| Just like the four great inventions in the ancient China, the emergence of the computers and the Internet are the brilliant epoch-making masterpieces during the history of human civilization sparkled as the galaxy. Has never been a technology like a computer, which makes the production and the life of human being so tremendous, unprecedented upheaval. The advent of the Internet technology and the fast iteratively updates of the computer install the computer wings of flying that make human society unprecedented, far-reaching change. The Internet economy era is the best of times, also the worst of times. It connects the earth into a "village", but derived unfair competition from the digital environment; it makes the contact between people and consumption convenient, it also becomes the breeding ground of crime concealment and technicalization at the same time.Nowadays, unfair competition in the Internet context is the hot topic in the field of the Anti-Unfair Competition Law. The rapid development and the dramatic changes of information technology derive more new business models. The survival of the fittest, the discard of the worst is the unchangeable rule of market economy. In order to survive, the Internet companies are becoming fiercely competitive, along with the prosperity and development of electronic commerce and the Internet economy. As the competition took place in the Internet is increasingly brutal, the acts of unfair competition have more numerous and unorganized, various forms of expression.Faced with increasingly rampant Internet unfair competition, the frequently changing pattern of violations, the uncertain application of the law, it is more and more indispensable and impending to clarify the recognition and the application of the Anti-Unfair Competition Law, and to clear the nature and rules of the conduct of the unfair competition under the network environment.Based on the research of the new acts of unfair competition in the Internet context, this paper analyzes the conducts of Internet unfair competition which are caused by the Keywords Advertisement Services on the Internet and software interference, etc. The valid path to define the behavior of the Internet unfair competition is to go back to the origin, to reaffirm the functional position of the Anti-Unfair Competition Law, to inquiry the nature of the unfair competition behaviors. In order to break through the predicament, we should use the idea of the balance of the interests, and the solution of the statute. This paper consists of six chapters. The first chapter is an overview of the Internet context of unfair competition, the second chapter classifies the Internet unfair competition acts, the third and fourth chapters respectively analyzes the Internet unfair competition disputes caused by Keywords Advertisement Service and software interference, chapter five describes the application of law and the plight to definition of the Internet unfair competitive behavior, chapter six demonstrates the breakthrough of the plight on legal application of the unfair competition in the Internet context.The first chapter is an overview of unfair competition in the Internet context. Firstly, the status and the development of China’s network, and the impact of the Internet economy on the traditional economy is the opening. Then this part analyzes the development of the Internet at the national strategic level, and then analyzes the status of the Internet unfair competition, and combs the characteristics of the Internet unfair competition behaviors. The last content of this part is to explore why the Internet unfair competition acts frequently happen.The second chapter classifies the acts of the Internet unfair competition, it can be divided into traditional types of Internet unfair competition acts and new types of Internet unfair competition acts. The traditional types of Internet unfair competition acts include: commercial defamation acts on the network, acts of false propaganda on the network, the behavior of the market confusion on the network and the acts of stealing commercial secrets on the Internet. It is easier to identify the above kinds of unfair competition behaviors. There is not too much controversy on the application of the law. Besides, there are some unfair competition acts in the Internet context different from the traditional types of Internet unfair competition acts, no direct and specific legal provisions are corresponded in the Anti-Unfair Competition Law, and the applicable laws are more controversial. These types includes: the Internet unfair competition acts caused by the insertion of mark and modification of standard search box, the Internet unfair competition acts due to hot words services, the Internet unfair competition acts because of the Internet Robots Protocol, the Internet unfair competition acts caused by Keywords Advertisemet Services, the Internet unfair competition acts because of the conflict of the Internet domain name, the Internet unfair competition disputes triggered by browser or the third-party plug-in shielding or fasting forward the Internet advertising, etc. Among them, a considerable part is implemented by the aid of softwares.Based on a large number of domestic and foreign cases, the third chapter focuses on the new type of Internet unfair competition act caused by the Keywords Advertisemet Services,(pay per click advertisement or called the bid ranking service)which is occurred frequently. This part studies and analyzes the sources, development, legal nature of the Keywords Advertisemet Services, and the type of disputes which may lead to, the principle of the search engines, the review obligation of the search engine service providers, as well as the definition of the infringement and liability of the search engine service providers, etc. Finally, the rule of law is designed for the search engine service provider of Keywords Advertisemet Services, fourteen legal advices is drafted. Section one is the overview of Keywords Advertisemet Services. Keywords Advertisemet Services is a value-added Internet services, network users pay fees to search engine service providers, search engine service providers supply the tactic and combined search results different from the natural search results through a complex algorithm derived a computer for network users. Section two is on the positive and negative sides of Keywords Advertisemet Services. Keywords Advertisemet Services is a successful business model, it provides the search engine service providers with the opportunity to make a profit instead of suffering a loss. However, Keywords Advertisemet Services are also doubted, the search engine service providers have ever been taken a plunge, firstly faced with the negative reports of CCTV, recently they have contention with Putianxi, and they are critised because of the false medical advertising. Keywords Advertisemet Services has also been plagued infringement disputes even though during its peak development stage. Section three illustrates the judicial adjudication of Keywords Advertisemet Services. Ten cases or so are selected at domestic, the similar cases in France, Australia, and the United States and other countries are also studied. The possible infringement resulted from Keywords Advertisemet Services include: trademark infringement, unfair competition infringement, violations of the name right, and the other infringement. Section four is on the legal nature of the bid ranking service, it is concluded that the nature of Keywords Advertisemet Services is the Internet advertising service through the analysis of work principle of the search engine and the Advertising Law which is newly revised in 2015. Section five proves that search engine service provider for Keywords Advertisemet Services have the obligation to review whether the content of the linked site is legal, and to confirm its commitment should be a limited review of the liability. Section six is on the defination of the responsibility and infringement of the search engine service providers. This part points out that their responsibilities should be based on whether the behavior of the customers of Keywords Advertisemet Services constitutes infringement. In the seventh section,by analyzing the necessity of constructing Keywords Advertisemet Services safe harbor rules and logic approach, the author drafts fourteen provisions to design the legal rule of Internet search engine service providers in Keywords Advertisemet Services by referring the relevant laws of our country.The fourth part demonstrates the Internet unfair competition caused by the Internet software interference, primarily studies the type of browser or the third-party plug-in shield, fast forward advertising. Section one introduces the disputes caused by the software interference mainly include three types: the browser having the blocking and coming fast-forward ads function, providing the third party plug-ins with the function of shielding advertising. Section two starts with the main types of online advertising at the opening, then describes the development of online ad-blocking technology by taking the example of Adblock Plus. Section three discusses the two opposite viewpoints hold by the domestic scholars on the blocking ads case between Youtube and cheetah browser. Section four introduces the similar blocking ads cases at abroad, including one case in the United States and two cases in Germany, the courts finds that blocking ads software is not illegal and does not constitute infringement. The results of the three foreign cases are different from ours. Section five makes the conclusion that the ad-blocking software is unjust by the analysis of the interests among the consumers, software developers and publishers, as well as the video industry, etc. Section six describes the Internet video business model of the United States taking the example of the You Tube, and proposes that it is significant to improve the operating model of the video Web site and putting the benefit of the network users at the first place. Section seven summarizes several issues need to be pay more attention in judicial practice.This fifth chapter demonstrates the application of the law and the identified difficulties of the current Internet unfair competition. The positive and passive roles of the general terms are listed. Besides, the other issues of Internet unfair competition are also discussed. Section one notes that the general terms of Anti-Unfair Competition Law article two is usually applied to deal with the new acts of the Internet unfair competition at judicial practice. The elasticity and university of the General provision plays a very good role of lawful guidelines. However, we cannot eliminate the inherent drawbacks of general provision when applying with it. Its high degree of abstraction and uncertainty is likely to do harm to the competition order, therefore it need to be cautiously applied. Section two points out the other problems in the Internet unfair competition which need to be improved and solved, mainly including: it’s difficult to collect evidence and prove infringement; spread fastly and loss are difficult to be quantificationally measured; existing compensation system is irreparable to make up the loss claimed by the victim; the liability form is relatively simple, mainly administrative measures, lack of criminal responsibility.The sixth chapter demonstrates the breakthrough of the predicament of the legal regulation on the unfair competition acts in the Internet context. The first section argues that the necessity of the legal regulation in the Internet context unfair competition acts. Section two clarifies that we should go back to basics, reaffirm the positioning functions of the Anti-unfair Competition Law, explore the nature of unfair competition acts, return to the legislative purpose of the Anti-Unfair Competition Law, it is an effective way to define the network unfair competition acts. Meanwhile, the following issues are also discussed, such as: honesty and business ethics, the meaning of the consumer interests, the interest confrontation between the business dealer and the consumer,and the right of action of consumer. Section three proposes to deal with the acts of unfair competition in the Internet context by the thought of interest balance. In the case of occuring the interest conflict, the pluralistic interests need to be comprehensively measured and balanced. Protecting the Internet business model, encouraging technological innovation, progressing the scientific creation, maintaining the legitimate rights and interests of the operators, protecting the consumer interests, gaming the interests among groups, as well as enhancing the economic interests of the community as a whole, are all need to be balanced. The balance of interests is a dynamic balance. Maintaining and discarding the various interests need to be measured in the discretion of individual case, and achieving an overall balance ultimately. Section four introduces the law of regulating unfair competition acts in the United States and Germany, neither of these two countries has law to specifically regulate the Internet unfair competition behavior. None of the other countries in the world either. At last, the author points out that it is not necessary to make the specialized Internet unfair competition legislation. Section five suggests that we should solve the issues through perfecting the statute and guided by the principle of interests balance and strengthen the protection of the consumer interests. As to the typical Internet unfair competition acts, the author suggests that we should explicit these acts are illegal by revising the current law, or by judicial interpretation, or by referring to Germany’s appendix system. And we still need the general term to continue playing an active role. Section six responds the relevant recommendations to solve the other Internet unfair competition issues which are proposed in chapter five, section two. |
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