[2] The relation to the number of crimes of infringement on author's property rights to several works

1. Regarding ground of appeal No. 1

In full view of the duly admitted evidence, the lower court found the facts as indicated in its reasoning, including the fact that film files and reproduced computer programs without the consent of the author’s property rights holder by an unspecified number of users on the “○○○○○○○○○○○○ site” were operated and operated on the “○○○○○○ site” site of this case, and although Defendant 1 and 2 were aware of all the methods of operation and utilization of the said site, they provided the site users with file downloads, downloads, downloads, and search, and received profits therefrom, and determined that Defendant 1 and 2 provided the “○○○○○○○○○” site of this case, thereby facilitating Nonindicted 1, 2, and the use of the “○○○○○○○○○○” computer program, and thus, convicted the aforementioned Defendants of the charges of aiding and abetting the violation of the Copyright Act and of aiding and abetting the violation of the Computer Programs Protection Act against the said Defendants.

Examining the relevant legal principles and evidence duly admitted, the above determination by the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the requirements for establishing an online service provider’s liability.

2. Regarding ground of appeal No. 2

Article 136(1) of the former Copyright Act (amended by Act No. 9625, Apr. 22, 2009; hereinafter “former Copyright Act”) provides that a crime under Article 140(1) due to infringement of author’s property right shall be subject to victim’s complaint. Article 140 proviso subparagraph 1 of the same Act provides that where a crime is committed habitually for profit-making under Article 140 proviso, a public prosecution may be instituted even without a complaint. However, there is no provision that a person habitually commits an offense under Article 136(1) of the former Copyright Act. Accordingly, even if a crime under Article 136(1) of the former Copyright Act was committed several times based on the habitual expression of habitual nature, it should not be deemed as a concurrent crime. It conforms to the expression of the provision of the Act and repeated punishment for habitual crimes is a single infringement of author’s property right (see, e.g., Supreme Court en banc Decision 2012Da151010, supra.).

In this case, since the copyrighted work, which is the object of aiding and abetting the Defendants in violation of the Copyright Act, is not all the same copyrighted work, it cannot be deemed that the entire copyrighted work is an inclusive crime in light of the aforementioned legal principles. Therefore, the Defendants’ assertion that the Defendants’ crime of aiding and abetting the Defendants in violation of the Copyright Act is a blanket crime cannot be accepted. Ultimately, the lower court did not err by misapprehending the legal doctrine on the legal meaning of “Habitually” under Article 140 subparag. 1 of the former Copyright Act, or by misunderstanding the judgment on the number of crimes, which affected the conclusion of the judgment,

3. As to the third ground for appeal

In full view of the circumstances in its holding, the lower court determined that Defendant 1 and 2 cannot be exempted from liability pursuant to Article 102 of the former Copyright Act, since it is difficult to view that Defendant 1 and 2 made all necessary efforts to prevent or block the infringement of author’s property rights by the website users of the instant “○○○○○” case.

In light of the relevant legal principles and evidence duly admitted, the above determination by the court below is just, and there is no error of exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or of misapprehending the legal principles as to the exemption requirements, aiding and abetting act, etc. under Article 102 of the former Copyright Act,

4. Conclusion

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

Justices Kim Shin (Presiding Justice)