Many players who often play games must have heard of third-party game trading platforms, and even often use third-party game trading platforms themselves.
With the development of the domestic game industry, the number of gamers continues to increase, and the demand for game accounts and virtual props trading has also increased. Therefore, in addition to the official game trading platform, the third-party game trading platform has also taken the opportunity to take off. Third-party game trading platforms such as Trading Cat, 5173, and UU898 have all embarked on the fast track of development with the momentum of the game industry, and have also brought a lot of convenience to players.
However, third-party game trading platforms have recently suffered a cold winter, because Tencent has sued the mainstream third-party game trading platforms in China one by one for unfair competition.
1. What is a third-party game trading platform
The game trading platform belongs to one direction of e-commerce, and its business type is specifically to provide related trading services for online games, including game account trading, virtual prop trading, substitute training and other game service transactions. The game trading platform was originally aimed at the C2C trading model, when the game player traded game props, it may be affected by the transaction limit, handling fee and other rules in the game's official trading mechanism, and choose to bypass the official mechanism for private transactions; but the transaction between players and players often lacks credit guarantee, so the game trading platform came into being.
Initially, the game trading platform played the role of a communication channel and buffer mechanism for trading between players, and after more than ten years of development, today's game trading platform provides more abundant services.
However, a series of unfair competition lawsuits filed by Tencent against game platforms in recent years have undoubtedly brought a huge shock to the industry. The defeat of the game trading platform "Tao Mobile Game" indicates the cold winter that the third-party game trading platform may face.
2. Providing game trading services, third-party platforms were sued
Guizhou Zhiqu Network Technology Co., Ltd. is the parent company of the "Tao Mobile Game" game trading platform. The website of the "Tao Mobile Game" platform introduces that the platform business department "helps players dispose of idle game property". Since January 2018, the platform has provided game accounts and virtual prop trading functions for the online game Dungeons and Dragons (DNF), and as of December 2020, the cumulative transaction volume of DNF under the platform has exceeded 2 million yuan.
DNF is a game product of Tencent, and mainstream game trading platforms such as 5173 provide third-party trading services for the game. Due to the large number of gamers and the huge demand for virtual item trading, the DNF game trading business constitutes the main business of each third-party trading platform. Previously, Tencent did not take corresponding measures against the phenomenon of third-party game transactions, but since the end of 2020, it has sued various third-party trading platforms to the court to stop unfair competition.
Tencent's basis is that, according to the Tencent Game License and Service Agreement between Tencent and the Player, the ownership of game accounts and game virtual data belongs to Tencent, and the user only enjoys the right to use. The Agreement expressly stipulates that players shall not provide game accounts, props, equipment, etc. to others for use in any way. Tencent believes that the third-party game trading platform has caused damage to the operation of the game itself and the interests of players, disrupted the order of competition in the game market, and constituted unfair competition.
3. The court upheld Tencent's claim, and the judgment result caused controversy
In the case of Tencent suing a third-party game trading platform, the main focus of the dispute was whether the player had the right to freely dispose of the game's virtual data. Tencent believes that it is the owner of virtual data, and the third-party platform supports players to trade and profit from data owned by Tencent, which harms Tencent's interests and induces players to violate user agreements. The game platform side often believes that the restrictions in the user agreement on the user's transaction of virtual property are not reasonable, and the player has the right to freely dispose of his account data.
Judging from the judgment, the court supported Tencent's claim that the court of first instance in this case ruled that the Tao mobile game platform constituted unfair competition. At present, Tao Mobile Games has closed the game trading section of DNF.
Previously, Tencent's lawsuit against the DD373 trading platform for infringement of the right to disseminate information networks was also tried in public online. At the same time, Tencent also sued a number of other online game trading platforms, launching a "wheel war". The defeat of "Tao Mobile Game" means that in this wheel war between Tencent's three-party trading platforms, Tencent is on the more favorable side.
Nevertheless, the Court's decision remains controversial. This decision means that the User Agreement will allow players to have access only to game accounts and virtual items, and not to freely trade relevant game data. Whether it is the "Tao mobile game" that appealed after losing the lawsuit, or the majority of gamers and other game manufacturers, as well as legal community, they have raised their own questions about this judgment.
4. Can the player's virtual props be freely disposed of?
Players create game accounts and invest a lot of time, effort and even money to create their own game characters, because a user agreement can not be freely disposed of? This problem needs to be analyzed from multiple dimensions such as the nature of game accounts and virtual props, the validity of user agreements, and relevant legal provisions.
First of all, game accounts and virtual props belong to the virtual property of the network.
Although it does not have a physical entity, game accounts and virtual props not only have use value, but also have transaction value, so they have the attributes of property. At present, there are many opinions on the definition of online virtual property, but it is clear that online virtual property has the following characteristics: using the information network as the carrier; taking the physical property as the endorsement, it can be exchanged with the physical property limited or freely; there are the attributes of property rights; and there is a clear ownership of rights.
Since network virtual property has the attributes of property and can correspond to the value of physical property, there have long been calls for the protection of network virtual property. Article 127 of the Civil Code also provides in principle for the protection of virtual property.
Second, the player has the right to freely dispose of the game's virtual props.
Game accounts and virtual props have corresponding use value and transaction value, which should be protected by law, but there is a dispute over the ownership of their rights, the core of which is whether the player has ownership of the virtual property.
In the Tao mobile game case, Tencent deliberately downplayed the essence of its virtual property by describing game accounts and virtual props as "virtual data". However, it cannot be ignored that since consumers use labor or money to obtain virtual props in the game and create characters in the game account, they should not deny that the player possesses, uses and disposes of the props through a third-party trading platform, let alone deny the player's ownership of the game account and virtual props.
From the perspective of industry practice, at present, other game manufacturers other than Tencent almost all recognize the rationality of the existence of third-party game trading platforms, which also means that the free disposal of virtual property and game accounts by players has become the industry practice. Tencent's claim is difficult to gain a foothold in terms of legal basis and industry practice, and players should have the right to freely dispose of virtual property.
Third, can the User Agreement restrict the player's disposition of virtual property?
In the lawsuit, Tencent used the user agreement as the "big stick" to sue the game trading platform. However, the User Agreement itself is a standard term unilaterally formulated by Tencent, and the restrictions on users' transaction of virtual props in the relevant provisions constitute a derogation of user rights, and Tencent shall perform the obligation of prompting or explaining. In reality, Tencent did not fully prompt the user to explain that the player could claim that the standard contract clause was invalid.
In addition, from the perspective of contractual fairness, the user obtains the account number or virtual prop of the game after paying money or equivalent to the labor of certain property, but cannot enjoy the ownership of the virtual property and dispose of it. From this point of view, the user agreement restricts the player's disposal of game accounts and virtual props, which is also suspected of being unfair.
Finally, the current legal provisions have not been refined.
Although Article 127 of the Civil Code of the Mainland provides for the protection of virtual property in principle, the specific legislation is still blank. In terms of the legal attributes, rights content, legal relationship and adjustment mechanism of the game's virtual props, there is a lack of sufficiently detailed legislation to answer the current confusion.
5. Summary
Third-party game trading platforms play a unique role in the game industry and play a positive role in maintaining the stability of the virtual market for game props trading and improving the player's game experience. The development of game trading platforms is a win-win situation for game operators, game users and the platform itself. Tencent v. Tao Mobile Games not only upset this long-standing delicate balance, but also posed new challenges to the court on legal issues related to virtual property transactions.
The court's judgment in this case is debatable, reflecting the complexity of legal issues in the new field of virtual property transactions, and also exposing the gaps in legislation related to the protection of virtual property. On November 3, 2021, the second-instance trial of Tencent's lawsuit against Tao mobile game unfair competition dispute was held, and the court did not announce the verdict in court. What the future prospects for the survival of the game's third-party trading platform and how the legislation for virtual property protection will be carried out remains to be seen.
【Source】 Zhang Yutao
【Tweet Typography】 Zhu Qing
【Reference Articles】
[1] Southern Metropolis Daily: "Game trading platform Tao Mobile Game sued by Tencent, and the ownership of game accounts has again attracted controversy"
[2] iNews New Knowledge Technology: Tencent's Monopoly and Anti-Monopoly, the 20 Billion Virtual Trading Market That Was Eaten
[3] Tao Mobile Game: Statement on Tencent's Lawsuit against Tao Mobile Game for Unfair Competition