소프트웨어 끼워팔기의 규제

Abstract

In Korea, there is no room for applying per se rule to tying arrangements because we, like EU, impose restrictions on only evils, which means that 'abuses' of market dominant position are prohibited. We balance anti-competitive effects against the efficiency that can surpass them by rule of reason. So far, as regards software tying, competition authorities have had concerns on network effect and thereby tipping effect, and so focused on the prevention of the leverage of market dominance by a dominant undertaking. It is notable, however, that in the U.S. where traditionally per se rule has been applied to tying, there are attempts to apply rule of reason to tying, especially to software tying. They are based on the argument that at least in software industry, it's probable that efficiency, such as the development of innovative technology, exceeds anti-competitive effects of tying and so if this tying is treated as illegal tying, technology innovation is likely to be impeded. This point must be taken into positive consideration when the efficiency of tying is weighed against anti-competitive effects in Korea and EU. Separate products issue, which is the most controversial among the requirements of tying, should also be considered in the same context. Although we can't entirely ignore the consumer demand test that has been a dominant one until now in many countries, as Washington D.C. circuit court suggested, we can't deny that this backward-looking test has limits in being applied to innovative new technology products and that software industry is one of the fields where this innovative new technology is most likely to appear. Accordingly, to prohibit software tying in spite of 'genuine technological progress' will hamper technology innovation and consequently harm consumer welfare by neglecting the characteristics of software industry and adhering to the past consumer demand test.