On November 3, the second-instance trial of Tencent's lawsuit against Tao mobile games unfair competition dispute, which has attracted much attention in the industry, was held, but the court did not announce the verdict in court.
Previously, Tencent's lawsuit against the game trading platform "Tao Mobile Game" for infringement was heard at the Chongqing Pilot Free Trade Zone People's Court. In the first instance, the defendant Tao Mobile Game lost the lawsuit, and Tao Mobile Game subsequently announced that it was not satisfied with the judgment and appealed.
It is reported that since the first instance did not find Tencent's lawsuit against Tao Mobile Games for infringement of the right to disseminate information networks and Tencent believed that the amount of compensation was too low, Tencent also appealed to the court.
It is understood that the core issues in this case are the ownership of the virtual property of the game, whether the Tao mobile game constitutes infringement, and whether the transaction services provided by the Tao mobile game constitute unfair competition.
Chen Ye, the litigation agent of the former Tao Mobile Games in the first instance and Chongqing Kangyu Law Firm, told Red Star News that this case is a cutting-edge case of the ownership of game accounts and the rationality of the trading platform, and in the context of anti-monopoly, it is expected to use judicial precedents to promote the definition of the ownership of rights in the Civil Code on virtual property rights, whether the trading platform violates the principles of voluntariness, fairness and good faith in this case, whether it violates the law or business ethics, and whether it has "unfairness" in the sense of the Anti-Unfair Competition Law. It is also the focus of attention in the industry.
↑ Dungeons & Dragons game screen.
Relevant experts said that online game account transactions, as well as third-party trading platforms that provide trading services, have existed for many years as an organic part of the online game ecology. Recognizing that game account trading is an objective demand, while strengthening the main responsibility of third-party trading platforms, standardizing operations, building a transaction security environment, retaining data in the transaction process, and assisting victims to protect their rights, it will keep transactions under an open and transparent environment and avoid the occurrence of various violations of laws and regulations.
The focus of the dispute in the second instance: Tencent may form a monopoly and the player's right to choose will be deprived
According to the first-instance judgment, from January 9, 2018, users traded "Dungeons & Dragons" game accounts, equipment and gold coins on the Tao mobile game platform. As of December 9, 2020, the number of orders related to "Dungeons and Warriors" traded by users on the Tao mobile game platform totaled 4,884, with a total transaction volume of 2,165,800.32 yuan, and the customer service fees and transaction fees obtained by Guizhou Zhiqu Network Technology Co., Ltd. (the parent company of Tao Mobile Game) for providing platform services totaled 185,001.31 yuan.
It was also found that the game involved in the "Dungeons & Dragons" has won many awards since it was released in Chinese mainland in 2008. By the end of 2016, the highest number of people online in the Chinese mainland of the games involved in the case exceeded 5 million.
In this case, the plaintiff alleged three acts of unfair competition, one was the defendant's act of providing services for the "Dungeons & Warriors" game gold coin transaction through the Tao mobile game platform (including the official website and mobile app); the second was the defendant's act of providing services for the "Dungeons & Warriors" game account transaction through the Tao mobile game platform (including the official website and mobile app); and the third was the defendant's act of promoting and promoting the "Dungeons & Warriors" game account and gold coin transaction through the Tao mobile game platform (including the official website and mobile app).
↑ The first instance held that the behavior of Tao mobile games disrupted the order of competition in the game market.
Tencent believes that the act of providing players with trading game accounts, game coins and other equipment infringed the plaintiff's right to disseminate art works online, endangered the security of the games involved in the case, undermined the fair and just game order in the games involved in the case, damaged the economic benefits of the plaintiff, and also harmed the legitimate rights and interests of other game players. At the same time, in the first-instance judgment, Tencent submitted a large number of testimonial materials, demanding that Tao mobile games stop the infringement and make compensation.
In the first instance, the People's Court of Chongqing Pilot Free Trade Zone ruled that Guizhou Zhiqu Network Technology Co., Ltd. should immediately stop providing services for the "Dungeons and Warriors" game account and gold coin trading through the Tao mobile game platform, and immediately stop issuing the "dnf mobile game merchant recruitment order" on the Tao mobile game platform, and compensate Tencent for 700,000 yuan.
"It's going to be a meaningful verdict." Lawyer Chen Ye said in an interview with Red Star that the case belongs to the dispute over the ownership of game accounts. The act of matching transactions and charging intermediary fees by platforms does not find similar precedents as a reference. From this point of view, this case has a very strong representative and will have an impact on gamers and game platforms.
↑The first instance held that players are obliged to abide by the rules of account use, etc.
Red Star reporters noted that in such disputes so far, the parties to the dispute have a large dispute over the ownership of virtual property such as game accounts. In this regard, the relevant person in charge of the Mobile Game told Red Star News: "The game account itself is blank, and it is given a certain value after the player spends energy. If the game company emphasizes that the game account belongs to the company and not the player through the standard terms and conditions it publishes, and restricts the player from trading the account, then this behavior is actually an infringement of the rights of the gamer. ”
For the core points of the dispute between the two sides, the relevant person in charge of Tao Mobile Game believes that Tao Mobile Game, as a third-party trading platform, does not directly participate in the transaction of the game account, but only matches the transaction and ensures the transaction security of the player. At the same time, such game trading has existed for more than ten years, and different trading platforms have appeared, indicating that they have been used as the basis for the existence of the market. This time, Tencent pointed the spearhead at Tao mobile games shortly after suing other platforms, so the final result may make Tencent form a monopoly and the player's right to choose will be deprived.
Expert view: Online game account management should be loose and not blocked
For this dispute case, Yao Huanqing, deputy director of the Civil and Commercial Legal Science Research Center of Chinese Min University and arbitrator of the International Trade Arbitration Commission, said in an interview with Red Star News that in this type of litigation, the core game point of the two parties is the issue of control (game accounts and derivatives). As a mobile game party, it believes that the rights enjoyed as a game user should be circulated in the market, and as a game developer, it will believe that although the user of the game has a certain right in the middle of the game, this right is only a use right and is subject to the limitation of the developer's rights. How to deal with such a problem has a lot to do with the business model and the overall social cognition.
"For example, the concept of this metaverse that has been very hot during this time, then in the future in this mode of metaverse, it will also require the interconnection of a digital identity." The interconnection under the digital identity, if it is to make such a series of rights restrictions, may bring very big problems. In the future development, this virtual property may have more recognition in the trading space of the market. ”
The reporter also noted that on December 5, 2020, Liu Chuntian, professor of the Law School of Chinese Min University, Li Renyu, professor of the Law School of Beijing Technology and Business University, and Qian Xingxing, professor of Peking University Law School, and others made arguments about the case.
↑ Legal expert opinion.
The three experts argued that the players of the Dungeons & Dragons game are the owners of virtual property such as game accounts, game coins and other equipment, and the terms in the Tencent Game License and Service Agreement that the ownership of the game account belongs to them and other game rules are standard terms, which deprive game players of ownership of game accounts, restrict the free transfer of virtual property such as game coins and other equipment, and damage, waste and detract from the overall wealth of society. It undermines the essence of the commodity and the order of market transactions, and should be invalid standard terms.
"The virtual property such as game accounts and other equipment attached to the game account shall belong to the player: the player pays the corresponding price to obtain the game account; the game currency and other equipment attached to the game account are the specific manifestations of the player's intellectual achievements and money investment; the game currency and other equipment attached to the game account have use value and exchange value, and are in line with the attributes of the property."
↑ Legal experts believe that the game account and its affiliated virtual property should belong to the player.
Regarding the infringement of Tao Mobile Game, the legal argument will conclude that in the process of the normal exercise of their trading rights by players, the services provided by Tao Mobile Game are in line with the scope of business, and at the same time, the players set their own prices, and Tao Mobile Games does not have the right to decide on the pricing of virtual property, so the act of publishing virtual property transaction information such as players' game accounts, game coins and other equipment on the Tao Mobile Game platform does not constitute infringement.
Recently, around the rights and interests of online game accounts and operation management issues, the regulatory authorities and academic circles have launched a heated discussion.
Red Star News noted that Xue Jun, a professor at Peking University Law School and director of the Peking University E-commerce Law Research Center, pointed out in an article entitled "Online Game Account Management Should Not Be Blocked" published on the Rule of Law Daily-Legal Network that online game account transactions, as well as third-party trading platforms that provide trading services, as an organic part of the online game ecology, have existed for many years, meeting the objective market demand, and through the market transaction mechanism, to achieve users' demands in terms of rights and interests.
Xue Jun believes in the article that for the objective needs of online game accounts, it is advisable to dredge and not block. "Blocking" will only make game account transactions go to an undisclosed, opaque, and non-standardized black box, but it will lead to bad results such as fraud and poor rights protection. In contrast, if you adopt the management idea of "sparseness", recognize that game account trading is an objective demand, and at the same time strengthen the main responsibility of the third-party trading platform, standardize operations, build a transaction security environment, retain data in the transaction process, and assist victims to protect their rights, it will put the transaction in an open and transparent environment and avoid the occurrence of various violations of laws and regulations.
Red Star News reporter Ren Jiangbo intern Zhao Yu
Edited by Zhang Xun
(Download Red Star News, there are prizes for the newspaper!) ）