[2] In a case where Defendants were indicted for violating the former Computer Program Protection Act by nullifying the technical protection devices of the substitute driving ship program developed and registered by Gap corporation using their development programs, the case affirming the judgment below which acquitted Defendants on the ground that both technical measures Gap company and Gap company did not constitute "technical protection measures" under Article 30 of the same Act, on the ground that they merely correspond to access control measures for programs and cannot be seen as "technical protection measures"

[2] In a case where Defendants were prosecuted for violation of the former Computer Program Protection Act (amended by Act No. 8032 of Oct. 4, 2006) by nullifying the technical protection devices of the ADB program, which is the program developed and registered by Gap corporation, using the ADA screen program, the case affirming the judgment below finding the Defendants not guilty of technical protection measures provided by Article 30 of the same Act on the ground that: (a) Gap corporation’s implementation of ADB program and AD call program at the same time does not allow ADB program to immediately terminate the AD program; (b) measures other than the basic program automatically implemented at the time of PDA driving; (c) measures taken to prevent the operation of ADA program at the same time; and (d) substitute driving technicians, etc. only if users such as ADA physically put the AD screen screen physically; and (d) such measures do not constitute access control measures with respect to AD program; and (e) such measures do not constitute effective infringement of copyright rights to the program.

1. The main text of Article 30(1) of the former Computer Programs Protection Act (amended by Act No. 8032, Oct. 4, 2006; hereinafter “the Act”) provides that no person shall circumvent technical protection measures without legitimate authority by means of avoidance, removal, damage, etc., and Article 46(1)3 of the Act provides that a person who violates the above provision shall be subject to criminal punishment. However, in full view of Articles 2 Subparag. 9 and 7 of the Act, “technical protection measures” refers to measures that effectively prevent infringement of a program author’s copyright, such as publication right, right of attribution, right of integrity and right of program maintenance and program reproduction, alteration, translation, publication, and transmission right, and program copyright (see Supreme Court Decision 2004Do2743, Feb. 24, 2006; 2004Do2743, Feb. 24, 2006).

In light of the above legal principles and records, the measures taken by Nonindicted Co. 1 (hereinafter “Nonindicted Co. 1”) to immediately terminate the Adiveer program when the Adiveer program and Adiveer program are simultaneously implemented, the measures taken to prevent the Adiveer program from being operated at the same time other than the basic program automatically implemented at the time of PdA hosting, and the measures taken by Nonindicted Co. 1, as stated in the facts charged of this case, to make the Adiveer program operated only when the users, such as the proxy driver, etc., physically use the PdA screen, are not access control measures that allow access to the Adiveer program, and it is difficult to view it as measures to effectively prevent any infringement on the Adiveer program, and such measures do not constitute “technical protection measures” as stipulated in Article 30 of the Act.

The court below is just in maintaining the judgment of the court of first instance which acquitted Defendants on the violation of the former Computer Programs Protection Act, and there is no error in the misapprehension of legal principles as to "technical protection measures" under Article 30 of the Act, as otherwise alleged in the ground of appeal.

2. The court below affirmed the judgment of the court of first instance which acquitted the Defendants on the charge of obstruction of business on the ground that the Defendants’ act of changing the implementation file, etc. of the EA call program as stated in the facts charged alone cannot be deemed as constituting “defensive means” which is an element of the crime of interference with business against Nonindicted Company 1. In light of the records, the above judgment of the court below is just, and there is no violation of law of free evaluation of evidence in violation of

3. Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)