2019 Gohap573683 Action for the prohibition of sale

A Company A

Law Firm Roex, Counsel for the defendant-appellant

Attorney Kim Young-chul

B

Attorney Choi Han-hoon et al., Counsel for the defendant

November 18, 2020

February 5, 2021

1. The defendant shall not sell, distribute, or let a third party sell and distribute, any product key of the C Program and any product key.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The Plaintiff is a company that develops and sells a computer program and various peripheral devices, and is the holder of author’s property right of a DNA program, which is a computer operation system (hereinafter “instant program”).

B. The Plaintiff provided a product key for non-relicious use of the instant program for the purpose of learning only for university students who have joined the so-called E program, and allowed the use of the instant program to the above university students.

C. The defendant, who engages in the mail order business with the trade name of "F," etc., sells products key to university students who participated in the E program in G and H, etc. to general consumers.

D. The arm’s length price of the instant program package is KRW 170,000. Meanwhile, the Defendant sold the product key of the instant program from KRW 3300 to KRW 27,000 in online shopping mall.

E. When a consumer purchases a product key, the defendant shall transmit the product key, method of installation, matters of attention, etc. to the consumer’s e-mail account as follows:

Product code********************************** may be left away on the A Company’s website.

At the same time, the certification of not less than 2 pcs is in violation of the license.It may fall at the same time, and in this case, any refund measure may be taken, so frequent cancellation (at least three months shall be maintained at the minimum) may cause cable to be the cause of cable, so the phrase used only at the time of a computer change is not more than 200 p.m. or actually registered, but it is hot from the Liber.On the other hand, if the above error phrase is installed after it is installed, it shall not be 1.m. closed on the first day of the 2nd day of the 1st century, and the first day of the 2nd day of the 1st century, and then it shall be 4th day after the opening of the SUI and the first day of the 1st day of the 1st century, and the first day of the 3th day of the 1st century and the first day of the 1st day of the 1st day of the 3th day of the purchase and the first day of the 1st day of the opening.

F. On January 20, 2017, the original branch of the Chuncheon District Court recognized the following criminal facts as a violation of the Copyright Act, and issued a summary order sentencing a fine of one million won to the Defendant. The said summary order was finalized on March 1, 2017.

On July 4, 2016 through July 4, 2016, the Defendant, as a person attending K University, injected illegally reproduced N and 0 program products with the name of “F,” and sold them for KRW 44,900 on May 27, 2016, the Defendant infringed the Defendant’s property rights by selling COA labels of forged 0 products to KRW 150,000,000, for P products certified by a third party on July 4, 2016.

【Ground for recognition】 The fact that there has been no dispute, entry of Gap's 1 through 8, 12, and 13 (including branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. Whether author's property right has been infringed

A. Computer program scenario number is a technical protective measure, which is a means to confirm whether a computer program has the authority to install or use a computer program. The instruction to proceed with a computer program when a certain format is entered, and is merely a data that is processed by the program with the expression of an order, and thus does not constitute the publication, reproduction, adaptation, translation, distribution, publication, or transmission of a computer program, and such act alone does not constitute the publication, reproduction, translation, distribution, or transmission of a computer program, nor does it be readily concluded that a computer program copyright has been infringed solely on. However, if a group of persons using a reproduced or distributed gram number copied a program and the act is punished as an act that infringes a computer program, the reproduction or distribution of a gram number can be an act that facilitates the above act and may constitute an aiding and abetting act of infringing a program copyright (see, e.g., Supreme Court Decision 2001Do2900, Jun. 28, 2002).

Article 46 of the Copyright Act provides that an author of author’s property right may allow another person to exploit his/her work. A person who has obtained such permission may exploit the work within the extent of the method and conditions so permitted. The right to exploit the work by such permission may not be transferred to a third party without the consent of the author’s property right. Therefore, a third party who has not been permitted by the author to exploit the work may not reproduce the work, and even if he/she was permitted to exploit it, he/she may exploit it only within the extent of such permitted method and conditions, and may not transfer to a third party the right to exploit it without the consent of the author’s property right.

B. The Defendant’s sales of the product key of the instant program, which is not the instant program, does not constitute an infringement of author’s property rights, such as the right of reproduction on the instant program. However, the Defendant sold the product key of the instant program to general consumers, who are not authorized to use, by a university student affiliated with the instant program. The buyer’s use of the instant program constitutes an infringement of author’s property rights, such as the right of reproduction, etc. on the instant program, and the Defendant’s aforementioned sales of the product key constitutes aiding and abetting the infringement of author’s property rights, as it facilitates the buyer’s infringement of author’s property rights.

C. The defendant asserts that the plaintiff has free permission to use the program of this case on the grounds that any person can freely distribute the installation files of the program of this case without compensation and no impediment exists to the installation without entering the product key.

According to the evidence Eul evidence Nos. 1 and 2, the plaintiff's home page page is posted a link that can download the installation file of the program of this case, any person may download the installation file of the program of this case through the above link, and even if the product key is not entered in the process of installation, it is recognized that the program of this case can be installed even if the product key is not entered. However, according to the above evidence and the whole purport of oral arguments, the plaintiff's program download provision screen of this case should be first secured in order to read "the media creation tool of this case can be downloaded and implemented." After that, if the product key is not entered in the process of installation of the program of this case, it is also recognized that it has the stage of obtaining product certification through the product key after the completion of installation.

Whether the act of reproduction and use of the instant program is legitimate or not should be determined on the basis of whether such act is technically feasible, but on the basis of whether the Plaintiff was authorized to use the instant program. Even though the Plaintiff did not request the certification of the authentic use or confirm the existence of the license to use (the license) before installing the instant program, it cannot be deemed that the Plaintiff expressed an intent to allow the general use solely for that reason. Moreover, the Plaintiff cannot be deemed to have freely permitted the use solely on the fact that the installation file may be installed without the provision through the Plaintiff’s website or product key. In light of the Plaintiff’s screen text of the instant program download provision, it is reasonable to deem that the Plaintiff’s installation process was planned by the user or the Plaintiff who wants to use the instant program before purchasing the instant program from the user or the Plaintiff, and to allow the installation of the program within such limited scope. There is no evidence to deem otherwise by the Plaintiff that the Plaintiff had obtained the license to use the instant product from the Defendant. The Defendant’s assertion is without merit.

3. Obligation to suspend the act of infringement;

The Defendant’s act of selling the instant program product key in the online shopping mall constitutes aiding and abetting the Plaintiff’s infringement of author’s property rights on the instant program. As such, the Defendant is obligated not to sell, distribute, or allow a third party to sell and distribute, refined labels indicating product key and product key of the instant program pursuant to Article 123(1) of the Copyright Act.

4. Conclusion

The plaintiff's claim is justified, and it is so decided as per Disposition.

The presiding judge shall have jurisdiction over a judge

Judges fixed succession;

Judges Jeong-ho