2013Do7681 Violation of the Copyright Act

1. A;

2. B (former Trade Name: C)

Prosecutor (In respect of Defendants)

D Law Firm (For the Defendants)

Attorney E, F, and G

Seoul Western District Court Decision 2013No282 Decided June 13, 2013

November 28, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Western District Court Panel Division.

The grounds of appeal are examined.

1. The 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’s right of reproduction. This includes not only aiding and abetting the infringement of the right of reproduction and transmission of the principal offender’s right of reproduction but also facilitating the infringement of the future right of reproduction and transmission prior to commencement of the infringement of the right of reproduction and transmission. In addition, it is sufficient to have dolusent intent about the infringement of the right of reproduction and transmission carried out by the principal offender, and there is no need to specifically recognize the date, place, object, etc. of the principal offender’s infringement of the right of reproduction and transmission, and further, there is no need to clearly recognize who is the principal offender (Supreme Court Decisions 2005Do6056, Apr. 29, 2005; 2007; 2003Do60

12. See, e.g., Supreme Court Decision 2005Do872 Decided 14, 2005

2. According to the evidence duly admitted by the lower court, the following circumstances are revealed.

① Defendant A, as the representative director of Defendant B Co., Ltd. (hereinafter “Defendant Co., Ltd.”), operated the instant site of “H”, Defendant A predicted that the instant site was distributed through the exclusive program without permission of the owner of author’s property rights, but Defendant A provided the instant site users with services, such as cartoon, animation, motion pictures, motion pictures, motion pictures, and novel files, and thereby gaining profits therefrom.

② According to the above provision of the Defendant Company’s above service, some of the users of the site of this case opened the novel files of this case as indicated in each crime sight table as indicated in the lower judgment’s holding, without permission of the holder of author’s property right, and allowed other users to download them.

③ Around August 14, 2007, the Korean Copyright Association of Korea, in which part of the victims of the instant case were affiliated, did not attach to the Defendant Company the data verifying that the copyright holder is the right holder of the instant copyrighted work by e-mail, but sent a request for copyright protection and a list of works. Around May 14, 2008, the Korean Copyright Association of Korea, which was delegated with authority by the Korean Copyright Association, sent a written request for technical measures to cut illegal copyrighted works, along with supporting documents, to the Defendant Company. On the list, some of the novels of this case were included.

④ In addition, the victims of the instant case started to work on August 20, 2009 so that the files of the instant case can be downloaded to the other users throughout the period from May 25, 2009 to August 9, 2009. The Defendants filed a complaint for violating the Copyright Act on the grounds of the infringement of the said Act on February 2010 to March 2010.

⑤ From October 2009, Defendant A, in relation to a work requested to take technical measures as above, only took measures to restrict search only for the words identical to that set forth above, but did not take all measures to restrict search on the parts contained in subparagraph (a). It was also possible for users to download a notice set forth in subparagraph (a) through search with partial text because the measures to restrict transmission were not taken properly.

In full view of the above circumstances, it is reasonable to deem that Defendant A, as the representative director of the Defendant Company, had been engaged in the infringement of the right to reproduce and transmit the instant site users at least with dolusent intent while operating the instant site. Moreover, the Defendants cannot be deemed to have taken technical measures to prevent infringement of the copyright as prescribed by Article 102(2) of the former Copyright Act (Amended by Act No. 10807, Jun. 30, 201).

3. Nevertheless, the court below affirmed the judgment of the court of first instance which acquitted the Defendants of the charges of this case on the ground that it is insufficient to find the Defendants guilty of the crime of aiding and abetting copyright infringement, since the Defendants were unable to recognize that there was a criminal intent to commit the act of aiding and abetting copyright infringement, and it is insufficient to conclude that the Defendants were aware that each of the works of this case constitutes copyright infringement.

Such judgment of the court below is erroneous in the misapprehension of legal principles as to aiding and abetting offenders and the implementation of technical measures under Article 102 (2) of the former Copyright Act, which affected the conclusion of the judgment.

The prosecutor's ground of appeal pointing this out is with merit.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han

Jeju High Court Justice Yang Chang-soo

Justices Park Byung-hee

Justices Kim Jae-tae