[2] Where an online service provider posted articles and photographs of Internet media service users on the open community service bulletin board established on his/her website without permission, the case denying the online service provider's responsibility for aiding and abetting copyright infringement by the service users

[3] The case holding that an act of online service providers, while providing the list of news articles and the service of guiding information about their members, reduced the news articles photographed by Internet media business operators in a small size and posted them at a small size, constitutes "a quotation of works made public" as stipulated in Article 25 of the Copyright Act

[2] The case holding that it is difficult for an online service provider to recognize the responsibility of aiding and abetting copyright infringement by the online service provider on the ground that the online service provider posted online media service users' articles and photographs on the open community service bulletin board established on his own website without permission, and the above service does not mainly aim at sharing the online media service providers' articles and photographs, and does not provide special functions that facilitate copyright infringement in addition to the bulletin board function, and there are no circumstances to see that the online service provider indirectly participates in copyright infringement by posting more than one new post every day, and it is difficult to grasp whether the copyright infringement was committed on a daily basis, and that the online service provider has suspended the above service by itself after raising the problem of the Internet media service provider

[3] The case holding that where online service providers directly connect the web page where the online service provider posted the relevant news articles and photographs to their own web site without permission and provide users with information about the contents of the web page, where users selected a reduced photograph, they look at the original photograph posted on the relevant web page through an independent window directly connected with the relevant web page; the above service provides a easy and rapid access to information with large interest of users among the large amount of information provided through the Internet; thus, it can be recognized as public nature; in light of the fact that it is difficult for the online service provider to view that the above online service provider has used the above service as commercial since advertising was not published on the web page, it constitutes an unlawful act under Article 25 of the Copyright Act within the fair scope of publication.

2. The costs of lawsuit are assessed against the plaintiffs.

The following facts are either disputed between the parties, or acknowledged as being based on Gap evidence 1-1 through 4, Gap evidence 2-1 through 14, Eul evidence 4-1 through 5, Eul evidence 1-1 through 3, Eul evidence 1-2, Eul, 4, 7, and 9, and there is no other counter-proof.

A. Status of the parties

The plaintiffs are corporations whose main business purpose is the Internet media business, etc., and provide sports and entertainment-related articles and photographs through their own website. The defendant is a corporation whose business purpose is the Internet advertising business, etc., and operates ww.sdayb.com (hereinafter referred to as the "Defendant's website").

B. The Defendant’s “Sama” service and the publication of articles and photographs prepared by the Plaintiffs

(1) From February 25, 2003 to June 2004, the Defendant opened and operated the Defendant’s website “theme” service, which is an open community service with the purpose of sharing information, knowledge, opinions, etc. between its members. The above service: ① users apply for the establishment of a kind of “theme,” which is a kind of community, including sports and leisure, by selecting one of the nine major categories of sports and leisure and the following 48 small categories; and the Defendant consented to the Defendant’s basic operation policy of theme; ② users who opened theme (hereinafter “theme”) can unilaterally create and modify the “theme”, which is part of the “theme,” and anyone may post a notice on the generated bulletin board; ③ if the user’s application for the establishment of theme, including sports and leisure, is made by selecting one of the nine major categories of music categories, and the following 48 small categories of music categories, the Defendant may unilaterally delete or remove the notice to the operator without authorization, or report it to the operator without authorization.

(2) Among the “theme” established by the Defendant’s service users of the “Saeme”, the items, such as the “Korea Film Organization,” and “entertainment Information,” are included in the lower bulletin board, such as “the most new news,” and “the entertainment-based primary news,” and each of the above “the traffic” was included in the news articles and photographs (hereinafter “instant article”) prepared by the Plaintiffs on several occasions without the Plaintiffs’ permission.

(3) The Defendant resisted that the article and photograph of this case were published without permission as above, and suspended the above service around June 2004.

C. Establishment of links to the Defendant’s news service and the Plaintiffs’ website, etc.

(1) From April 29, 2003 to June 2004, the Defendant opened and operated the Defendant’s website “news” service for the purpose of providing a list and information on news articles found by many members. The above service: ① collected the address of the web page in which the Defendant visited the Defendant’s members who consented to providing the Defendant with information on the web page from among the members who subscribed to the Defendant’s service, and ② automatically classified the robot program into the category of “entertainment/broadcasting”, “sports”, “motion picture”, etc.; ③ the Defendant’s “news” service’s title or title and quantity of the article collected, the contents of the article’s number and quantity, and the number of users who directly posted the web page as above, ④ the pertinent web page’s number and page’s number and page’s number and page’s number are reduced, ④ the pertinent web page’s number and page’s number and page’s number are reduced.

(2) During the web page linked to the Defendant’s “news” service, the news articles and photographs prepared by the Plaintiffs, or the Plaintiff’s web page or the third party’s web page that received the said articles and photographs from the Plaintiffs were included.

(3) The defendant argued to the effect that the plaintiffs' "news service found in theme" infringed the plaintiffs' copyright, and suspended the above service around June 2004.

D. Meanwhile, the Plaintiffs provide the Plaintiffs’ digital content to Nonparty 2, NHN, etc., operating the Internet portal site, including sports and entertainment-related articles and photographs.

2. The parties' assertion

A. The plaintiffs

The defendant published the article and photographs of this case on the defendant's web site without permission for the purpose of gaining advertising profits by expanding his web page interview (the Page Review, the user indicates the collection of the page) and infringed the plaintiffs' copyright by linking news articles and web page on which the plaintiffs prepared.

(b) Sponsor;

(1) The instant article is merely a mere factual news report, and cannot be deemed as a work protected under the Copyright Act.

(2) The article and photographs of this case were published by the users using the Defendant’s “Same” service, and it is impossible for the Defendant to control all posts posted in the “Same” service. However, the Defendant requested members to continue to infringe others’ rights through the “Same Operation Policy”, “Same Eyme Eyme Eyme Camp”, etc., and if a third party issues users’ notices, it was taken appropriate measures such as immediately deleting them. Thus, the Defendant was responsible as an online service provider. In addition, as the Defendant voluntarily ceased the service without receiving a warning or deletion request from the Plaintiffs, the Defendant should be mitigated or exempted from its responsibility.

(3) The Defendant’s “news service” merely indicates the source that the Plaintiffs intended to deliver via news articles and photographs and delivers it to many people, and thus, accords with the fair practices of using copyrighted works.

3. Determination

A. Whether the Defendant’s copyright infringement with respect to the “Stheme” service was made

(1) Examining the contents of evidence Nos. 2-1 through 12, evidence Nos. 4-1, and evidence Nos. 4-1, in full view of the purport of the entire pleadings, the article of this case does not merely include reporting facts in light of its content, but also constitutes a original literary work, including one’s evaluation, prospects, etc., and is included. The photograph of this case also constitutes a photographic work that reflects the person’s identity and creativity in the selection of the body in light of its image, rather than merely photographs of the body by mechanical means, in light of its image, it constitutes a photographic work that reflects the person’s identity and creativity.

(2) The plaintiffs' assertion in this part seems to have infringed on the plaintiffs' copyright by directly posting the articles and photographs of this case prepared by the plaintiffs on the defendant's website, or by aiding and abetting the service users to publish them on the defendant's website. First, there is no evidence to acknowledge that the defendant directly posted the articles and photographs of this case on the defendant's website, and that the defendant instigated the service users to publish them. Thus, this part of the plaintiffs' assertion is without merit without any need to further examine.

(3) Next, as to whether the Defendant’s service users of the instant article and photographs infringed the Plaintiffs’ copyright by aiding and abetting them to post them on the Defendant’s website without permission, the fact that the Defendant’s service users posted the article and photographs of the instant case in which the Plaintiffs had copyright on the bulletin board provided by the service users without permission is as seen earlier, and this is deemed as infringing the Plaintiffs’ right of reproduction and transmission.

However, in order to recognize that the Defendant, who is the operator of the “Stheme” service, is liable for aiding and abetting the user’s individual copyright infringement, the Defendant should be able to easily assist the user’s copyright infringement even though the Defendant directly ascertains the user’s copyright infringement or at least aware of it, or be assessed as a breach of the duty of care that should not help such infringement.

(1) According to the following facts: (i) the Defendant provided its website services to its members on the bulletin board; (ii) the aforementioned services are classified as 9 major sports/ leisure users under the Defendant’s approval; and (iii) if the Defendant creates graphics, which are the lower bulletin board, to allow any member to post graphics; (iii) the above service users to run graphics on the bulletin board without permission; and (iv) the Defendant’s provision of the aforementioned services without permission to use graphics for the purpose of infringing on the user’s copyright rights; and (iv) the Defendant’s provision of graphics and photographs for the purpose of infringing on the user’s copyright rights without permission; and (iv) the Defendant’s provision of graphics and photographs for the purpose of infringing on the user’s copyright rights without permission; and (iv) the Plaintiff’s provision of graphics and photographs for the purpose of infringing on the user’s copyright rights.

B. Whether the Defendant’s copyright infringement regarding the news service found in theme constitutes a news service

(1) The purpose of this service is to provide users with a list and information about news articles found by the Defendant’s members. ① The address of the web page that the Defendant visited for the members who consented to provide the Defendant with information about the web page from among the members using the Defendant’s Messen service, and ② The robot program is used to collect and display information about the text, pictures, etc. of the relevant web page, and automatically classify them into the categories of “entertainment/broadcasting”, “sports”, and “motion picture”, and ③ the Defendant’s “Mesa” service page; ③ some of the news articles’ title, title, and three lines collected as above; and the source of pictures reduced into small image; ④ the user directly posted the relevant web page by means of some title, content, or reduced contents of the news articles posted; and ④ the user’s selection of the web page and the relevant photograph are made independent.

(2) This part of the plaintiffs' assertion appears to the purport that the defendant collected articles and photographs prepared by the plaintiffs from the plaintiffs' web page or the third party's web page that received them from the plaintiffs, and published some contents on the defendant's web page, and it again infringed the plaintiffs' copyright by linking them to the corresponding web page. First, there is no evidence to acknowledge that the defendant infringed the plaintiffs' copyright in the course of collecting articles and photographs prepared by the plaintiffs from the plaintiffs' web page or from the third party's web page that received them from the plaintiffs' web page or the third party's web page that received them from the plaintiffs. The defendant directly connected the above web page that the defendant posted articles and photographs prepared by the plaintiffs on his own web page does not constitute cases where the defendant's reproduction, transmission, display, or display of the plaintiffs' copyrighted works, and there is no other evidence to support this part of the plaintiffs' claim based on this premise.

(3) Next, it is difficult for the Defendant to find that the Plaintiff’s act of posting news contents or contents of the Plaintiff’s news article’s title or contents and low image on its website constitutes an infringement of copyright. However, regarding the part of the news article’s title and part of the Defendant’s contents written on its website, it is insufficient to recognize that the Defendant’s submission of evidence alone constitutes a creative expression of the Plaintiffs’ thoughts or emotions, and there is no other evidence to acknowledge that the part of the news article’s contents were written on the website, and that it would infringe the Plaintiffs’ right of reproduction and display without the Plaintiffs’ consent. However, it is difficult for the Defendant to find that the Defendant’s act of posting news contents are more easily and without the Plaintiffs’ consent, and it is recognized that the Defendant’s act of posting news contents are directly linked to the web page’s contents that were published on its website, and that the Defendant’s act of posting news contents are more likely to be directly linked to the Plaintiff’s original web page’s contents.

4. Conclusion

Therefore, the plaintiffs' claims of this case premised on the defendant's infringement of the plaintiffs' copyright are all without merit, and they are dismissed. It is so decided as per Disposition.

Judges Gangnam-gu (Presiding Judge) and Yang Jin-jin