A Research Of Anti-monopoly Law Regulation On Tying Arrangements Of Internet Software

When an internet company under dominant market position sells Internet software required by consumers,it is required to bundle and sell another software product or service together,and there is no valid reason for the tying arrangement,then such behavior is internet software tying from anti-monopoly law perspective.In the era of rapid development of information technology,Internet software tying arrangements show some characteristics such as platform competition,mostly free appearance,frequent user lock-in effects and enhanced agglomeration effects,which are different from traditional tying behaviors.According to the attributes of tying products,the tying behaviors of Internet software can be divided into tying behaviors of software and hardware,and tying behaviors of software and software.According to the software installation method when the tying behavior occurs,it can be divided into installation checked by default,silent installation and explicit bundle installation.There are three types of bundled installation methods and explicit bundled installation methods.Judging from the existing legislative norms in China,the "Anti-Unfair Competition Law" and "E-Commerce Law" have certain defects in the legal regulation of tying,and it is necessary that tying of Internet software is regulated by the "Anti-monopoly Law".There are two different analysis paradigms that are named the formalist paradigm and the effectual paradigm for the tying illegality determination paradigm.The biggest difference between the two paradigms is that the formalist paradigm focuses on market dominance and the effectual paradigm focuses on the competition of behavior effect.Looking at judicial practice on tying of China,it is not a formalist paradigm,but is closer to an effectist paradigm.The specific judgment is as follows.Firstly,you should determine whether Internet software companies have a dominant market position in the relevant market.Secondly,you had better judge whether there exist two independent products.Finally,you need to determine the competitive effect of the tying behavior and whether there is a valid reason for the implementation.Due to the nature of Internet software products,it is often difficult to identify certain illegal tying of Internet software.In the relevant market identification,the free nature of the Internet software products,the platform attributes and the borderless nature of the Internet have caused difficulties in the application of general identification methods.In terms of market dominance identification,the dynamic market structure of the industry has hindered traditional identification methods,and free features also make it difficult to measure market share.Traditional software judgment standards are diverse and have certain limitations in terms of software product independence.At the level of legal texts,the general definition of legitimate reasons is missing and the types listed in the regulations are incomplete.Comparing the judicial and law enforcement practices of the European Union and the United States in the regulation of Internet software tying,it is not difficult to observe that although there are differences in the thinking of the two countries.Although the judgment indicators selected at each step are not consistent,there are two points of consensus.Independent consumer demand is the main factor in judging the unity of a product,and the degree of competition influence is an important indicator for analyzing the legitimacy of behavior.In view of the above problems,combined with extraterritorial practice and Chinese actual situation,the identification of Internet software tying in the antitrust law should be solved from the following aspects.At the level of law application,we should coordinate the relationship between the Interim Provisions on the Prohibition of Abuse of Dominant Market Position and the Anti-Monopoly Law,and combine the current development of big data and the Internet to provide a deeper legal interpretation of the relevant provisions of the Anti-Monopoly Law.In terms of judging rule optimization,it is necessary to weaken the role of related markets in defining market dominance.Related product markets can be identified from two perspectives: paid and free and the definition of relevant regional markets should be analyzed on the basis of regional trade flow barriers.In the determination of market dominance,it is important to quantify the market entry barrier factors for measurement,and at the same time regard the operator’s ability to obtain and use relevant competition data as an auxiliary inspection factor.It had better consider selecting consumer demand standards and improve its application to cope with increasingly indistinguishable Internet software.What’s more,we can make a general definition of the connotation of legitimate reasons and perform typed analysis.