According to the records, the following facts are recognized.

A. The offender is a “online service provider of a special type” as prescribed by Article 104(1) of the Copyright Act (hereinafter “Act”) (the main purpose of which is to transmit copyrighted works, etc. between other persons by means of computers), and operates the Internet site (Internet address omitted) called “○○” (Internet address omitted).

B. From June 23, 2010 to June 30, 2010, the Copyright Protection Center under the Federation of the Korea Copyright Organization, which was an incorporated association, selected 50 out of 429 game games that were requested by the right holder to “necessary measures, such as technical measures to block illegal forwarding,” under Article 104(1) of the Act from the right holder and monitor them. After monitoring the above site from June 23, 2010 to June 30, 2010, the Minister of Culture, Sports and Tourism notified the Minister of Culture, Sports and Tourism of the result of monitoring that 35 out of 50 game games for which the request for implementation of technical measures to block illegal forwarding was made. The Minister of Culture, Sports and Tourism imposed an administrative fine in accordance with Article 104(1) of the Act on July 26, 2010 and Article 104(1)04 of the Act.

C. On December 3, 2010, the court of first instance rendered a summary decision that imposes an administrative fine of KRW 14,00,000 on a violator on the said disposition, upon objection by the violator. The violator raised an objection against the said summary decision, and the court of first instance rendered a decision of the first instance to impose an administrative fine of KRW 9,80,000 on April 4, 201 after going through examination procedures.

2. Relevant statutes;

It is as shown in the attached Form.

3. The assertion of the offender;

A. unconstitutionality of the criteria for imposing fines for negligence

The criteria for the imposition of fines for negligence under attached Table 1 of Article 77 of the Enforcement Decree (hereinafter “the criteria for the imposition of fines for negligence”) cannot be deemed to be based on the authorization of the law, and the “unexplosived rate” under the above criteria is an unclear standard with no statutory provisions. In addition, the above criteria not only impose fines for negligence according to the unexplosive rate established uniformly without considering the characteristics, such as each type of work, file format, etc., and the practical technical limit, but also demand a pening that completely cut off the illegal transmission of individual copyrighted works, and thus, contravenes the principle of proportionality, the principle of equality, and the principle of excessive prohibition.

Therefore, it is illegal to impose administrative fines on the basis of the instant imposition criteria.

B. Illegality of monitoring procedures and methods

In the monitoring procedure by the Copyright Protection Center, such as the selection of a work subject to monitoring, there is no opportunity for online service providers, such as the violator, to participate or explanation. In addition, at the time of the instant monitoring, the Copyright Protection Center has selected illegal and superior game works as a copyrighted work subject to monitoring, and in such case, it is apparent that the selection criteria are much higher than the actual one.

As above, monitoring for a specific work is unfair without guaranteeing the procedural participation right of the offender. Therefore, it is unlawful to impose a fine for negligence on the basis thereof.

(c) implementation of technical measures;

A violator has performed technical measures provided for in Article 104(1) of the Act to the extent possible. Notwithstanding such measures, technical and factual limits have not prevented illegal transmission of the game of this case due to its technical and factual limits.

(d) Wrongful method of calculating the ratio of blocking;

The Minister of Culture, Sports and Tourism set up a fine for negligence based on the fact that 35 copies of a file were downloaded in 35 times, and 35 copies were not cut off and downloaded, making it possible to download them more than 70%. However, such calculation method is contrary to the principle of trust protection, different from existing practices, and if a work is not cut off from a single file, the unused rate should be 2% (one of 50 files).

4. Determination

A. unconstitutionality of the criteria for imposing fines for negligence

Article 104(1) of the Act provides that "matters concerning necessary measures shall be prescribed by Presidential Decree," Article 142(3) provides that "the Minister of Culture, Sports and Tourism shall impose and collect fines for negligence, as prescribed by Presidential Decree," and delegates the specific contents of the cause and criteria for imposition of fines for negligence to Presidential Decree. The standards for imposition of fines for negligence are clear that they are by the authorization of the above provisions. Thus, it cannot be said that there is no legal basis for the standards for imposition of

Next, in full view of the legislative purpose of the Copyright Act, the legislative history and legislative intent of the provisions of this case, and the copyright, etc., which are the author’s right regarding the “works,” the unbundled rate prescribed in the instant imposition standard, refers to the ratio of works not interrupted by technical measures among the works requested by the right holder. Thus, it cannot be said that the concept of unbundled rate prescribed in the instant imposition standard is unclear or that it exceeds the scope of delegation by the law.

In addition, Article 104(1) of the Act imposes an obligation on a special online service provider to take necessary measures, such as technical measures that block illegal transmission of the relevant work, in certain cases, and Article 142 imposes an administrative fine if the provider violates such obligation, and accordingly, the standard of imposition of administrative fine is set on the basis of the rates of blocking. The above provision is imposed only on the service provider who fails to implement technical measures, but does not require a pening to completely block the illegal transmission of individual copyrighted works regardless of whether he/she has fulfilled the obligation to take technical measures. The standard of imposition of this case also provides for the substantial exemption clause in certain cases (not more than the rate of blocking 5%) and provides for the increase or decrease within the limit of 1/2 of the standard amount in consideration of individual circumstances, such as the degree of efforts to block illegal reproductions, etc., and all characteristics and technical limitations of each file type, etc. are considered to be in violation of the principle of proportionality and the principle of proportionality.

Therefore, the argument of the offender on the premise that the imposition standard of this case is unconstitutional and illegal is without merit.

B. Illegality of monitoring procedures and methods

Pursuant to Article 104 of the Act, an online service provider of a special type of online service bears the duty to take measures to block illegal transmission of the relevant work at the request of the holder, regardless of which work is a copyrighted work, as well as appeals procedures such as filing an objection against administrative fines that may be received in the event of a violation. Furthermore, the mere fact that monitoring was conducted for 50 game works with a higher ratio of illegal distribution among the games for which the holder of a right requests technical measures at the Copyright Protection Center cannot be said to be unlawful.

The above assertion by the offender is without merit.

C. Whether technical measures are implemented

Article 104(1) of the Act provides that online service providers whose main purpose is to transmit works, etc. by means of computers between other persons shall take necessary measures, such as technical measures to block illegal transmission of the relevant works, etc. upon request of the right holder. The legislative purpose is to strengthen the protection of copyright holder’s infringement rather than to limit the responsibility of the online service provider like the violator. In the case of the special online service provider operated by the violator, there is a risk of infringing copyright at all times and there is relatively high possibility of infringement. In this regard, Article 104(1) of the Copyright Act requires that the former part of Article 104(1) of the Copyright Act has a system capable of taking technical measures for infringing copyright, and online materials may be transmitted and reproduced at a rapid speed within extremely short time. In light of the fact that there is a concern that if effective search restrictions and transmission restrictions on copyrighted works, etc. are not accompanied, the effectiveness of the aforementioned provision can be determined only when the violator is seriously deprived of the right holder’s obligation at the time of implementation of the Copyright Act.

According to the records of this case, in order to prevent illegal transmission and reproduction of copyrighted works, the violator may enter into an online service provider contract with the UN, applying such technical measures to the online site, and concurrently takes complementary measures such as monitoring or ex post facto sanctions against users. However, in the case of an online service provider, such as the violator, there is always a risk of infringement on copyright, and there is a duty to take technical measures for the protection of high-level copyright, and as a result, the failure to block copyrighted works exceeds 70% as a result of the monitoring of this case, it cannot be said that the violator took technical measures to block illegal transmission of the relevant copyrighted works, etc. by doing his best to the extent of the technical level at the time as at the time of the provider of online service.

Therefore, the above argument of the offender is without merit.

(d) Wrongful method of calculating the ratio of blocking;

According to the records of this case, as a result of monitoring the online site operated by the violator, the Minister of Culture, Sports and Tourism finds out the fact that 35 copyrighted works on the △△△ Game (198 Chinese characters) file are not blocked and that it is possible to download, and then it can be recognized that the 70% (i.e. 100 x 35/50 x 35/50) of the aforementioned online site was calculated.

As a creative work expressing human thoughts and emotions, the concept of a work is different from the file, so if it is found within a single file that 35 copyrighted works are not interrupted and that it is possible to download, it is reasonable to calculate the ratio of blocking based on the number of copyrighted works that have not been cut off, and there is no reason to view that the existing practice differs from this, the offender’s assertion is without merit.

E. Sub-decision

The argument of the offender is without merit, and there is no reason to view that the amount of the fine for negligence is excessive.

5. Conclusion

Thus, the decision of the first instance court is legitimate, and the appeal of this case is dismissed as it is without merit.

[Attachment]

Judges Doese (Presiding Judge)