obscenity) [Name of a crime recognized to Defendant A]

Promotion of Information and Communications Network Violation

(Porn obscenity)

B. Violation of the Copyright Act

2.(a) B

3.2.(b) C

Attorney AP, AP, Q

Law Firm D (Defendant B)

Attorney E

A. Defendant A and C

1) misunderstanding of facts and misapprehension of legal principles

(2012 Highest 9907 obscenity) The essence of the web site operation is to provide commercial profits to the users who operate the web site. As such, Defendant A’s payment of points of KRW 1,500,000 to Co-Defendant B’s monthly pay to Co-Defendant B the monthly fixed amount is merely a proper operation method, not aiding and abetting Co-Defendant B’s distribution of obscene materials, and it cannot be deemed that Defendant A’s intentional aiding and abetting Defendant A in light of Defendant A’s obscenity’s obscenity and control efforts.

(2012 high-level 10811 Copyright Act) ① The essence of the operation of the web network to provide commercial benefits to the web network users. If the web network operators interpret that the ‘direct monetary benefits' under Article 102(1)3 (b) of the Copyright Act includes general commercial benefits that they gain by operating the website, all of the web network operators can not be eligible for exemption from liability under the above provision. Therefore, the above commercial benefits should not be included. Therefore, the Defendants should be exempted from liability under Article 102(1) of the Copyright Act. ② Article 40(1) of the Enforcement Decree of the Copyright Act provides that “In order to request the suspension of reproduction and transmission by the claimant to the right under Article 103 of the Copyright Act, the Defendants did not have to submit the request to the online service provider for suspension of reproduction and transmission.” Therefore, the claimant to the right should have prepared a request for suspension of the reproduction and transmission of the copyrighted works in accordance with Article 102(1)3 (b) of the Copyright Act, which is a mandatory provision, and should have not received such request from the Defendants.

2) Unreasonable sentencing

In light of the fact that the claimant to a right did not request a legitimate suspension of reproduction and transmission, the Defendants took all the best steps to stop the reproduction and transmission, and the Defendants’ respective punishments (Defendant A: a fine of KRW 10 million, Defendant C Co., Ltd.) that the court below sentenced against the Defendants are too unreasonable.

B. Defendant B (unfair form of punishment)

In light of the fact that the bulletin board operated by the Defendant was operated under the support of Defendant C Co., Ltd., and that the Defendant, not opened the above bulletin board from the beginning, was in charge of the above bulletin board at the request of the full-time officer, he was in charge of the above bulletin board, etc., the sentence (two years of imprisonment with prison labor, eight months of probation, and two years of probation) of the

2. Determination

A. Determination as to the assertion by Defendant A and C

1) Judgment on misconception of facts and misapprehension of legal principles

A) Determination as to Defendant A’s assertion on aiding and abetting the distribution of obscene materials

According to the records, Defendant A, within “I”, who is one of the web auxiliary companies run by Defendant A, has become a major part of the company sales. Although the operation of the above club was aware that the operation of the club would raise profits by raising obscene videos and receiving them from other members, Defendant A, who is the above club operator, paid KRW 1.5 million as monthly activity expenses and divided profits generated from the operation of the club in order to maintain the company's sales increase, and this act constitutes aiding and abetting the distribution of obscene materials, and Defendant A had the intent to assist the distribution of obscene materials. Thus, Defendant A's assertion on this part is without merit.

B) Determination on the Defendants’ assertion on aiding and abetting violation of the Copyright Act

① First of all, according to the evidence duly submitted by the prosecutor, the Defendants are acknowledged to have earned profits through paid points in the course of downloading and downloading from the copyrighted work. This constitutes a case where the Defendants obtained a “direct monetary profit” under Article 102(1)3 (b) of the Copyright Act. Thus, the Defendants’ assertion is not acceptable on the grounds that there is no reason for different interpretation by deeming it as the essential part of the operation of the web live.

(2) Next, in light of the fact that the legislative purpose of the Copyright Act regarding the request for the suspension of reproduction and transmission by the right holder is to protect copyright, etc. and to improve and develop culture and related industries by blocking illegal forwarding of copyrighted works, etc., even if the right holder did not make a request for the suspension of reproduction and transmission by preparing the forms prescribed by the relevant Acts and subordinate statutes, the online service provider should take measures to stop when he/she became aware of the fact of infringement other than at the request of the right holder, etc. In light of the fact that the online service provider should take measures to block illegal forwarding of the relevant copyrighted work at the request of the right holder, and it is not necessary to require the online service provider to take measures to prevent illegal forwarding of the relevant copyrighted work at the request of the right holder, as alleged by the Defendants, and that the obligation of the online service provider to suspend reproduction and transmission does not occur unless the subordinate law does not comply

Finally, in light of the following circumstances acknowledged by the evidence duly adopted and examined by the court below, namely, the right holder requested the suspension of reproduction and transmission of copyrighted works by proxy around February 17, 2012 and around December 2010, and the Defendants registered the English name of copyrighted works and the Korean title of copyrighted works widely known by the right holder upon receiving a request from the right holder to suspend reproduction and transmission in a closed language, etc., the Defendants can be recognized as having known the fact of infringement of the right holder’s right and all facts of violation of the duty under Article 104(1) of the Copyright Act. Thus, the Defendants’ assertion is without merit.

2) Determination on the assertion of unreasonable sentencing

The defendants made own effort to prevent the distribution of illegal copyrighted materials by entering into a contract with DNA Ting company in order to prevent illegal copyrighted materials from running, and the fact that it seems not easy for the right holder to confirm and suspend all of the web location information while requesting the suspension of reproduction and transmission. However, the act of inducing users to download illegal copyrighted materials, such as aiding and abetting the violation of the Copyright Act, in fact, inducing users of a large scale of damage to infringe on a large number of unspecified copyrighted property rights, compared to the crime of violating other Copyright Act. In the case of Defendant A’s crime of aiding and abetting the distribution of obscene materials in this case, the distribution of obscene materials through the information and communications network may have a large degree of social harm caused by its dissemination, which may have a large number of unspecified users, and thus, it is not good that the crime is committed, and the circumstances of the crime in this case, the circumstances before and after the crime in this case, the circumstances of Defendant A’s age, character, and behavior, and the circumstances of each of the instant offenses are considered to be unfair.

B. Determination on Defendant B’s assertion of unreasonable sentencing

Although the defendant's mistake is recognized and reflected, the distribution of obscene materials through information and communications networks is highly harmful to society due to the facilitation of the dissemination thereof, which may have a significant impact on many and unspecified users, and the nature of the crime is not good. The defendant acquired a large amount of profits through the crime of this case, and other circumstances that are conditions for sentencing indicated in the records, such as the defendant's age, occupation, environment, personality, conduct and family relationship, in consideration of the fact that the defendant's punishment imposed by the court below is too unreasonable.

3. Conclusion

Therefore, the defendants' appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act since all of the appeals are without merit.

Judges Kim Hyun-deok

Judge Senior District Court