(a) Violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection;

[Promotion of Utilization of Information and Communications Network and Information as Recognized against Defendant A]

【Violation of the Protection, etc. of obscenity (obscenity)】

(b) Assistance in violation of the Copyright Act;

2.(a) B

3.2.(b) C

Attorney E in charge

Law Firm F (private ships for Defendants A and C)

Attorney G in charge, H

Where a defendant A fails to pay the above fine, the above defendant shall be confined in a workhouse for the period calculated by converting 50,000 won into one day.

However, the execution of the above punishment shall be suspended for two years from the date this judgment becomes final and conclusive.

Defendant A and C are ordered to pay the amount equivalent to each of the above fines.

[2012 Highest 9907]

Defendant A is the representative of the 'C' corporation operating a web sub-subsidiary company in the name of 'A', and Defendant B is the operator of the 'J' which is the obscenity exclusive for obscene materials in the above I.

No one may sell, rent, or openly display obscene codes, words, sound, image, or motion pictures through an information and communications network. Defendant B, from March 2, 201 to July 1, 2012, connected to the 5 L/D to the 5th KM on the 5th, Seocheon-gu, Seocheon-gu, Nowon-gu, Seoul, with 'ADM' on the bulletin board, displayed 6,035 obscene motion pictures, including 'Olya Pink (TAC).’ The Defendant A displayed 6,035 obscene motion pictures, including the face of exposure to sexual organ and sexual activity. The Defendant A, from around December 2, 2011 to June 2, 2012, was aided by dividing the above club's profits into 1,50 won each month, as activity expenses, and aided and abetting the operation of the above club by distributing them to other members in the bulletin board.

[2012 Highest 1081]

1. Defendant A

The defendant was the representative director of C, a corporation operating I, a web hard site.

Although the Defendant knew that various digital data traded through the above web site was digital content, such as motion pictures not permitted to use copyright, the Defendant, despite having known that such digital data was not authorized, had the members of the above web site trade various digital content in the above web site, and had the members of the above site trade the various digital content on the web site, and had the Defendant gain profits by advertising every time he receives the downloadd content.

The Defendant provided 2,00 points free of charge on the above website, and provided various digital contents that are downloaded for 40 days, and actively recruited its members and supported its clubs by operating the business route rating system, providing the service route classification points and the points that are listed on the basis of the business route details, etc.

The Defendant, despite being aware of the fact that the content subject to the protection of author’s property rights has been illegally distributed through the above website, neglected various digital contents, such as deletion of the relevant file or setting a formally-based gold content. As such, the Defendant recruited members through the provision of various convenience so that he/she can download the digital content subject to the protection of author’s property rights to the users who wish to do so.

On April 19, 2012, members of the above website via the above I website system, the difference between male and female members within 10 days from the film that has the author’s property right by Parosunt Pure Corporation, was put on the above website, and up to April 19, 2012, up to 95 times in total, the film files subject to protection of author’s property right were put on the above website as described in the attached list of crimes, so that many unspecified users can easily access the above film files at any time, thereby infringing on the author’s property right by means of reproduction and public transmission of the author’s property right.

As a result, the defendant made it easy for the business in favor of the defendant to infringe the author's property right, thereby habitually aiding and abetting the infringement of the author's property right for profit.

2. Defendant C

The defendant, who is the representative director of the defendant, committed such a violation as above in relation to the defendant's business.

Summary of Evidence

[2012 Highest 9907]

1. Each legal statement of the defendant A and B;

1. Police interrogation protocol on N,O, P, Q, R, T, U, V, X, Y, Z, AA, AB, AC, and AD;

1. A specification of transactions of dynamics securities accounts in B;

1. Screening tickets (to be attached to a list of obscenity images posted and to a caps);

[2012 Highest 1081]

1. The defendant A's partial statement

1. Each legal statement of the witness AE and AF;

1. Partial statement of the witness N;

1. A list of copyright, list of copyright data, list of documentary evidence, list of screen closure data, copy of a email, and the list of screen pictures attached thereto, etc.;

Application of Statutes

1. Article applicable to criminal facts;

A. Defendant A

○ Articles 74(1)2 and 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., Article 32(1) of the Criminal Act (a) of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc., and Selection of fines

○ Article 136(1)1 of each Copyright Act, Article 32(1) of the Criminal Act (including each copyright infringement prevention set out from March 15, 2012, and each copyrighted work), Article 136(1) of the former Copyright Act (Amended by Act No. 11110, Dec. 2, 201; hereinafter the same shall apply), Article 32(1) of the Criminal Act (including each copyright infringement aiding and abetting committed until March 14, 2012; hereinafter the same shall apply), Article 32(1) of the Criminal Act (including each copyrighted work)

B. Defendant B

Articles 74(1)2 and 44-7(1)1 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. and Selection of Imprisonment

C. Defendant C

Articles 141 and 136(1) of the Copyright Act; Article 32(1) of the Criminal Act

1. Aid and mitigation;

Defendant A and C: Articles 32(2) and 55(1)6 of the Criminal Act

1. Aggravation for concurrent crimes;

Defendant A and C: the former part of Article 37, Articles 38(1)2 and 50 of the Criminal Act

1. Detention in a workhouse;

Defendant A: Articles 70 and 69(2) of the Criminal Act

1. Suspension of execution;

Defendant B: Article 62(1) of the Criminal Act

1. Order of provisional payment;

Defendant A and C: Article 334(1) of the Criminal Procedure Act

Reasons for conviction [2012 Highest 10811]

1. Whether exemption is granted under Article 102 (1) of the Copyright Act;

Article 102(1) of the Copyright Act amended by Act No. 10807, Jun. 30, 201; Article 102(1) of the same Act divides online service providers into four types, namely, simple painting, hosting, and information search. According to the above provision, online service providers, such as Defendant Company, are exempted from liability when meeting the requirements under Article 102(1)1 and 3. However, as Defendant Company gains profits through pay points in the course of downloading with the Round of works, Defendant Company is unable to obtain general exemption from liability under Article 102(1)3(b).

2. Whether exemption is granted under Articles 102 (2) and 103 of the Copyright Act;

A. Legal doctrine

Article 102(1)3 (c) of the Copyright Act provides that “Where an online service provider actually becomes aware of the infringement or where the online service provider becomes aware of the fact or circumstance that the infringement is evident through the request, etc. to suspend reproduction or transmission under Article 103(1) of the same Act, he/she shall immediately suspend reproduction or transmission of the relevant works, etc.” as one of the requirements for exemption. Article 104(1) of the same Act provides that “On the other hand, an online service provider who mainly aims to allow another person to transmit works, etc. by using computers shall take necessary measures, such as technical measures, etc. to block illegal transmission of the relevant works, etc.” Meanwhile, Article 102(2) of the same Act provides that “Where it is technically impossible for an online service provider to take measures under paragraph (1), he/she shall not be liable for the infringement of copyright due to the reproduction or transmission of other persons’ works, etc. and other rights protected under this Act”.

"Technically impossible cases" referred to in the above provision refers to cases where it is technically impossible to prevent or block reproduction and transmission, which constitutes an infringement of copyright, among the acts of reproduction and transmission by users, on the premise that the provision of online service itself is maintained (see Supreme Court Decision 2011Do1435, Sept. 26, 2013). In light of Article 46 of the Enforcement Decree of the Copyright Act, where technical measures are taken to prevent copyright infringement that is currently commonly used, "packing, drawing of text, drawing of a specific type, type of file, type of pening, type of pening, type of pening, type of audio and video recognition, etc."

Therefore, if an online service provider knew of copyright infringement or received a request for copyright protection from the right holder, he/she shall be exempted from all such technical measures as mentioned above to immediately suspend reproduction and transmission.

B. Determination in this case

(1) 살피건대, 이 사건 증거들에 의하면 이 사건 저작권자의 대리인이 2012. 2. 17.경 피고인 회사에 이 사건 저작물을 포함한 저작물들의 저작권보호요청을 한 사실, 피고인 회사는 ㈜캔들미디어와 DNA 필터링 계약을 체결하고 저작권침해 방지를 위한 노력을 하고 있었으나 당시 이 사건 저작권자의 저작물들은 DNA 필터링을 위한 정보가 제공되지 않아서 필터링이 이루어지고 있지 않았던 사실, 따라서 위 저작물들은 제목 검색 등을 통해 저작권 침해 상태를 발견해야 했던 사실, 이 사건 저작물을 채증한 업체는 제목 또는 문자열 검색 등을 통해 위 저작물들이 피고인 회사의 사이트에서 유통되고 있다는 점을 발견한 사실, 저작권자가 저작권 보호요청했던 일부 저작물들과 채증된 저작권 침해 파일들은 중요 부분의 영문 제목이 일치해서 단순 제목 검색만으로도 검색이 가능했던 사실 등을 인정할 수 있다.

In full view of the above facts, Defendant Company may prevent the distribution of the instant copyrighted works through technical measures, such as the search of title, writinging, and the comparison of writing, and thus, it cannot be deemed that the instant copyrighted works are technically impossible to prevent or suspend the reproduction or transmission thereof.

(2) On this issue, the Defendants asserted that, upon receiving the request for copyright protection of this case, the copyright holder registered the English name of the copyrighted work presented by the holder of the right in a closed language, and that the copyright holder did not set the Korean title of all copyrighted works in a closed language because he did not provide the Korean title. However, the widely known copyrighted works need cooperation, such as providing the original copyrighted work, etc. by the holder of the right in a closed language. In this case, the right holder could not carry out pening because he did not cooperate with it, and the right holder did not request copyright protection in the form of a copyright law written by URL, etc., so it should be exempted on the basis of the fact that a legitimate request for copyright protection cannot be made.

However, as seen earlier, the author finds that the author’s infringement was distributed in line with the main English name; the producer himself/herself identified the name of his/her copyrighted work and searched the author’s infringement; and the right holder requested the protection of rights by specifying both the English title and Korean title of the instant copyrighted work on or around December 2010 through his/her agent; the title writing writing writing pening can be conducted before the piracy and DNA pening; even if the right holder did not make a request with the form prescribed by the law, the online service provider should immediately take measures to stop the infringement except upon the request of the right holder; in light of the above, the circumstances alleged by the Defendants alone are not sufficient to deem that the Defendants’ act should be exempted.

3. Conclusion

Therefore, the facts charged in the instant case are found guilty based on the evidence. However, the grounds alleged by the Defendants are considered on the grounds of sentencing as follows.

The reason for sentencing (the fact of aiding and abetting Violation of Copyright Act)

As seen earlier, Defendant A’s act constitutes a crime of aiding and abetting in violation of the Copyright Act. However, according to the evidence of this case, Defendant Company concluded a contract with NA TWing Company and made efforts to prevent copyright infringement. The right holder requested the protection of 920 large quantities of works in lump sum, but did not present the location on the web site. The Defendant Company appears not to have been easy to confirm it daily and take measures of suspending it. The instant copyrighted works, even if based on the crime of this case, can be acknowledged that the copyrighted works of this case are not currently being screened or were being greatly talked, and thus, their circulation amount was not high. In determining punishment against Defendants, these facts are considered.