The Legal Application Of The Principle Of Technological Neutrality In Unfair Competition On The Internet

The principle of technology neutrality was introduced in Sony to solve the contributory liability of producers and sellers in Copyright Law.It was further developed in Napster and Grokster.This principle shows that in the absence of clear evidence to prove that the seller abets or induces others to infringe copyright,the seller can not be inferred to have subjective faults and be liable for contributory infringement because the product can be used for infringement.The principle of technology neutrality is originally an important principle in Copyright Law,which plays an important role in balancing the value conflict between copyright owner’s exclusive rights and technical innovation.The innovation of Internet technology brings convenience to users,at the same time,it also has a certain impact on the order of market economic.It causes conflicts between different subjects.In order to effectively solve the conflicts of interest caused by technical innovation,it is necessary to introduce the principle of technology neutrality in Internet market competition.By analyzing the theoretical basis of Anti-Unfair Competition Law and Copyright Law,it is found that they are related to the protection of interests,ways,objects,acts and legal liabilities.Now,legislative provisions are not strict enough and judicial standards are too strict in Chinese Internet unfair competition.Technical act is an important way of Internet competition.The existing legal provisions and judicial experience can hardly meet the actual needs of the Internet market to determine the legitimacy of technical act.Introducing the principle of technology neutrality into Anti-Unfair Competition Law is necessary to solve the cases of unfair competition in the Internet environment.At the same time,the computer software has dual nature of ’commodity’ and ’work’ The principle of technology neutrality embodies the content of good faith principle and measuring the competitive interests.These make it feasible to apply the principle of technology neutrality in Anti-Unfair Competition Law.By sorting out relevant cases in Chinese judicial practice,it is founded that there is a tendency of protecting the interests of precedent operators existing in the judgments of the legitimacy of technological act from three aspects.First is the confirmation of the nature of technical act.Second is the logic of protecting business models.Third is the protection of signal interest.In the determination of the nature of technical act,the court tends to think that subjective malicious technical behavior is a usage.But in fact,once subjective malice is determined,it directly excludes the application of the principle of technology neutrality.The nature of technical act can be determined by observing whether the user is given the right of free choice.The business mode is not an operator’s right.It is more appropriate to adopt the mode of legal interest protection than the mode of right protection to determine the legitimacy of technical act that undermine business models.In the process of identifying the legitimacy of technical act,the overemphasis on the protection of a single interest doesn’t match the idea of measuring interests.Combining the general provisions with the provisions of Internet of Anti-Unfair Competition Law,we can comprehensively identify the essential elements of the establishment of technological behavior causing unfair competition from the generalized competition relationship,the external performance of the behavior and the objective damages to interests guaranteed by Anti-Unfair Competition Law.Courts should follow the next three steps when judging whether the principle of technology neutrality can be applied in cases of unfair competition caused by Internet technology.First,it needs to judge the identity of the technological side.When the requirement of the main body is met,then we need to confirm whether there is a competitive relationship between the parties.Finally it must inspect the illegitimacy of the behavior.When the technical side is the technology user or technical act constitutes unfair competition,the principle of technology neutrality cannot be applied.