(영문) 서울중앙지방법원 2015.2.17.선고 2012가합533723 판결

1. Each Defendant written in the column of “the full acceptance” and “the partial acceptance” of the attached Table 2. List shall pay to the Plaintiff 5% interest per annum from each date indicated in the column of “the amount cited” of the attached Table 3. List, and from February 17, 2015 to February 17, 2015, and 20% interest per annum from the following date to the date of full payment.

2. The plaintiff's each claim against each defendant listed in the column of "the full dismissal of the plaintiff's Schedule 2. List", and all remaining claims against each defendant listed in the column of "the partial acceptance of the same Table" are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant indicated in the “Attachment 2. List” column shall be borne by the said Defendants, and the part arising between each Defendant indicated in the “Partial citement” column of the said Table as to the Plaintiff shall be borne by the Plaintiff, the remainder shall be borne by the said Defendants, and the whole rejection of the said Table as to the Plaintiff shall be borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

Purport of claim

[Attachment 2. As to each defendant described in the column for citement of the Table 2.

Paragraph 1 of this Article shall also apply.

[Attachment 2. List 2. Partial cites, and Full Dismissal of the Table]

[Attachment 2. Partial cited 2. The Defendants indicated in column 1,00,000 each to the Plaintiff, 1,000 won

from the day following the service date of the copy of the complaint of this case to the day of this decision with respect to each of the above amounts

It shall pay 5% interest per annum, 20% interest per annum from the following day to the day of full payment.

Reasons

1. Facts of recognition;

A. The plaintiff is a company engaged in film production and distribution business, and is a copyright holder of cinematographic works ***** '(hereinafter referred to as the "cinematographic works of this case").

B. The Plaintiff entered into an alliance agreement (hereinafter referred to as each of the contracts of this case) with the web harding company (hereinafter referred to as the "each of the web harding companies of this case") operating each of the web sites listed in the separate sheet No. 3. List No. 3. The Plaintiff provided the relevant web hard site users with the fixed amount of the affiliation ( approximately KRW 3,500 for new works, approximately KRW 2,000 for previous works, and KRW 2,000 for old works). Each of the contracts of this case entered into with the Plaintiff as to each of the contracts of this case with the Plaintiff and the copyright holders around the date of concluding each of the contracts with the Plaintiff.

C. However, the remaining Defendants, except Defendant 45, carried on the sales price of the instant cinematographic work files at the same time prior to each of the dates indicated in the column of “Attachment 3. Rod Rod Rod Rod Rod Rod Rod Rod 1/30 to 1/10 of the fixed number of alliances set on each of the sites listed in the column of “wed Dod Dod Dod Dod Dod Dog”.

【Grounds for Recognition】

○ As to Defendant 1, 11 through 14, 16, 17, 19, 20, 23 through 27, 31, 40, 41, 43, 44, 47 through 51, 53, 56, 57, 61, 62 (hereinafter referred to as “Defendant 1 and 28 others”): deemed confession (Article 208(3)2 of the Civil Procedure Act)

○ Defendant 2 through 10, 15, 18, 21, 22, 28 through 30, 32 through 39, 42, 45, 46, 52, 54, 55, 58 through 60, and 63: The fact that there is no dispute over the facts that there is no dispute over the evidence set forth in subparagraph 1, and the fact that there is no dispute over the evidence set forth in subparagraph 1-2, 4, 5, 7, 10, 12, 14, 18 through 25, 28, 29, 31 through 35, 37 through 39, 41 through 48, 51, 53 through 63, 65, 68 through 77, 79 through 84, the purport of the whole pleadings, and the purport of the pleading as a whole.

2. Summary of the plaintiff's assertion

The Defendants infringed the Plaintiff’s copyright by putting the file of the instant cinematographic work on the site of this case at a price much less than the partnership price without the Plaintiff’s permission, who is the copyright holder of the instant cinematographic work. As a part of the claim for damages therefrom, the Defendants seek payment of KRW 1,00,000 and damages for delay.

3. Determination as to the claim against Defendant 1 and 28

Pursuant to Article 150(3) of the Civil Procedure Act, Defendant 1 and 28 other parties shall be deemed to have led to the confession of all the facts alleged above by the Plaintiff.

Therefore, Defendant 1 and 28 (each Defendant indicated in the column for the full acceptance of the attached Table 2) shall each be the Plaintiff’s KRW 1,000,000, and as requested by the Plaintiff, the date immediately following the date of delivery of the copy of the instant complaint and the date of commencement of the interest in arrears in attached Table 3. List, which is the date of pronouncement of this decision, from each date indicated in the column for the attached Table 3. List, as requested by the Plaintiff.

17. By the time limit, 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day to the day of full payment.

4. Determination as to the claim against the defendant 45

The video of evidence No. 1-64 alone is insufficient to recognize the fact that the above defendant illegally opened the video work file of this case on the web f's web site (htp/ / f.co.) around February 7, 201, and there is no other evidence to recognize it. Rather, according to the result of the court's inquiry into the government prosecutor's office of the government of this court, the defendant 45 can recognize the fact that the third party (the above defendant's children * *) can recognize the video work file of this case on the web f's Web site on the above date on the grounds that it can be recognized that the defendant was subject to the non-prosecution disposition of the above defendant's claim against the above defendant without any evidence. Accordingly, the plaintiff's claim against the above defendant is without merit.

5. Determination as to claims against Defendant 3, 4, 7, 8, 10, 18, 21, 32, 33, 35, 59, 60, and 63 (hereinafter referred to as Defendant 3 and 12 others)

(a) Facts of recognition;

According to the overall purport of Gap evidence 1-5, 7, 14, 18, 20, 31, 34, 47, 48, and 53, the defendant 3 and 12 up to the web site indicated in the "welth" column of "welth website" column of each of the above web site run the video work files of this case. Each web hard site operating each of the above web site set up the above web site set up on the date stated in the "date of closure" column of the above defendants' each of the above defendants' each of the above web site set up an alliance contract for the video work of this case between the plaintiff and the plaintiff (the contents are as stated in subparagraph 1-2, 1-2, 34, 47, 48, and 53). At that time, it can be acknowledged that the pertinent web site entered into an alliance contract with the relevant users.

B. Determination

In full view of the following circumstances that can be recognized by comprehensively taking account of the purport of the entire pleadings as a whole in the facts acknowledged as above, it is insufficient to find that the evidence submitted by the Plaintiff and Defendant 3 and Defendant 12 set the sales price of the file of the cinematographic work of this case as an amount equivalent to approximately 1/30 through 1/10 of a partnership price and that the above Defendants were intentional or negligent in copyright infringement on the cinematographic work of this case. There is no other evidence to acknowledge otherwise.

① The instant cinematographic works were concluded by entering into a partnership contract, such as the entry in the above paragraph (a) and thus, it was allowed for users to freely display and download the instant cinematographic works by registering them as an affiliation file (affiliated contents) on the relevant website. The Plaintiff has received certain profits from the relevant web website’s opening of the file of the instant cinematographic works in accordance with the above partnership contract.

② The above partnership agreement aims to fairly set and distribute profits from the agreement rather than restricting the business route of the work subject to alliance. The intent of the copyright holder, which concludes such partnership agreement, is to open a legitimate channel for web lower-site users to work their own copyrighted works, and to have legitimate profits therefrom.

It is reasonable to view that it is reasonable to view it.

③ According to the above alliance contract, the operator of the web site at issue confirms from time to time whether the work subject to affiliation was operated, and immediately converting the relevant file into a partnership file. It is reasonable to view that the operator of the web site at issue as above, as he/she wishes to automatically convert the file he/she opened from the web hard site to a partnership file and then legally distribute the file.

④ Therefore, it is difficult to view that the Defendants’ act, which carried out the files of the instant cinematographic work on the pertinent web site, was attributable to the intentional or negligent act of copyright infringement, under the expectation that the file of the instant cinematographic work will be converted into a partnership file and distributed lawfully after the conclusion of a partnership contract for the instant cinematographic work and the publication thereof was made.

C. Sub-committee

Therefore, the plaintiff's respective claims against the defendant 3 and the defendant 12 are without merit.

6. Determination as to the claim against Defendant 1 and 28 others, Defendant 45, and Defendant 3 and 12 others, as well as Defendants 1) (hereinafter “Defendant 2 and 19”)

A. According to the facts acknowledged prior to the occurrence of liability for damages, Defendant 2 and 19, without the Plaintiff’s permission, offered the files of the instant cinematographic works to an unspecified number of users by downloading them to each site of this case at a price much less than the partnership price without the Plaintiff’s permission constitutes an act infringing the Plaintiff’s right of reproduction and transmission, which is the copyright holder of the instant cinematographic works. Accordingly, Defendant 2 and 19, supra, are liable for damages suffered by the Plaintiff due to the infringement of copyright.

B) Meanwhile, Defendant 2, etc. asserted that this case’s cinematographic work was registered as a cinematographic file at each web site, and even if it was run, it does not constitute an infringement on the Plaintiff’s copyright. However, according to the overall purport of Defendant 1-4, 10, 12, 35, 45, 65, 72, and 79’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s cinematographic work’s 3: Defendant 12, 29:301.

2) Limitation on liability

However, in consideration of the mode of copyright infringement, age at the time of infringement, degree of damage to copyright owners, etc., among the Defendants, the liability for Defendant 2 and 10 others, who were minors at the time of infringement of each copyright (under the age of 20) is limited to 50%.

B. Determination of damages 1) Summary of the Plaintiff’s assertion

The 231,50 cinematographic works were illegally published on the web hump for one year of 2011. Since the number of circulation of illegal reproductions for the same period is about 259, 762, 104, the illegal hump occurrence of approximately 1,122 cases ( = 259, 762, 104 cases: 231,50 cases: 2308 cases: 20% of the total value of cinematographic works, and 30% of the total value of cinematographic works) x 10% of the average amount of damages under 19 x 20% of the total amount of damages under 30 x 16% of the total amount of damages under 30 x 19 x 20 x 19 mump under the former Copyright Act (amended by Act No. 10429, Mar. 7, 2011) x 2014.

A) Whether Article 125(1) of the Copyright Act is applied

According to Article 125(1) of the Copyright Act, the amount of profit gained by a person who has infringed a copyright shall be presumed as the amount of damage suffered by the copyright holder. However, there is no specific assertion or proof as to the amount of profit gained by infringement of copyright by Defendant 2 and 19 other persons. Therefore, the Plaintiff’s amount of damages cannot be calculated in accordance with Article 12

B) Whether Article 125(2) of the Copyright Act is applied

In calculating the amount of damages in accordance with Article 125(2) of the Copyright Act, "amount equivalent to the amount that can be ordinarily received by the exercise of the right" refers to the amount objectively equivalent to the amount that the infringer would have paid as the price if the infringer had obtained permission to exploit the work (Supreme Court Decision 2010.

3. 11.see, e.g., Supreme Court Decision 2009Da80637, supra)

In light of the above legal principles, the above amount 2,146,386 won calculated by the Plaintiff is limited to the approximate estimated amount based on the average number of downloads, average amount of alliance, etc. as seen below, and the number of downloads is not the case where the Plaintiff has granted permission to exploit works, but the case where the number of downloads was illegally made (the number of times increases due to the difference of low price, etc.). Thus, the above amount 2,146,386 won cannot be deemed to be the "amount objectively equivalent to the amount that the infringer would have paid as the consideration if the infringer had obtained permission to use the works." Accordingly, Article 125 (2) of the Copyright Act cannot be calculated as the amount of damages of the Plaintiff.

C) Application of Article 126 of the Copyright Act

According to Article 126 of the Copyright Act, if it is recognized that the damage occurred, but it is difficult to calculate the amount of the damage pursuant to Article 125 of the Copyright Act, the court can recognize the reasonable amount of damage in consideration of

In addition to the facts acknowledged earlier, the following circumstances may be acknowledged in full view of the purport of the entire pleadings.

① According to the annual report on copyright protection published by the Federation of Korea Copyright Organizations, an incorporated association, in 2012, the annual report on copyright protection: 231,508 items for 1 year 201, and 259,762,104 items for 1,122 items for 1,122 items for 259,762,100 items for 259,762,104 items for 231,50 items for 201, the average amount for 231,50 items for 231,50 items for 200 items for 200,762 and 104 items for 30% for each case for 30% of the 33rd amount for 3rd amount for 3rd amount for 20% of the 3rd amount for each case for 3rd amount for 3rd amount for 20% of the 3rd amount for 3rd amount for 3rd amount for 20%.

② However, in the event that the instant cinematographic work is sold at a lawful price compared to the case where the said cinematographic work is legally sold at a partnership price, more than 1/30 to 1/10 of the above cinematographic work would have occurred. In other words, if the cinematographic work is sold at partnership price, the number of downloads of the instant cinematographic work would not exceed 1,122 cases, the above 2,146,498 won should be reduced.

③ In a case where a user makes a settlement in order to download a cinematographic work at the web site, the considerable amount of the settlement shall be attributed to the profits of each web set company of this case as well as Defendant 2 and 19, and it shall be limited to cyber money accumulated in such cyber money as a small point or Capital for those who run a cinematographic work as well as Defendant 2 and Defendant 19. The cyber money set aside shall not be withdrawn and used in cash until the amount reaches the prescribed amount (for example, 50,000 points), and it seems that there is little amount of profits earned by Defendant 2 and 19 other than Defendant 2 and 19 from copyright infringement. In light of this, it is reasonable to view that each of the web set forth in this case shall be liable at an internal share of the amount. In particular, it is difficult to expect that Defendant 2 and 19 companies in the future file a lawsuit in accordance with the ratio of joint tort liability to each of the web set companies of this case, and it is reasonable to consider the above internal share of the Plaintiff’s damages in this case.

④ The cumulative numbers of cinematographic works of this case compiled by the Korean Film Council are approximately 2.1 million persons.

In full view of the above, the amount of damages suffered by the Plaintiff due to the illegal download of the cinematographic work of this case shall be set at KRW 400,000 per case of the cinematographic work of this case (the extent of 2,146,498 Won 18.6% of the plaintiff's approximate damages).

In addition, considering the limitation of liability ratio of Defendant 2 and 10 (minors) as seen earlier, when calculating the amount of damages to be paid to the Plaintiff by Defendant 2 and 19, Defendant 2 and 19, it can be confirmed by www. Kafic.or. km.

shall be the sum of the amounts stated in this section.

C. Sub-committee

Therefore, Defendant 2 and 19 others (each Defendant indicated in the column for partial acceptance of the attached Table 2) are obligated to pay to the Plaintiff each amount indicated in the column for 'the amount of 'the amount of 'the attached Table 3.', and as requested by the Plaintiff, 5% per annum under the Civil Act from each day after the date of service of the copy of the complaint of this case until February 17, 2015, which is the date of this decision, until February 17, 2015, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day until the day of full payment.

7. Conclusion

If so, the plaintiff's claim against each defendant in the annexed sheet 2. The plaintiff's claim against each defendant in the annexed sheet 2. The claim against each defendant in the annexed sheet 2. cites it for all reasons, and the remaining claim against each defendant in the annexed sheet 2. cites it for reasons within the above limit of recognition, and it is dismissed as it is without reason. The plaintiff's claim against each defendant in the annexed sheet 2. 2. 2. 2. 3. 2. 2. 2. 2.