"N Great right and wrong" caused by 3Q monopoly case

China's internet has so far been the highest level of attention 3Q war is about to settle, from "business War" to the litigation war, lasted for quite a long time four years, the impact of a huge, is considered to be a classic case of Chinese internet history. 360, Tencent Monopoly, Tencent v. 360 unfair competition, the former is called "Internet antitrust first case", the latter is called "Internet anti-unfair competition first case." Now two cases in the Supreme People's Court trial, although the outcome of the trial has not come out, but the matter involved in the monopoly of the topic has aroused widespread concern, and even caused to academic heights, many well-known scholars, experts on their views. such as economist, Peking University professor Zhang for this special article, direct point to "anti-monopoly law." Weiying that the anti-monopoly law is "absurd law" because it is based on the erroneous definition of "competition" and "monopoly" in traditional economics, and that traditional economics mixes competition and monopoly completely.

white-hot PK

"' What do you do if Tencent does the same product? ' ' This is a question that Chinese internet start-ups are almost always asked by investors when they introduce investment. In fact, ' life, Death, Tencent ' has become the three of Chinese internet young entrepreneurs must face daily problems, some entrepreneurs will answer: ' This area Tencent will not pay attention to. "What if Tencent is concerned?" "..." November 26 morning, 360 companies for Tencent, issued a title entitled "Do not let the monopoly of the Chinese dream of killing young entrepreneurs!" , said the internet giant through imitation, plagiarism means to invade the survival of entrepreneurs, the giant monopoly has made the Chinese Internet industry desertification, and called on the monopoly to kill young entrepreneurs.

26th the same morning, 360 v. Tencent Monopoly case in the Supreme People's Court for final session. Outside the courtroom, Tencent returned 360: "Since Tencent implemented the open strategy, 800,000 developers have been dreaming on Tencent's open platform, with more than 2 million public accounts on the micro-credit public platform." Over the past two years, Tencent's revenue to Third-party partners has been as much as 3 billion yuan, and the income of third party partners in the year is as high as 3 billion yuan. On the micro-credit public platform, there will be more companies to achieve their dreams. ”

Interesting is one weeks later, that is, December 4, this day is also China's Franco-Prussian day, Tencent v. 360 Buckle bodyguard Improper competition in the case of the final also in the Supreme People's Court. In response to 360, Tencent also issued an open letter to 360, "Let the Sun illuminate the Internet fair competition."

"The internet is an emerging industry, should be a fair competition, full of innovation, sunshine transparent industry, but we see that the current unfair competition in this industry is very serious, mutual slander, malicious destruction, and even some security software directly to kill competitors, such a phenomenon is commonplace." "At the same time, the cost of violating the rules is very low," Tencent said in an open letter. On the one hand, the court will ask the injured party to testify, and the proof is often difficult, on the other hand, the compensation is very low. For example, 360 lawsuits 12 defeats, total only need to compensate 7 million yuan. ”

The court acrimony, outside the court, each other scar. The 3Q war will be closed, but the smoke is still thick. November 26, the chairman of Qihoo 360 attended the "2013 annual meeting of the State of entrepreneurship," said the speech, "we learn martial arts people know, are talking about four of the weight, of course, there is a sentence called a force down ten, you jiabuzhu each other is a 500 catty of the big fat, now the Chinese Internet is not fun, was playing judo, martial arts, Now the Giants have changed their sumo, so I looked at the global situation, the Antarctic continent has penguins, polar bears on the Arctic Ocean, these two creatures quickly to the Chinese Internet all the market monopoly, the value of user growth forget, the only we are glad to say, we also produced a large company, You see they are roughly equal to the sum of all the listed companies combined. ”

The result of the trial of the monopoly case of Tencent on the day 360 Zhou said that the highest law, Hunan satellite TV, Sina Weibo and so on in the case of the live broadcast, the case has aroused public attention to the monopoly, so for him, "is the loss is the value of the win."

However, it stressed that "you can not support me, but I hope that we can all support the antitrust, because only antitrust can ' beat tyrants '." ”

Monopoly n big controversy right and wrong

The vigorous 3Q litigation war has aroused extensive concern from all walks of life, especially the discussion of monopoly problem.

In the trial of 360 v. Tencent Monopoly, the Supreme Court summed up the controversy in five major areas, involving 22 specific issues. How to define the relevant market? Second, Tencent (the specific product that is, QQ instant messaging software) is the market dominance? Three is Tencent (the market competition behavior of the second choice) constitute the abuse of market dominance behavior prohibited by anti-monopoly law? How to bear the civil liability? Qihoo 360 made a claim of 150 million yuan. Five is the first instance court (Guangdong Province High Courtyard) whether the procedure violates the law? Mainly refers to the introduction of the evidence without a certificate. The following four focal points have attracted much attention.

The first focus is on the market of the related products QQ, that is, before the outbreak of the 3Q War in 2010, QQ has competitors.

It is generally believed that e-mail, Sina Weibo, QQ and other Internet products, can meet the needs of people to communicate with each other, but its product characteristics and user habits are very different, it should belong to a completely diverse products. However, Tencent believes that e-mail, micro-blog and even mobile phone messages should be with QQ is a class of products, can be substituted between each other.

Tencent Expert Witness Qiping when it comes to the mutual substitution of products: from Dongzhimen to Xizhimen, you can walk, ride a bicycle, take the subway, and from Beijing to Shanghai you can take a van, take a plane, take a train. The conclusion is that these vehicles can be substituted for each other as long as they reach their destination.

Although QQ has 800 million users, he says, but QQ and mailbox, Micro Bo, SMS can replace each other, so in the instant messaging market is not a single QQ, "NetEase mailbox, Sina Weibo, operator SMS can be instant chat, use the mailbox if two people can send mail, the same chat effect." Micro-blog, SMS can also achieve the purpose of instant communication. So, how can I say QQ monopoly of the field of instant messaging? ”

In this connection, 360 lawyers retort that the law needs to be clear about the close substitution of the relationship, not everyone by the feeling of arbitrary substitution. 360 Lawyers For example: people usually thirsty to drink mineral water thirst, in the desert people thirsty, can drink beer thirst, may even drink horse urine thirst, but can not say beer and mineral water, horse urine can replace each other.

Weiying, an economist and professor of Peking University, argues that in the judicial practice, antitrust experts and judges use demand substitution, supply substitution, the assumption of Monopoly test ("Ssnip test") Three ways to define the relevant market, but each method is arbitrary. In antitrust cases, he argues, determining whether an enterprise is a monopoly is entirely a subjective judgment of the judge.

The second focus is on the local market, that is, QQ in which specific country market has reached a monopoly position. 360 The company believes that the relevant geographical market should be limited to the Chinese mainland's instant messaging market, according to Eric, Analysys and other Third-party market analysis reports, QQ in the Instant messaging market occupies the vast majority of the market share.

In this respect, Tencent argues that the relevant geographical market should be defined as the global market. Because of the characteristics of Internet products, they can freely flow in the global market, without taking into account the regional market characteristics such as language and culture. In other words, QQ should be placed in the global market to see whether it is a monopoly, MSN, such as U.S. competitors to kill QQ easy.

The third focus is on the question of time. 360 believe that to determine whether or not to abuse the monopolistic behavior, should focus on the situation of abuse, otherwise it will fall into an infinite cycle of time.

Qiping said that the rapid development of the Internet, such as micro-letter to QQ fast iterations, will certainly become an important competitor QQ, break the monopoly of QQ situation.

The fourth focus is on Tencent's "two election" behavior. The first-instance verdict of Guangdong High Court found that "two election one" was illegal, but did not impose any penalty on Tencent.

360 side said, November 3, 2010, Tencent let users choose QQ or 360, is a typical use of monopoly, abuse of market dominance of the behavior. According to the data, the number of users of Qihoo series software has fallen by 10%, affected by the 3Q war. Tencent side to the judge prompted the background of the matter, that year was 360 launched a privacy protector and buckle bodyguard, to make improper behavior, and due to legal limitations, Tencent had to make a self-protection of the "independent relief" behavior. At the same time, Tencent to judge special hints, "two election one" only appeared a day, "no monopoly."

"These two cases are really one thing. In the 2010, Tencent abused the market monopoly and tried to squeeze 360 out of the Internet security market by way of massive plagiarism and bundling. 360 has developed the buckle buckle bodyguard, to the user is optimizes the QQ the tool, to 360来 said, is opposes the Tencent monopoly, the plagiarism and the bundle weapon. "360 Companies in the" Enterprise Observation "reporter interviewed, said that some of the events, it happened because Tencent abused the market monopoly status, and 360 were forced to antitrust, anti-plagiarism, reverse binding. At present, China's internet industry monopoly is still not a big change. "We think that these two lawsuits, even if the final winners are not 360, can at least arouse the whole society's concern about the status of Internet monopolies." If it wins, it's not 360, it's the young and the entrepreneur in China, an antitrust triumph. ”

Obviously the target of 360 is to monopolize Tencent with a monopoly. Zhou that, "every five years in the United States every 10 years, a group of new people up." China did not, when we these people come in, the Internet is a virgin land. After ten years, the barriers have been set up, divided up. Now the Internet mainstream is basically whenever, no representative of the figure, 85 after I did not see who, not to mention. Such monopolies, if not broken, are detrimental to the country's soft power and the industry as a whole. ”

And for the topic of Monopoly, is the previous, Peking University Law and Economics Research Center specially held "from 360 v. Tencent case to see China's anti-monopoly Law" seminar. At the meeting, Schrocher, a joint director and researcher at the North University's Center for Legal Economics, said, "We have to be wary of the abuse of antitrust laws, which are exploited by market-competition losers, to fight against the winners of market competition." If they do not win the market, they go to court to accuse their opponents of monopoly or to push the issue to government officials. ”

As to whether there is a monopoly, Schrocher that there are several key points, including whether market access is unimpeded, there is no government intervention, and whether the threshold is low enough.

Schrocher said that the evil of Monopoly is the collusion of large enterprises, so that the output of products fall and prices rise, damaging consumer interests. However, in the field of Internet, many products are free, not because they are living Lei Feng, but the pressure of competition so that internet companies can not even set prices.

He pointed out that the anti-monopoly law, whether in the legislative, judicial, or judicial interpretation should be very cautious, because it may lead to false positives and false negative errors. "False positives are supposed to act against competition in the real world, but in practice this behavior does not damage the competition, but we mistakenly think it is harmful; false negatives are harmful, we let go, and this is another mistake." ”

Weiying, a leading economist and professor of Peking University, said that a large number of international antitrust cases are essentially local protectionism, which has been blocked outside by "antitrust". Domestic should not "deified" antitrust. "The Internet is full of competition, rapid development of the industry, the succession is very fast, no matter how large the scale, as long as not to advance will soon perish." In such a changing industry, there is no monopoly. ”

At the same time, Zhang also wrote in the media that the 3Q monopoly lawsuit was "a judicial farce brought about by an absurd law." In the article, weiying that the anti-monopoly law is "absurd law" because it is based on the mistaken definition of "competition" and "monopoly" in traditional economics, while traditional economics mixes competition and monopoly completely. Traditional economics defines competition and monopoly according to the number and size of enterprises in an industry: the more manufacturers, the smaller the size of each manufacturer, the fiercer the competition; Conversely, the smaller the number of firms, the greater the monopoly power of the industry.

Weiying that the traditional economics does not regard competition as "complete competition", and treats real competition as a "monopoly". The so-called "complete competition", in fact, there is no competition, because "complete competition" means that no enterprise has any competitive advantage: the production of products can not be different from others, product quality can not be better than others, the cost can not be lower than others, the price can not be higher than others, have more information than others. How can this be called competition? If an economy is really in such a state of "complete competition", there can be no progress in this society, because it is impossible for any new product to emerge.

Where does the Chinese Internet go?

Academic controversy for the ordinary netizens and even the Chinese Internet industry, may be difficult to distinguish between the moment, for them, how to more convenient and safer Internet? How to make some gains in China's internet industry may be a topic of great concern to many netizens and entrepreneurs.

Xingdong, a senior Internet expert, believes that no matter who wins or loses the lawsuit, it is of great significance to the Internet industry in China. This lawsuit allows these big internet companies to know where the boundaries of their behavior are, and to be more disciplined later.

Liu Xingliang, dean of DCCI Internet Research Institute, said that the 3Q War promoted an open platform for the Internet, which is actually a positive manifestation.

The following year of the 3Q War, May 31, 2011, 360 announced the opening of the Internet conference, announced the formal introduction of the 360° open plan, involving 360 full range of business. 360 also announced the establishment of 1 billion yuan innovation fund, such as four support policies: to provide free access to the standard API, free promotion, commitment to the highest proportion of web game share, the establishment of the developer Incentive Fund: Up to 100 million yuan, to reward individual developers, set up a 1 billion-yuan 360° innovation Application fund, investment in entrepreneurial innovation enterprises.

In 360 announced the opening two weeks later, Tencent announced the full opening of Tencent friends, QQ Space, Tencent Weibo, Tenpay, E-commerce, Tencent Search, color shell and QQ eight open platform.

"The more successful partners are, the more successful Tencent's open platform will be." Ma Teng said at the time. Tencent has also set up a 5 billion-yuan Tencent industry to win the mutual fund. Ma said at the Tencent opening meeting that the total size of the fund would then reach 10 billion yuan, and he hoped that the number of partners would increase from 20,000 to 100,000 in the first phase of opening up to "reinvent a Tencent". This means that Tencent will be the equivalent of its current one-year income of 20 billion yuan to the partners on its own open platform.

With the opening of the 3Q, China's internet industry has been eyeing the opening. Baidu, Ali, Shanda and other Internet bosses have also announced their own open road.

In fact, the 3Q war has also aroused the concern of relevant departments. On both sides of the Court of final period of December 3, that is, the last lawsuit of 3Q War, the Supreme People's Court of final appeal of Tencent's 360 deduction of the unfair competition case of bodyguards, meaning far-reaching. China Internet Association organized Internet-related enterprises signed the "Internet Terminal Security Service Self-discipline Convention" (hereinafter referred to as the Convention), the safety of the software behavior has made norms, and the unfair competition behavior has been clearly defined. More than 40 Internet enterprises have signed this agreement, including Tencent, Qihoo 360, Baidu, Sohu, Sogou, NetEase, excellent view, Jinshan, NetQin, Rising, jiangmin, thunder and so on.

In particular, the Convention emphasizes the protection of the legitimate rights and interests of users, requiring security software to protect users ' right to know and choose, to protect their personal information, to open various communication interfaces without permission and consent of the user, and to fulfill their social responsibilities.

The Convention expressly proposes that malicious exclusion, malicious interception and differential treatment are all prohibited. In the section on the prohibition of malicious exclusion, it was deliberately stated that no "intentional impediment to the installation or use of other legitimate products by a user or the use of any other lawful product or other legitimate terminal software" may not be used in any form.

"3Q litigation has played a cautionary role in China's internet industry. Liu Xingliang that in the future, the manufacturers will consider whether their behavior is appropriate in the competition, which is conducive to the healthy development of China's Internet.