The advertisements before online video playback are called Pre Roll Ads, which are played before the audience views the video content. Usually presented in the form of short videos, advertisers pay video platforms to display their advertisements before the audience watches the video. Viewers need to watch the complete advertisement or wait for a few seconds before skipping the advertisement, which provides a source of advertising revenue for video operation platforms and content creators.

The mandatory and non skipping nature of video front advertising often leads to audience resistance towards advertising, prompting some users to seek to bypass advertising through blocking or filtering techniques to directly access their desired video content. This user demand has attracted the attention of browser and player developers, who are actively researching technological means to meet audience expectations. However, this behavior inevitably harms the profitability of video operation platforms. The topic of this article is whether it constitutes unfair competition and the focus of unfair disputes involved.

These focus issues include the following: 1) Is there a competitive relationship between video operation platforms and developers committed to removing video advertising; 2) Whether the pre inserted advertisement in the video is considered malicious and may harm the public interest; 3) Can blocking front inserted advertisements be considered in accordance with industry practice to obtain exemption from liability; 4) Can developers claim technology neutrality to obtain exemption from liability; 5) How to determine the compensation amount for illegal activities, and so on. These issues involve a complex balance between legal, moral, and commercial interests, and have a significant impact on the interpretation and implementation of relevant laws and regulations.

1、 Regarding whether there is a competitive relationship

In anti unfair competition lawsuits involving video operation platforms, browsers, and player developers blocking video advertisements, one of the developers usually refutes, stating that as a tool developer, they do not belong to the same industry as video platforms and do not have a competitive relationship, let alone engage in unfair competition behavior.

In anti unfair competition cases, determining whether a civil subject is considered a "competitive operator" should not be solely based on its identity or whether it belongs to the same industry, but should focus on its specific behavior; It should not be limited to the actual competitive situation, but should depend on whether the operator's business behavior has the possibility of "benefiting oneself at the expense of others". Specifically, it depends on the following two conditions: whether the operator's behavior has the possibility of harming the interests of other operators (i.e. whether it has the possibility of harming others); Will the operator obtain actual or potential business benefits based on this behavior (i.e. whether there is a possibility of self-interest). That is to say, if the operator's behavior not only has the possibility of causing harm to the interests of other operators, but also obtains actual or potential business benefits based on this behavior, then the two can be considered to have a competitive relationship.

In the (2014) Yizhong Minzhong Zi No. 3283 case of Youku (Heyi Company) v. Cheetah Browser, The court held that The video advertising filtering function of the accused Cheetah browser may not only harm the free video and advertising business activities of Heyi Company and the business benefits it brings, but also may enable Jinshan Network Company and Jinshan Security Company to gain more users and profits. Therefore, the accused behavior implemented by Jinshan Network Company and Jinshan Security Company has the possibility of harming others and benefiting oneself The company and Jinshan Security Company have a competitive relationship In the (2014) Haimin (Zhi) Chu Zi No. 21694 case of iQiyi v. Jilu (Jike Geek Company), although Jike Geek Company is a hardware company, The court held that Jike Geek Company comprehensively utilizes the 'Block Video Advertising' plugin and the 'Route' router to block pre film advertisements of videos on iQiyi website. This behavior will inevitably attract users of iQiyi website to use the above method to block pre film advertisements on the website, thereby increasing the commercial interests of Jike Geek Company and reducing iQiyi Company's video advertising revenue, leading to a trade-off in commercial interests between iQiyi Company and Jike Geek Company, As a result, iQiyi Company, which did not already have a competitive relationship, formed a competitive relationship with Jike Geek Company.

2、 Regarding whether it is a malicious advertisement

From the perspective of video players, mandatory advertising does indeed affect the viewing experience of users. However, considering the payment habits of domestic users, the business model of advertising and free videos has legal protection benefits. By paying the corresponding cost to provide various free video programs loaded with advertisements to attract users' access, and then obtaining profits from advertisers. The combination of advertising and video programs provides an orderly distribution and circulation of benefits between network operators, network users, and advertisers. This business model is also widely accepted by the market, and the widely adopted business model in the current video website industry is a legitimate business model.

Regarding whether internet advertising is malicious, relevant laws and regulations in China include the Advertising Law (latest version implemented in September 2015), the Internet Advertising Management Measures (implemented in May 2023), and the Internet Popup Information Push Service Management Regulations (implemented in September 2022). The above relevant laws and regulations mainly address pop-up advertisements, deceptive and misleading advertisements, and have made many regulations on the content of advertisements, without making special provisions for the front insertion of videos. However, malicious advertising often has the characteristics of damaging the integrity of website information and improperly interfering with users' normal browsing of web pages.

Although in current mainstream judicial practice, video front advertising is usually not considered malicious, this does not mean that all video front advertising should be considered normal and reasonable. If there are no certain restrictions and management on video front advertising, video operating companies may continuously increase the duration of advertising, thereby affecting the user experience. Therefore, the author believes that there is an urgent need to develop reasonable management norms to ensure effective management of advertising without compromising user experience.

3、 Industry Practice on Blocking Advertising

Most developers who are accused of blocking video advertisements often argue that their blocking of advertising behavior is industry practice. For example, in the Youku v. Cheetah Browser case, Cheetah Browser argued that browsers with ad filtering capabilities such as 360 Security Browser, Sogou Browser, and Aoyou Browser were already widespread, so blocking video ads should not be considered unfair competitive behavior. The trial personnel of this case believe that these browsers only block webpage advertisements and do not block video front inserted advertisements, so blocking video advertisements does not constitute industry practice.

The author tends to support the trial viewpoint in the "extreme route" case. Even if a certain behavior is widely adopted, if it is found to be illegal, it can only indicate that the illegal phenomenon is widespread, and cannot be used as a reason to prove the legality of the behavior. Industry practices cannot automatically legitimize their actions. Using "industry practices" as an excuse to condone illegal activities will only lead to the spread of illegal activities, damage the affected industry, and may even lead to its shrinkage or extinction. For example, traditional web pages that focus mainly on text content are easily blocked by browsers due to images or advertising content, which makes it difficult for article creators to profit, leading to an increasing decrease in text creation on the internet.

4、 About Technology Neutrality

Technology neutrality is often used as a defense in network infringement and unfair competition. Usually, technology neutrality refers to the fact that technology as a tool should remain neutral, but if its use is controlled by developers and providers, it is no longer protected by technology neutrality. Therefore, the key to correctly understanding the principle of technology neutrality lies in distinguishing between "technology itself" and "usage behavior" towards technology.

In the case of "extreme routing" blocking video advertising, the author strongly agrees with the opinions of the trial personnel. They believe that when dealing with the issue of technology neutrality, technology providers cannot be unconditionally blamed for the infringement consequences caused by technology, as this may stifle technological innovation and development. At the same time, technology neutrality cannot be absolutized and should not be simply used as a shield against legal liability. Instead, judgments should be made based on specific circumstances and market conditions. To determine whether a technology complies with the principle of neutrality, it is necessary to examine whether the technology provider has subjective faults that harm the legitimate rights and interests of others. This viewpoint accurately captures the essence of the principle of technological neutrality.

In the dispute over blocking video front advertisements, if technology developers or companies want their "technology neutrality" viewpoint to be accepted by judges, multiple factors need to be considered comprehensively. Firstly, the key is to determine whether the technology has a reasonable and beneficial use beyond blocking video front advertisements, which helps to demonstrate its technical neutrality. In addition, technology research and development companies should be established separately from technology usage companies to ensure that the development and use of technology are legally and morally independent of each other, and to avoid misuse of technology for unfair competition or infringement. Diversity is also crucial, and technology research and development companies should not only provide services to one technology user company, but should also widely serve different companies or markets, which helps to prove the universality and neutrality of technology. In addition, technology research and development companies should not actively participate in the promotion of specific technology usage methods, nor should they provide external introductions or Q&A to ensure that they are not related to specific usage methods or advertisers. Finally, the R&D personnel of technology research and development companies should not be confused with those of technology using companies. Separating the R&D and usage teams helps to maintain technology neutrality and prevent technology from being used for inappropriate purposes. These factors will help ensure that the "technology neutrality" claims of technology developers or companies are recognized in legal trials, while balancing technological innovation and the protection of legitimate rights and interests.

5、 Regarding the reasonable amount of compensation

The determination of compensation amount in cases of online unfair competition cannot simply use the traditional method of determining infringement cases, and should not mechanically rely on the overall profitability as the basis for calculating profits. The value of internet companies cannot be simply calculated based on their net assets, and the value of their unrealized market share should also be correctly evaluated. In the internet environment, the formation of a certain scale and relatively fixed user group means a huge profit margin, and even if this profit cannot be realized temporarily, it should be accurately estimated. Using unfair competition to increase the number of its own users or reduce the number of competitors' users should also be considered as a gain for the defendant or a loss for the plaintiff.

epilogue

When dealing with unfair competition cases such as blocking videos and inserting advertisements, it is usually the first step to protect the interests of video operating platforms. However, there are currently no legal regulations in place to define the duration and frequency of video front advertising, nor is it clear whether it may harm public interests, which requires attention from legislative and judicial bodies. For technology developers, it is crucial to take necessary organizational, technical, and personnel isolation measures if they wish to maintain technology neutrality and avoid being involved in unfair competition and infringement disputes. This helps to ensure that their technological development is not interfered with by external pressure and legal litigation, while promoting technological innovation and balancing legitimate rights and interests.