2018 Doz.57172 Compensation for damages

A Stock Company

Attorney Lee Sung-hwan, Counsel for the plaintiff-appellant

B

January 11, 2019

January 25, 2019

1. The defendant shall pay to the plaintiff 20 million won with 5% interest per annum from September 8, 2018 to January 25, 2019, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 60% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 50 million won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

A. The plaintiff is a company established for the purpose of online game development business, etc., and developed "C", which is a work of online game style (hereinafter "the game of this case"), around 2001, and operates the game of this case for pay.

B. From November 17, 2017, the Defendant opened and operated a game site called “D” (hereinafter “instant game site”) and allowed many and unspecified persons who have access to the instant game site to use the instant game, and acquired profits by selling the game items, etc.

C. On February 21, 2018, the Defendant issued a summary order of KRW 3,00,000 as a violation of the Game Industry Promotion Act from Gangnam Branch Branch of the Chuncheon District Court on the criminal facts identical to the above B. The said summary order became final and conclusive around that time.

(d) The relevant provisions of the Copyright Act are as follows:

Article 125 (Claim for Damages) (1) Where a person who holds an author’s property right or other rights protected pursuant to this Act (hereinafter referred to as “author’s property right and performer’s moral right”) claims compensation from a person who has intentionally or negligently infringed his/her rights (hereinafter referred to as “owner of author’s property right, etc.”) for damages arising from the act of infringement, the profits gained from the act of infringement shall be presumed to be the amount of damages suffered by the owner of author’s property right, etc. if the infringer obtains the profits from the act of infringement. (2) Where the owner of author’s property right, etc. claims compensation from a person who has intentionally or negligently infringed his/her rights, the amount equivalent to the amount ordinarily entitled to receive from the act of infringement may be deemed to be the amount of damages suffered by the owner of author’s property right, etc.... (1) The owner of author’s property right, etc. shall be deemed to be the amount of damages suffered by the holder of author’s property right, etc. (50 million won in cases of intentional infringement).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 and 5 (including branch numbers; hereinafter the same shall apply), the purport of the whole pleadings

2. Occurrence of liability for damages;

According to the above facts, the defendant, without the permission of the plaintiff, who is the copyright holder of the game of this case, established the game of this case and allowed many and unspecified persons to use the game of this case, thereby infringing the copyright of the game of this case, which is the plaintiff's copyrighted work, and thus, the defendant is liable to compensate the plaintiff for damages caused by

3. Scope of damages.

A. Judgment as to the plaintiff's primary claim

Pursuant to Article 125(2) of the Copyright Act, the Plaintiff may seek payment of KRW 290,000,000 (i.e., the minimum amount of KRW 50,000,000 + the minimum amount of profit guarantee for two years + KRW 240,00,000), which is an amount ordinarily entitled to receive from the exercise of the domestic brishing right, as damages to the Defendant. In light of the Defendant’s ability to repay, the Plaintiff seeks payment of KRW 50,00,000, which is a part of the above KRW 290,000,000, and damages for delay.

According to the evidence evidence Nos. 2 through 4, it is recognized that the contract term is 2 years, minimum contract deposit is 50,000,000 won or more, the minimum amount of profit guarantee is 120,000,000 won or more per annum under the contract term, and the plaintiff entered into an overseas license contract with a third party for the game of this case with a third party, which is 2 years of contract term, 200,000, 200,000, 262,500, or 30% of the minimum amount of profit guarantee for six months.

However, in full view of the purport of the whole evidence revealed as follows: ① (i) more than 2 years of contract term set by the Plaintiff’s domestic display contract for the game of this case; (ii) more than 50,000,000 won per year; and (iii) more than 120,000,000 won of annual minimum profit guarantee are merely one-way and general standards set by the Plaintiff’s offer; (iii) more than 120,000,000 won are not submitted to the Plaintiff’s offer; and (iv) more than 3) there is no evidence to acknowledge that the Plaintiff’s offer of the above contract term is concluded in accordance with the above contract term set by the Plaintiff; (ii) there is no ordinary standard applicable to the online games similar to the actual game of this case; or (iii) it appears that the Plaintiff’s offer of the above contract term is a practice in the game of this case’s game industry; (iv) it appears that the Plaintiff’s offer of the above contract term is an infringement of the Plaintiff’s copyright right to the game of this case’s site.

It is insufficient to recognize that the amount reaches 290,000,000 won, and there is no other evidence to acknowledge otherwise, and it is not appropriate that the Plaintiff calculated the amount equivalent to the amount that the Plaintiff would normally receive from the exercise of the right to the game of this case against the Defendant as the amount that the Plaintiff would normally receive under the blishing contract concluded with the operator of the blish site in Korea. Therefore, the Plaintiff’s primary assertion is not reasonable.

B. Judgment on the plaintiff's first and second preliminary claims

The Plaintiff, as the first preliminary copyright infringement by the Defendant intentionally infringed on the copyright of the game of this case pursuant to Article 125-2(1) of the Copyright Act, sought payment of 50,000,000 won, the maximum statutory damages, and damages for delay therefrom, from the Defendant, pursuant to Article 126 of the Copyright Act, and seek payment of 50,000,000 won and damages for delay from the damages for infringement of copyright of the game of this case pursuant to Article 126 of the Copyright Act.

However, as seen earlier, Article 125-2 (4) of the Copyright Act provides, "the court may recognize a reasonable amount of damages within the scope of paragraph (1) in consideration of the overall purport of pleadings and the result of the examination of evidence," and Article 126 provides, "a court may recognize a reasonable amount of damages in consideration of the purpose of pleadings and the result of the examination of evidence when it is difficult to calculate the amount of damages pursuant to Article 125, although it is found that the damage was incurred, the court may recognize a reasonable amount of damages in consideration of the purpose of the pleadings and the result of the examination of evidence." Thus, the above evidence and the overall purport of the arguments can be comprehensively taken into account, and the profits that can be seen as the actual acquisition of the defendant's game site establishment process, operation period and number of users of the game site of this case, profits that can be seen as the defendant's criminal judgment on infringement of copyright of the game of this case, sentencing of the defendant's criminal judgment on infringement of copyright of this case, and damages recognized by the plaintiff against others. Therefore, the plaintiff's conjunctive No. 120 million won and damages are justified.

C. Judgment on the defendant's argument

As to this, the defendant asserts that the defendant can only claim the above KRW 2,080,000 for damages for infringement of copyright of the game of this case, since he only allowed many and unspecified persons to use the game of this case during the operation of the game of this case between Korea and Japan.

However, evidence presented by the defendant alone is insufficient to recognize that the amount of profit caused by the defendant's infringement of copyright on the game of this case is only 2,080,000 won, and there is no other evidence to acknowledge it. Even if the amount of profit of the defendant is 2,080,000 won, the plaintiff can prove the actual amount of loss caused by the defendant's infringement and seek the amount equivalent thereto as compensation for damages. Pursuant to Article 125 (1) of the Copyright Act, the plaintiff can seek the amount of profit of the defendant as compensation for damages pursuant to Articles 125 (2) and 125-2 (1) of the Copyright Act. As seen earlier, the plaintiff can seek damages pursuant to Articles 125 (2) and 125-2 (1) of the Copyright Act. Thus, the plaintiff's assertion is without merit.

D. Sub-determination

Ultimately, the Defendant is obligated to pay damages for delay calculated by the ratio of 5% per annum under the Civil Act from September 8, 2018 to January 25, 2019, which is the adjudication date of this case where it is recognized that it is reasonable for the Defendant to dispute as to the existence or scope of the obligation of performance of this case from September 8, 2018, the day following the delivery date of a copy of the complaint of this case sought by the Plaintiff to the Plaintiff, and 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of complete payment.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Park Sang-gu

Judges Lee Jae-in

Judges Park Jin-chul