| The unfair competition behavior in the Internet environment is the focus of social concern in recent years.Article 12 of the “Anti-Unfair Competition Law,” which came into force on January 1,2018,has newly added provisions for the recognition of unfair competition in the Internet environment.The identification of unfair competition behaviors will gradually move toward modernization,scientificization,and informationization.The unfair competition disputes arising from the creation of shielded video advertising software have become increasingly fierce in recent years.Not only can they be regulated through the newly revised “Unfair Competition Law,”but also the relevant judicial rules that have been rapidly formed in judicial practice.direction.With the advocacy of the development of Internet technology innovation,it has caused controversy whether shielding video software advertising behavior constitutes unfair competition.Does blocking video software advertising constitute unfair competition? What are the relevant jurisdictional rules? How is the legal remedy procedure? The discussion of these issues is beneficial to the theoretical and practical analysis of the behavior of screening video software advertisements.This article considers the case of the dispute between Shanghai Damo Networks Technology Co.,Ltd.and Shanghai Juli Media Technology Co.,Ltd.as an entry point for thinking,and combines theory analysis and case analysis to regulate the "unfair competition law" that shields the advertising behavior of video software.Research.This article is divided into five parts.The first part is a brief introduction of the case and an analysis of the focus of the dispute.This section briefly introduces the case and summarizes the focus of the case:whether the screening of video software advertisements is justified and constitutes unfair competition.This leads to the author’s thinking about shielding video software advertising behavior.According to the provisions of Articles 2 and 12 of the Anti-Unfair Competition Law,unfair competition acts in the network environment must meet four requirements: both parties are operators with competitive relationships,unfair competition acts,and other damages.The legal interests and subjectiveness of business operators and consumers are faulty.However,the behavior of screening video software advertisements is also special in the network environment.Whetherthere is a competition relationship between software operators and video website operators,whether the video website “advertising + video” business model is protected by law,and the software operator Whether the defense of “neutral technology” is established and what the legal remedy procedures are,these factors will influence the composition of unfair competition behavior.Therefore,the entire article focuses on the investigation of the competitive relationship of screening video software advertising behaviors,improper identification,subjective fault determination,and legal relief procedures.The second part is to identify the competition of video software advertising competition.This section puts forward the view that the competitive relationship in the Internet environment needs to be diluted,and discusses the necessity,reality,and rationality of desalinating and dealing with competitive relationships.This article not only takes the competitive relationship between Morgan Stanley and Cohesion as an example,but also introduces a large number of other cases: Youku v.Cheetah browser unfair competition dispute case,iQiyi v.Beijing Extreme Technology Co.,Ltd.improperly Cases such as competition disputes,iQiyi v.Shanghai Qianshan Network Technology Development Co.,Ltd.,unfair competition disputes,iQiyi v.“UC”browser unfair competition disputes,3Q prequel,etc.,fully discussed the issue.In addition,I believe that the competition relationship must also be subject to certain restrictions: both parties should be operators,not limited to competitors in the same industry,and the parties have a balance of interests and other interests.The third part is to identify the unfairness of advertising behavior of video software.This section starts with the case and shields the improper behavior of video software advertising behavior to undermine the interests of video website operators.Although the business model of “video + advertising” is not protected by law,it adopts the “advertising + video” business model of video websites.The benefits obtained should be protected by law.Article 12 of the Anti Unfair Competition Law stipulates the unfair competition provisions in the Internet environment.The fourth paragraph is used as a cover clause,although the law itself indicates that as long as it interferes with or disrupts other legitimate operators’ provision of network products or services The behavior of the operation can be regulated by the Anti-Unfair Competition Law,but the "handicap" and "destruction" in the article cannot be generalized.The fourth part is to identify the subjective fault of advertising video software.This part is a subjective judgment factor in judging unfair competition behavior.The author starts with the meaning of “fault”,introduces subjective fault theory and objective fault theory,and shields video software advertising behavior according to operational feasibility and judicial development trend in judicial practice.The assertion of subjective fault should use the theory of objective fault.Combining the effects of screening advertising software on the future development of video operators and video websites,the method of identifying the subjective faults of video advertising advertisements is described.The fifth part is the legal remedial program that shields video software advertising behavior.According to the "Unfair Competition Law" and "General Principles of Civil Law" and other related laws,the legal liability for acts of unfair competition is mainly to stop acts of unfair competition and compensate for losses.However,due to the characteristics of fast network dissemination,wide range,strong technicality,difficulty in collecting evidence,and long litigation cycle,even if the infringed person eventually wins the lawsuit,it is difficult to promote the later rights and interests.In order to avoid such drawbacks,a system of pre-proceeding preservation and multi-judgment of compensation amount can be introduced in the legal remedial procedures that shield video advertising advertisements. |
