| This paper analyzes the difficulties in the case of Taobao v.Meijing in depth,and considers the legal level.Taobao v.Meijing company's illegal sharing of data products of network operators by means of technology was publicly adjudicated by Hangzhou Internet Court on August 16,2018.This case first used the definition of "enjoy competitive property rights and interests" for data products involved in the case,which became the first case in China to confirm that network operators enjoy property rights and interests of data products,and was selected as "2018 person" Ten civil administrative cases of the civil court ".Taobao company,the plaintiff of this case,is the developer and operator of "business consultant" data product,which mainly provides data reference service for online store operation of Taobao and tmall businesses and helps businesses improve their business level.In the course of operation,Taobao found that the website of "goo mutual aid platform" and "goo business consultant crowd funding" operated by the defendant Meijing company solicited,organized and helped others to obtain the data content in the data product of"business consultant" by providing the remote login service,and gained benefits from it.Taobao believed that Meijing's actions constituted unfair competition and sued it.After the trial,the court held that Meijing company did not pay for labor creation and directly used the data products involved in the case as a tool to obtain commercial interests,which constituted unfair competition.It ordered Meijing company to stop infringement and compensate for economic losses.As the object of new legal relationship,data product has not been included in the property right,creditor's right,intellectual property or other property system in legal theory,and the protection period and protection mode(referring to the protection of existing property right,intellectual property or other rights,or creating a new protection mode in a new type of property form)of data product are not clear enough.For the developers and operators of data products,as different types of right subjects,the law has different regulations on the scope and way of protection.If the data is made into different types of right objects,there will be different ways of protection,leading to different consequences and effects of protection.In this context,the disputes caused by the transaction and use of data products are slightly inadequate in the legal basis of settlement.Therefore,this paper is written to clarify the legal attributes and rights and interests of e-commerce data products in the period of dataeconomy at the legal level,and analyze whether the behaviors of other operators in the same industry constitute unfair competition,the qualitative and quantitative analysis of their civil liability,and the legal basis for the form and amount of compensation for damages.The purpose of this paper is to discuss on the basis of in-depth analysis of the trial process of sample cases and judicial decisions.In the first part,the author nalyzes the judicial thinking and legal difficulties of the case by analyzing the reasons of plea and defense of both parties.This case focuses on the following issues: first,the legitimacy of the data product itself,that is,whether the behavior of data product developers to collect user information is legal.This needs to discuss the boundary between data and personal information from the legal level.Second,whether data product developers have property rights and interests in data products.The third is the determination of civil liability.As a ubiquitous network operator,whether Meijing company has a competitive relationship with data product developers? If so,considering the "technology neutrality principle",whether its behavior can be identified as unfair competition behavior,if not,whether its behavior constitutes a general tort.The second part discusses the legal attribute of data products and its decisive effect on the direction of judgment.There are two main theories about the legal attribute of personal information in the academic circle: the theory of personality right and the theory of property right.As the derivative of personal information,the legal attribute of data product is still worth studying.It is necessary to make clear the right boundary between the developer and the relevant network users for the network user information,the original network data and the data product,which will fundamentally determine the different direction of judgment.The third part studies the difference between data product developers' development and use of data products and data product related parties(Meijing company in the case)who provide technical services in exchange for sub accounts provided by users who order data products to obtain data content and obtain commercial interests from the perspective of tort debt,real right and copyright.From the perspective of tort debt,that is,based on the regulation of anti unfair competition law,developers do not have a certain right to data products,but only a kind of interest with commercial value.Only when the interest is damaged can they appeal to the law.In this negative empowerment mode,developers can only use the data productsthemselves,and can not obtain through licensing,setting guarantees and other ways From a broader perspective,this right definition does not conform to the development trend of data economy and is not conducive to the overall development of data-driven economy.This article attempts to discuss from the perspective of real right and copyright,and from the perspective of ownership of rights and interests,the basis of punishment,the impact on the interests of the parties,etc.The fourth part discusses "the elements of tort" and "the legal rights and interests damaged" from the perspective of the identification of the nature of the liability for damages in the anti unfair competition law.The first is to explore the relationship between the "tort" in Article 17 of the anti unfair competition law and the general tort and tort liability in the tort liability law.The second is to discuss the relationship between the improper competition behavior and the "infringement" in the anti unfair competition law. |
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