Defendant

Prosecutor

The gardening (prosecution) and the red trial;

Attorney Hong Ho-si (Korean)

Seoul Central District Court Decision 201 High Court Decision 7486 Decided January 16, 2014

The prosecutor's appeal is dismissed.

1. Summary of grounds for appeal;

As the reasoning of the judgment of the court below, it cannot be concluded that the app registered by the defendant in the Sadad Market and the web site developed by the victim are linked by direct links or in-depth links. The judgment of the court below is erroneous by misunderstanding facts, which affected the conclusion

2. Determination

A. Summary of the facts charged

On November 2010, the Defendant infringed the victim’s author’s property right by reproducing, exhibiting, and secondary copyrighted works with respect to the mobile service produced by the victim Nonindicted Co., Ltd. at the Defendant’s residence located in Dongjak-gu Seoul ( Address omitted) from the early November 201, 2010, and by linking the said “○○○ massage” mobile service to the site for profit-making without a legitimate source of authority to make a reproduction, display, and secondary copyrighted work, and by registering the word “○○○ massage place”, which is a derivative copyrighted work after the developer’s registration.

B. The judgment of the court below

For the following reasons, the lower court determined that the instant facts charged constituted a case where there is no proof of crime.

(1) Article 5(1) of the Copyright Act provides that a creative work produced by means of translation, arrangement, alteration, color, image, etc. of an original work (hereinafter “second-class work”) shall be protected as an independent work. In order to be protected as a second-class work, a new creative work shall be added by maintaining substantial similarity with an original work, while maintaining substantial similarity with an original work, and by adding a modification, increase, or decrease to the extent that it can be a new work under social norms (see Supreme Court Decision 9Do863, Jan. 25, 2002, etc.).

(2) According to the health stand in this case, according to the evidence duly adopted and examined by the court below, the defendant made the word "○○○ prescription house" (hereinafter referred to as "Mamp") operated on the Internet homepage, which is opened by the defendant. The above app was activated from smartphones, and then it was recognized that the above app is operated in a way that is linked to the web page where information, such as the photograph of the restaurant in the "○○○ prescription house" website, which was produced by the non-indicted corporation, is posted. The above app does not enable the defendant to directly listen to, or directly listen to, the above work by copying the information on the Internet address (UR) and Hax on the website, which is stored on the Internet link, and attaching it to the "O○○'s website" website, and it does not enable the defendant to directly listen to, or directly listen to, the above work by directly attaching it to the Internet homepage or other similar evidence. Thus, the above app does not mean the technology that allows the Internet users to easily move from the web page.

C. Judgment of the court below

In a thorough examination of the records in comparison with the evidence duly adopted and examined by the court below, the above fact-finding and determination by the court below is just, and the evidence submitted by the prosecutor, including the testimony of the witness at the trial room, shall not be deemed to have been proven without any reasonable doubt that the above app registered by the defendant was reproduced, displayed, or modified, increased, or decreased to the extent that it can be recognized as a new creativeness in the above work. The prosecutor's above assertion by the prosecutor is unacceptable.

3. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act, since the prosecutor's appeal is without merit. It is so decided as per Disposition.

Judges Sung-soo(Presiding Judge)