoping to download a “real cracked version” (an illegal act) but receiving a “fake cracked version” constitutes “fraud,” in my opinion, it does not.
Unlike “flour disguised as drugs,” the forum user did not gain any profit from the “fake cracked installation package.” Although downloading users may have lost time and network traffic, the actual loss is difficult to quantify (broadband traffic charges are typically on a monthly flat-rate basis in China, making normal quantification difficult), so it is hard to meet the elements of the crime of “fraud.”
However, automatically installing Genshin Impact is an infringing act.
- Crime of Destroying Computer Information Systems
Within that forum thread, other users suggested adding functions like “automatic system reinstallation,” “automatic hard drive formatting,” and “automatic uninstallation of certain software,” but some users pointed out that these could constitute the “crime of destroying computer information systems.”
This is correct—adding such functions would indeed constitute this crime.
But unfortunately, the version 2.0’s built-in automatic installation of Genshin Impact may already constitute this crime.
Article 286 [Crime of Destroying Computer Information Systems]: In violation of state regulations, deleting, modifying, adding, or interfering with the functions of a computer information system, causing the computer information system to be unable to operate normally, if the consequences are serious, the offender shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the consequences are particularly serious, the offender shall be sentenced to fixed-term imprisonment of not less than five years.
In violation of state regulations, deleting, modifying, or adding data and applications stored, processed, or transmitted in a computer information system, if the consequences are serious, shall be punished in accordance with the provisions of the preceding paragraph. Criminal Law
Article 4: Destroying the functions, data, or applications of a computer information system, in any of the following circumstances, shall be deemed as “serious consequences” under paragraphs 1 and 2 of Article 286 of the Criminal Law: … (2) Deleting, modifying, or adding data stored, processed, or transmitted in 20 or more computer information systems; …
Implementing the acts provided in the preceding paragraph, in any of the following circumstances, shall be deemed as “particularly serious consequences” of destroying computer information systems: (1) The quantity or amount reaches five times the standard provided in items (1) to (3) of the preceding paragraph; … Interpretations on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving Endangering the Security of Computer Information Systems
The “crime of destroying computer information systems” includes not only “deleting” and “modifying” but also “adding.”
Without obtaining user authorization, having a program automatically install other software (regardless of what the software is) may already potentially constitute this crime.
At the same time, the threshold for this crime is very low—only 20 computers (20 pirated game players) need to download the software and have Genshin Impact automatically installed through the uninstall program to meet the threshold for criminal liability.
When the number reaches 100 computers (easily achievable for popular games), it constitutes “particularly serious consequences,” carrying a sentence of more than five years.
IV. CCTV and Mr. Xu Jingqing
May have infringed upon CCTV’s copyright (copyright of the opening theme MV) and Mr. Xu Jingqing’s copyright (copyright of “Yungong Xunyin”).
In version 1.0, the forum user included the complete 1986 version of the Journey to the West TV series, which undoubtedly constitutes infringement of the series copyright held by China International Television Corporation (the producer, a subsidiary of CCTV).
Later, in version 2.0, the forum user changed it to include a clip of the theme song from the 1986 Journey to the West TV series.
Although the degree of infringement is lower, it is still infringement.
The theme song clip from the 1986 Journey to the West TV series is still part of the series, and China International Television Corporation still holds its copyright.
At the same time, the copyright of the theme song “Yungong Xunyin” belongs to Mr. Xu Jingqing. Disseminating the theme song clip also infringes upon Mr. Xu Jingqing’s copyright.
The forum user’s act of using it for a “fake cracked game package” does not constitute any form of fair use and cannot be used as a defense for exemption.
V. Conclusion
Did you not expect that such a seemingly “small” meme-like abstract act could involve so many illegal and infringing acts?
However, based on my personal experience, this forum user may have just been “purely making a meme” and may not have actually had the ability to create the software.
Even the so-called startup file was just a [shortcut]:
Comparison of icons between a normal exe and a shortcut (note the arrow in the bottom left corner)
The so-called “startup program” in the forum user’s screenshot
After all, changing the icon for a “shortcut” is much easier:
(Or did the forum user actually create such illegal and infringing software?)
So, does the forum user’s act of claiming to have made a “fake cracked package” constitute a violation of the law?
For now, it may not be illegal, or it may constitute “spreading online rumors” (administrative penalty), depending on whether the forum user subsequently clarifies.
Overall:
Keep memes in moderation
Don’t become the meme yourself
