The end of the 3Q war, the feelings are not monopolized

On the morning of October 16, the "3Q Wars" ended in the Supreme Law. In fact, the “3Q Wars Case” has already passed the Supreme Court’s second instance judgment on April 24 of this year, rejecting Qihoo 360’s appeal and upholding the judgment of the court of first instance—Qihoo’s company constituted unfair competition and ordered its compensation. Tencent’s economic loss and reasonable rights protection costs 5 million yuan.

Tencent reported for the first time, and 360 was spurned by Tencent's "imitation + binding" model. After the conclusion of the lawsuit, it was impossible to draw a full stop. This dispute shows the cruelty of the network monopoly. Under the oligopoly advantage, the small and medium-sized network companies have not had a chance to obtain a share of the Internet feast, and the legal gap of the anti-network monopoly is also in urgent need of reinforcement. .

As a front-line foreign aid in the “3Q Wars,” many people asked me what I think about this matter. My answer is that four years of disputes have resulted in a one-time verdict. Tencent proudly lost the guards. When both sides take dominance in social and security fields, the outcome is no longer important. What is important is that in the confrontation, Tencent moves from overbearing to openness, and 360 from unscrupulousness to human nature, both of which jointly deduced Internet companies for us. How to grow up crazy on this soil in China. The beginning of the story is a teasing, the process is a tease, and the result is a teaser. The most objective fact is that 360's sentiment lost to Tencent's monopoly.

Internet dominance has created Tencent’s monopoly

Dominant status refers to the exclusive status of one or several economic entities in a special market. Many countries are accustomed to using the “dominant status” or “dominance” of companies to indicate that the market is in a centralized state.

Under the premise of 360 in the name of “direct interest interested in another market but subject to monopolistic behavior” v. Tencent, the relevant market defined by the “3Q Wars Case” is the instant messaging market. According to the “China Instant Messaging Industry Development Report” released by iResearch, a third-party consulting company, Tencent’s market share reached 76.2%. According to Article 19 of the “Anti-Monopoly Law”, “One operator is in the relevant market. If the share reaches one half, it can be presumed to have a dominant market position." Therefore, Tencent’s dominance in the instant messaging market is unquestionable.

After determining the dominant position, we need to analyze Tencent’s two main actions in the “3Q Wars Case” to confirm whether it has abused its dominant position.

1, forcing users to "choose one": limited trading behavior

The limited trading can theoretically be classified as trade-discriminatory refusal to deal. Trade Discrimination means that companies use different trading conditions, methods, etc. to trade with equal status trading counterparties, or use different trading conditions, methods, etc. to influence competitors in an equal position. The purpose is to control the market. , and essentially undermines the order of market competition. Refusal to supply, also known as boycott, refers to the trade discrimination behavior of refusing to supply goods to one's own counterparty or purchase goods from one's own counterparty, or restricting the quantity or content of the goods or services traded, without justified reasons.

In the “3Q Wars Case”, Tencent released a “Letter to Most QQ Users” in November 2011. The essence of its content is to prohibit its users from using 360 software, otherwise it refuses to provide QQ software services. This is a kind of Limit the behavior of the transaction. The "Anti-Monopoly Law" clearly prohibits the operator from justifying the transaction. The counterparty can only deal with it or can only conduct transactions with the designated operator. Is Tencent justified? Tencent believes that its behavior does not constitute a restriction of trading behavior, but an act of self-help, for three reasons: First, the business model is damaged, commercial interests are damaged; second, user information, especially the relationship chain of friends is prompted to back up and touch QQ. The core competitiveness of software; Third, the user's information security is affected. However, Tencent’s approach is legally alleged to infringe on the fair trade rights and discretion of consumers. "There is a legitimate reason" or "without justifiable reasons". It cannot rely solely on strict legal judgments. It is more of a kind of value choice: Business interests or user interests are paramount. This is also one of the focuses of the "3Q Wars case" judgment. Personally, I think that from the perspective of long-term healthy competition and consumer protection, the “3Q Wars Case” should determine Tencent’s limited trading behavior as “unfair”.

2, "typing" behavior

The tying in the sense of anti-monopoly law means that when a company with dominant position in the relevant product market sells a product or service, the buyer is forced to accept the product or service irrelevant to the product or service, or the buyer is required to sign an acceptance. Product or service-independent products and services agreement. The “typing” in the “3Q Wars Case” is a tying in the Internet environment. The tying of Internet companies has different characteristics from the traditional industries. The difficulty of tying the Internet companies is far lower than that of traditional industries: intangible software products. Adding a new function requires only adding some program code. It does not bring too much cost to the company, it does not need to consume extra substantive resources, and the company can completely realize the tying even without changing the pricing. As a result, the tying phenomenon is very common in the Internet industry. Almost all companies that have gained a dominant position in a certain sub-industry are tying up or trying to promote the next tying product through existing advantages. Take Tencent as an example, with a large user base accumulated by instant messaging software, it has quickly entered portals, video, music sharing, e-mail, search engines, online games, Weibo, social networking, and group purchase, covering almost the Internet. All of the service features, some tying products on their own without the consent of consumers.

In the "3Q Wars Case", Tencent's tying is mainly reflected in its "QQ Computer Manager" and instant messaging software QQ bundled, and install "QQ doctor" in the name of grade software steward. Judging from Article 17 of the "Anti-Monopoly Law," it is forbidden to tying goods without justification, so the key point of the judgment still lies in whether Tencent has "justifiable reasons" to tie QQ Steward and QQ in together? 360 believes that QQ instant messaging software and QQ doctors are independent products, instant messaging products and Internet security software products to meet the different needs of users. The two bundles are simple overlays without any integration benefits. This behavior is mandatory and undermines competition.

Another thing to note is that if Tencent only bundles software and QQ that specializes solely in protecting the security of QQ accounts, it does not involve any other user's computer security services. This can be justified. However, the reality is that Tencent has crossed the border. It has plagiarised 360 security guards and released "QQ Computer Managers" with more security features. As a result, this bundled behavior is no longer "justified". This is subject to the "Anti-Monopoly Law." "Regulation of abuse of market dominance."

Tencent lost more

For 360, losing money, apologizing does not matter, it is important that 360 loyal users are still 360 loyal users, lose money and apologize can also affect it? 360 surrounded a large number of militants around, whether it is employees or users, apologies for losing money is nothing, it is important that Tencent beaten, and before Tencent hit others. You can think about it: There is one person who can't pick him up. At this time, there is a person who rushes to catch him, no matter what method he uses. Although he loses in the end. You can think about it. How do you think of this person in the future? Do you still think he is a hooligans? Maybe you think so, but what about others?

The 3Q Wars for 360 are far more than what they lost. First of all proved that Tencent is not invincible, although the last law let him win. Just like Sean. Parker said to Mark that they only won in court. 360 would never want to win or lose in court because it looks like he has never won in court. What 360 wants is people's heart. It has been like this from the very beginning of his establishment. In order to keep people happy, he can do everything, go to the main interface, kill portal ads, kill QQ ads, and so on. This is what 360 wants, and a piece of judgment cannot represent the people.

Tencent lost more than it got, although it won in court, but in other respects, it lost too much. The end of the 3Q event will also be the beginning of Tencent's decline. Although the 3Q war is over, but there will be countless 3Q battles in the future. If Tencent still accepts moves like before, it will certainly be abandoned by the people.