2014Do9874 A. Violation of Act on Promotion of Information and Communications Network Utilization and Information Protection

(obscenity) obscenitys

[Name of the crime recognized against Defendant A: Information

Act on Promotion, etc. of Utilization of Communications Network Utilization and Information Protection (obscenity)]

(b) Assistance in violation of the Copyright Act;

1.(a) A

2.2.(b) C

Defendants

Law Firm F (For the defendant)

Attorney AP, AP, Q

Incheon District Court Decision 2014No347 Decided July 17, 2014

January 28, 2016

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the aiding and abetting a violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) (hereinafter “Information and Communications Network Act”) and the grounds of appeal on the intent thereof

The court below determined that, as the representative of Defendant C (hereinafter “Defendant C”) who operates Defendant A’s web submering company in the name of Defendant A’s “I”, the profits from the “J of obscenity exclusive use clubs operated by Co-Defendant B in the court below’s judgment constituted a large portion of the sales of the Defendant Company, and that, when the members receive obscenity from the members when they download the obscenity, they could easily assist the Defendant Company in violation of the Information and Communications Network Act (obscenity) by doing acts such as paying KRW 1.5 million as activity expenses each month in order to increase the profits of the Defendant Company, and that Defendant A may have the intent to recognize it.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine and the evidence duly admitted by the first instance court, the lower court’s determination is just and acceptable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine on aiding and abetting and intentional act in violation of the Information and Communications Network Act (obscenity distribution) or by misapprehending the legal doctrine on logic and experience and by

2. As to the ground of appeal on aiding and abetting copyright infringement and its intention

An act of aiding and abetting the infringement of the right of reproduction and transmission protected under the Copyright Act refers to any direct and indirect act that facilitates the infringement of the right of reproduction and transmission of the principal offender. This includes not only aiding and abetting the infringement of the right of reproduction and transmission, but also anticipated and facilitating the infringement of the right of reproduction and transmission in the future before the commencement of the infringement of the right of reproduction and transmission. In addition, it is sufficient to say that the principal offender had dolusent intent to the infringement of the right of reproduction and transmission, and it is not necessary to specifically recognize the date, place, or object, etc. of the principal offender’s infringement of the right of reproduction and transmission and the right of transmission, and further, it is not necessary to finally recognize who the principal offender is (see, e.g., Supreme Court Decisions 2005Do872, Dec. 14, 2007; 2013Do7681, Nov. 28, 2013).

On December 2010 and February 17, 2012, the lower court determined that Defendant A’s act of aiding and abetting copyright infringement and its intentional act can be recognized on the grounds that Defendant A, the representative of Defendant Company, was aware that the film files as above were run or downloaded within the “I”, on the grounds that the cater was requested to suspend reproduction and transmission of the film files with the author’s property right.

Examining the reasoning of the judgment below in light of the aforementioned legal principles and the evidence duly adopted by the first instance court, the judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles as to aiding and abetting copyright infringement and intent thereof, or by violating the principle of priority in the new law or the special law in relation to the Korea-U.S. FTA or the Korea-EU FTA.

3. As to the ground of appeal on criminal immunity under the Copyright Act

Examining the reasoning of the judgment below in light of relevant Acts and subordinate statutes and evidence duly adopted by the court below, it is just that the court below did not recognize criminal immunity under Article 102 (1) 3 of the Copyright Act, and further did not recognize criminal immunity under Articles 102 (2) and 103 (5) of the Copyright Act on the grounds stated in its reasoning, and there is no error of law that affected the conclusion of the judgment by misapprehending the legal principles as to the exemption under Articles 102 (2) and 103 (5) of the Copyright Act or as to the violation of Article 104 of the Copyright Act, or by erroneously recognizing facts beyond the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

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 Jo Hee-de

Justices Lee Sang-hoon

Justices Kim Chang-suk

Justices Park Sang-ok