Plaintiff

Afterma Korea Limited Liability Company (Law Firm Gyeongsung, Attorneys Nam-jin et al., Counsel for the plaintiff-appellant)

September 24, 2008

Seoul Central District Court Decision 2006Gahap106779 Decided February 15, 2008

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 27,03,33 won with 5% interest per annum from September 26, 2006 to November 19, 2008, and 20% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be ten minutes, which shall be borne by the plaintiff, and the remainder shall be borne by the defendant.

4. The portion paid with the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 253,700,000 won and 20% interest per annum from the day following the delivery of a copy of the written application for conciliation of this case to the day of complete payment. The defendant shall publish the apology about the infringement of author's moral rights in five parts in the second place in Korea.

1. Basic facts

The following facts are not disputed between the parties or may be acknowledged by comprehensively taking into account the following facts: Gap evidence 2, 3, 5, and 7 1 through 413, Gap evidence 4-1 through 33, Gap evidence 50-1 through 79, Gap evidence 51, and 52-1 through 65, Eul evidence 6, 7, Eul evidence 8-1, 2, Eul evidence 9-1 through 3, Eul evidence 10, Eul evidence 11-1 through 3, Eul evidence 12-1, and 2.

A. Operation of the Plaintiff website and the posting of photographs

While the Plaintiff, as a photographer, has opened and operated a “(1 omitted)” and “(2) website (hereinafter “Plaintiff website”) for the purpose of posting and leasing a photographic work taken by himself/herself by centering mainly on natural scenic views, the Plaintiff posts the Plaintiff’s photographic work in size 765 x 510 graphics (the minimum number of name project units constituting the pixel and screen x 18 cm in the case of printing) (27cm in the case of printing).

B. The defendant's image search services and the classification of the images provided by the defendant

(1) The Defendant, a corporation established for the purpose of the online service providing industry, etc., opens and operates “www.yahoco.co. Ltd.” (hereinafter “Defendant website”) as an Internet portal site providing community services, search services, etc.

⑵ 피고 웹사이트에서는 홈페이지(kr.yahoo.com)와 ‘이미지박스’ 웹페이지(kr.image.yahoo.com)에서 이미지 검색서비스를 제공하고 있으며, 피고의 이미지 검색서비스를 통해 제공되는 이미지는 그 출처에 따라, ㈎ 피고 웹사이트가 아닌 다른 일반 인터넷 웹사이트에 게시된 이미지가 검색로봇과 같은 이미지 수집프로그램을 통해 수집되는 경우(이하 ‘외부이미지’라고 한다)와 ㈏ 피고의 사이트에 회원으로 가입한 이용자에게 제공되는 ‘블로그’, ‘이미지박스’, ‘재미존’ 등의 이미지를 올릴(upload, 이하 ‘업로드’라 한다) 수 있는 전자게시판 서비스를 통해 피고의 회원들이 피고의 서버에 업로드한 이미지가 검색프로그램을 통해 검색되는 경우(이하 ‘내부이미지’라고 한다)의 두 가지로 나뉜다.

C. The defendant's image provision method

(i)Provision of external images by detailed recording method;

In the case of external images searched through the classification of “overseas images” on the Defendant website, the Defendant, using the image screening program, searches and collects the image files posted on various Internet web sites, reduced or changed them to approximately 3 cm wide, and approximately 2.5 cm long from 2.5 cm long (hereinafter “Titch image”), and stored the Internet address in which the image and original image are stored in the server. In addition, if the user enters the search language, he/she shall list the Titch image corresponding to it, and again, if the user selects the original image on the central page of the screen, as shown in Appendix 1, then 500 x 30 cm (17.64 cm in size x 13 cm in size and 13 cm in size, and then, he/she shall display the original image image file’s image image image image image image to the bottom of the Internet screen (hereinafter “TBU”).

d. Provision of external images by link

In the case of external images searched through the classification of “welth image” in the Defendant website, the Defendant searched and collected the image file posted on various Internet web sites by using the image screening program, and stored the Internet address where the original image and the original image are stored in the server. However, if the user enters the search language, it is divided by the screen page of the Defendant website as shown in the attached Form 2, and then the upper end of the search results by dividing it into upper and lower parts of the screen page as shown in the attached Form 2, and by linking it to the Internet address where the original image is stored in the Internet address where the user selected by the user, the Defendant displayed the original web page form between the lower end and the lower end of the above screen, and by posting the “the original image at the lower end of the website” (hereinafter referred to as “the original image”).

【Provision of an internal image in accordance with the detailed recording method

On the other hand, the defendant provides the members who have concluded a service contract with the defendant with the electronic bulletin board service that can display their images through a personal service, such as a "blog" or "visual gambling". The defendant's members may choose whether to provide them for search when displaying internal images on the bulletin board.

If members run the internal image using the message board function of “blog” and “slogs”, the Defendant: (a) extracted the image of the above image from the Defendant’s server; (b) stored separately in the Defendant’s server; and (c) recorded the search image into the Defendant’s server; and (d) if the user selects a specific ker’s image, then indicated the original image on the central page of the screen as shown in the attached Table 3. In addition, if the user selects a specific ker’s image, the Defendant indicated the content, file information, source (clog, image, etc.) and the image of each ker’s image, each of the detailed image of each ker’s image shall be circulated automatically, and if the user selects a “slog’s original image” or “slog’s image, etc., the original image shall be moved to the original image, etc.

D. Search of Plaintiff’s photograph on Defendant website

(1) If the Defendant’s “Cinebling” page entered the search language “○○-” into the Plaintiff’s web page, the photograph (Evidence 2-1) posted on the Plaintiff’s web site is searched from the classification of “overseas image,” and 220 photographs posted on the Plaintiff’s web site, such as those searched by a third party, and one photograph reproduced by a third party and posted on another web site (Evidence 32-1 through 160, 162 through 175, 177 through 207, 209 through 214, 217 through 225, 228, and 200, the Plaintiff’s first and second evidence posted on the Plaintiff’s web site (Evidence 2-161, 176, 208, 217, 228, 216-26, 217, 227-26, 215, 227, 221-26, 21 of the Plaintiff’s.

본문내 포함된 표 원고의 사진 최초 게시일 최종 게시일 총 게시 월수 갑 제2호증의 1 내지 90 2005. 3. 22. 2006. 5. 20. 1,260(14 × 90) 같은 91 내지 100 2003. 12. 17. 2006. 5. 20. 290(29 × 10) 같은 101 내지 160, 162 내지 175, 177 내지 207, 209 내지 214, 217 내지 225, 228 2005. 3. 22. 2006. 5. 20. 1,694(14 × 121) 합계 ？ ？ 3,244

B. The Defendant’s web page entered the search language “○○-” into the Defendant’s web page, the Plaintiff’s photograph (No. 229) posted on the Plaintiff’s website, such as being searched from the classification of “welry image” (No. 229) or the photograph posted on the Plaintiff’s website by a third party, etc., or the total of 63 copies (No. 229 and No. 291) of the external image, which is the reproduction of the said photograph, posted on another website, was in a position that can be searched through the Defendant’s search service from March 2005 to December 206.

(1) On January 1, 2005, the Defendant’s member posted a copy of the photograph (No. 292) posted on the Plaintiff’s website in its name on the bulletin board of the Defendant’s image gambling site, and the Defendant’s members posted a copy of the photograph (No. 292 through 413, No. 266 (No. 292 through 50, No. 50-1 through 65), which is the reproduction of the photograph posted on the Plaintiff’s website, between January 1, 2004 and January 207, approximately 266 of the internal image (No. 292 through 413, No. 50-1 through No. 52, No. 52-1 through 65). The above internal image was in a state in which the Defendant’s web page can be searched through the Defendant’s search service in detail.

E. Change in the defendant's image method

On May 20, 2006, the Defendant changed the method of providing search service from the link to the detailed recording method as to the external images searched through the classification of the “overseas images” in the web page of the Defendant’s “visual gambling” (the Defendant asserted that he suspended the above “overseas images” service on February 21, 2006, but in light of the respective descriptions of the evidence No. 7-1 to 228, it can be recognized that the above service was provided until May 20, 2006) after the instant lawsuit was brought, the Defendant changed the way of linking from the detailed recording method about the internal images around May 28, 2007.

2. The plaintiff's assertion

A. Grounds for liability

The Defendant collected the Plaintiff’s photograph through image gathering program from the Defendant’s website members who carried the Plaintiff’s web site or the Plaintiff’s web site’s photograph without the Plaintiff’s permission. The Defendant directly infringed the Plaintiff’s right of reproduction, transmission right, and display right by directly expressing the Plaintiff’s name as the author in providing the above detailed image image, and thereby violated the Plaintiff’s right of attribution and the obligation of origin display by facilitating the Defendant’s direct infringement of the Plaintiff’s right of reproduction, transmission right, display right, and name display right by not expressing the Plaintiff’s name as the author in providing the above detailed image, and aiding and abetting the Plaintiff by holding a photograph-sharing event, etc., and thereby making it easier for the Defendant’s members to directly infringe the Plaintiff’s right of reproduction, transmission right, display right, and name display right.

(b) Scope of damages, etc.

The Plaintiff’s photographic work infringed upon by the Defendant is 557 pages, and the total period for which the Defendant posted each of the above pictures on the web page is 10,148 months, and this Court recognized the Plaintiff’s photographic work’s user fee per annum 300,000 won per annum in the preceding case between the Plaintiff and the Defendant (this Court Decision 2006Na24171 delivered on December 26, 2006). As such, the Plaintiff’s photographic work was 253,70,000 won [10,148 months x 300,000 won per annum x 12 months per annum] as necessary to restore honor regarding the payment and the infringement of the right to indicate the author’s moral right, and the author seeks to publish in five copies of the apologys on the infringement of the author’s moral right in the second case in Korea.

3. Determination as to the infringement of copyright

A. The image part of Doz. Doz.

First, with respect to the part of the Plaintiff’s photograph provided by the Defendant as her image through detailed news and link, Article 25 of the former Copyright Act (amended by Act No. 8101, Dec. 28, 2006; hereinafter the same) provides that a work already made public may be quoted within a reasonable scope in compliance with fair practices for news reporting, criticism, education, research, etc. The determination of whether the work is made consistent with fair practices should be made by comprehensively taking into account the purpose of quotation, nature and quantity of the work, the contents and form of the work quoted, the method and form of containing the cited work, the users’ general concept, and the demand for the original work (see Supreme Court Decision 97Do227, Nov. 25, 1997).

As to this case, if the size of the original image is significantly reduced compared to the original image, it seems that the expanded image would be distinguished from the original image even if modified and supplemented by using a graphic program. Since the information provided through the Internet is too broad, Internet search service is operated to allow Internet users to access various information more easily, public nature can be recognized. In the case of the image search service provided on the Defendant website, the act of posting the reduced image is merely an act of listing the original image to allow Internet users to have access to the image information easily. Considering the fact that it is difficult to use it as the original image only by itself, it is difficult to view it as identical to the original image, such as the original image, the Plaintiff’s act of copying the image within the scope of 70th of the original image (see, e.g., Supreme Court Decision 200Da2750, Sept. 7, 200).

B. External image part

(1)The detailed statement method

㈎ 복제권 등 침해

According to the facts found above, the defendant has reproduced the photograph or external image of the copy owned by the plaintiff to 221 (a evidence 1 through 160, 162 through 175, 177 through 207, 209 through 214, 217 through 225, 228, hereinafter "the image of this case"), which is the reproduction of the plaintiff's copyright, without the plaintiff's permission, and then has provided it for the use of multiple Internet users by converting it to 500 x 30 graphic (a approximately 17.64 cm in printing x 13.23 cm). Thus, the defendant offered it to the plaintiff's right of reproduction, display, and transmission under Article 18-2 of the former Copyright Act.

㈏ 성명표시권 침해, 출처명시의무 위반 여부

However, with respect to the violation of the right to indicate the name and the obligation to indicate the source, Article 12(1) of the former Copyright Act provides for the author’s right to indicate the name, but it is recognized as unavoidable in light of the nature, purpose of use, form, etc. of the work pursuant to the proviso of Article 12(2) of the same Act. According to the above, although the Defendant’s website did not indicate the Plaintiff’s real name while posting the image of this case in a detailed manner, it is immediately below the image of this case, it is connected to the Plaintiff’s web page where the Plaintiff’s real name is indicated when selecting the address of the original image of this case, and the Plaintiff’s name is connected to the Plaintiff’s web page where the Plaintiff’s real name is indicated. As such, it is difficult to view the Plaintiff’s real name or the Plaintiff’s real owner’s identity cannot be seen as the Defendant’s notification of the original image of this case without permission (the Plaintiff’s web page is not a photograph, but a third party’s search engine’s name.

㈐ 피고의 주장에 관한 판단

The defendant argues that the plaintiff's work on his web site does not technically exclude the search process by the search channel program, and that the copyright information is not inserted, thereby allowing users to know whether it is protected by the copyright. Thus, as long as the plaintiff cites or implieds the distribution of his photograph, this does not constitute a case of consent to disclosure. The defendant asserts that the plaintiff's photograph, which is the work already made public, is cited to the extent consistent with the fair practice within the reasonable scope, does not constitute infringement of the copyright.

The plaintiff cannot be concluded to have granted implied permission to use his photographic works solely on the ground that the plaintiff did not exclude the search by search engines or did not insert the sign into the copyrighted works, as alleged by the defendant. The plaintiff's photographic works are works made public on the plaintiff's website and the search service provided by the defendant is performing the function of allowing Internet users to easily access necessary information. Meanwhile, the image of this case offered by the defendant by detailed announcement method is 50 x 30 - graphic size (17.64 cm in case of printing x 13.23 cm) and its sea level reaches the search engine, and it cannot be concluded that the plaintiff's image can not be seen as being substituted by the plaintiff's own image in terms of the quoted contents and quantity of the work in preparation for the plaintiff's automatic image x 18 cm. Thus, the plaintiff's assertion that the above image of this case provided by detailed announcement method can not easily be seen as being substituted by the plaintiff's own image and it can not be seen as being substituted by the plaintiff's own image.

She Do-Linking Method

㈎ 피고가 링크방식에 의하여 원고의 일부 사진(갑 제2호증의 229 내지 291)에 대한 복제권, 전송권, 전시권 등을 침해하였다는 점에 대하여는 갑 제3호증의 229 내지 291의 각 기재만으로는 이를 인정하기 부족하고 달리 위 사실을 인정할 증거가 없다.

㈏ 오히려 앞서 인정한 사실에 의하면, 피고 웹페이지의 링크방식은 원고 웹페이지를 비롯하여 선택된 썸네일 이미지의 원본 이미지가 있는 웹페이지로 직접 연결하여 화면의 하단에 그 페이지의 내용을 그대로 표시하여 주는 방식에 불과하고 원고 사진의 복제나 전송 등의 행위가 발생하지 아니하므로, 특별한 사정이 없는 한 이를 원고 사진의 복제, 전송, 전시행위와 동일시할 수는 없다 할 것이다.

㈐ 이에 대하여 원고는, 그가 자신의 사진 작품에 2005. 1.경부터 마우스 오른쪽 버튼 차단 장치 등 복제방지조치를 설치하였는데 피고는 링크방식을 통하여 위 복제방지조치를 무단으로 제거하였으므로 이는 구 저작권법 제92조 제2항 에서 침해로 보는 행위인 ‘정당한 권리 없이 저작권 그 밖에 이 법에 의하여 보호되는 권리의 기술적 보호조치를 제거·변경·우회하는 등 무력화하는 것을 주된 목적으로 하는 기술·서비스·제품·장치 또는 그 주요부품을 제공·제조·수입·양도·대여 또는 전송하는 행위’에 해당한다는 취지로 주장하나, 갑 제5호증의 229 내지 291의 각 기재만으로는 위 주장사실을 인정하기 부족하고 달리 이를 인정할 충분한 증거가 없으므로, 위 주장은 이유 없다.

㈑ 따라서 링크방식의 이미지 제공에 관한 원고의 저작권 침해 주장은 이유 없다.

C. Internal image part

(1) The act of aiding and abetting the infringement of the right of reproduction under the Copyright Act refers to all direct and indirect acts that facilitate the infringement of the right of reproduction of another person. It is possible to assist the infringement of the right of reproduction as well as assist by negligence as well as assist by negligence. In the case of aiding and abetting by negligence, the content of negligence refers to the act of aiding and abetting and abetting by negligence on the premise that it has a duty of care not to assist the infringement of the right of reproduction (see Supreme Court Decision 2005Da11626, Jan. 25, 2007).

D. According to the reasoning of the judgment below, the Defendant’s members posted approximately KRW 266 (No. 292 through 413, No. 50-1 through 79, and No. 52-1 through 65 of the evidence No. 50) of the Plaintiff’s photograph on the bulletin board, such as his/her own image gambling, “blogs,” and “blogs,” thereby infringing the Plaintiff’s right to reproduction, transmission, etc. of the above photograph. Thus, we examine whether the Defendant aided and abetted the Defendant by violating the duty of care to not assist the Plaintiff’s copyright infringement.

Comprehensively taking account of the aforementioned quoted evidence and the purport of the Plaintiff’s evidence evidence No. 3, if the Defendant’s members were to know that it would be difficult for them to carry out copyright-related activities, such as the Plaintiff’s use contract, and then that they independently manage and operate, in principle, only the person who opened the contract or who opened the contract. Members may choose whether to disclose the image of the contract. The Defendant is legally responsible for its use with respect to its musical services, including Bloves, under the terms and conditions of use (Article 4 subparag. 7 of the Terms and Conditions), and the Defendant appears to have carried out legitimate pictures as its business (Article 50,000). However, if the Defendant’s copyright-related acts were not carried out by the Defendant’s copyright-related users, it is hard for them to view that it would have been carried out by the Plaintiff’s copyright-related users to take measures to prevent infringement of their rights, such as the Plaintiff’s copyright-related users’ infringement of their rights, and that the Defendant’s reproduction and reproduction of the pictures are widely known to the public.

Article 756 of the Civil Act provides that the defendant shall not be liable for aiding and abetting the infringement of the plaintiff's photograph by his members. Since the defendant cannot be viewed as "a person who has engaged in any business by using another person" in relation to the defendant's members, the defendant shall not be liable for the act of the members. Thus, the plaintiff's claim for this part of this case is without merit.

4. Scope of damages.

Furthermore, we examine the scope of damages that the Defendant is liable to compensate for to the Plaintiff.

Article 93(2) of the former Copyright Act provides, “When an author’s property right holder, etc. claims compensation from a person who has intentionally or negligently infringed his/her right, the amount equivalent to the amount ordinarily entitled to receive by the exercise of his/her right may be claimed as the amount of damage suffered by the author’s property right, etc.” In this context, the amount equivalent to the amount ordinarily entitled to receive by the exercise of the right refers to the amount objectively equivalent to the amount that the infringer would have paid as the price for use if he/she had obtained the permission for use of the work (see Supreme Court Decision 9Da69631, Nov. 30, 2001). Meanwhile, when the court finds it difficult to calculate the amount of damages pursuant to the provisions of Article 93, even if it is found that the damage had occurred, it shall be recognized in consideration of the purport of pleading and the result of examination of evidence (Article 94 of the former Copyright

Therefore, in light of the overall purport of the pleadings, the case holding that the plaintiff, on June 14, 2002, allowed non-party 2 to use one point on the web site for the purpose of Internet homepage for six months, and paid 220,000 won to the non-party 1 on June 7, 2004 as well as 1,50,000 won to use the photograph for the web site without permission for the purpose of using it on the web site, and it was hard to view that the plaintiff made the above contract to use it on the non-party 3 corporation without permission for the purpose of using it as one on the web site and received 1,50,000 won from the non-party 1 to the non-party 3 corporation on July 26, 2004, and that the plaintiff paid 1,50,000 won to the non-party 1 corporation on the ground that the plaintiff's use of the photograph for the purpose of using it on the web site without permission.

Therefore, it should be based on the user fee that is generalized in the industry. However, in light of the fact that the image of this case is not the original image but the service is not provided at all times, but is merely exposed once according to the result of the search, and that it is possible to immediately access the original image by indicating the source at the bottom of the image, it is not appropriate to use the image generally provided in the industry as a basis for the general usage fee. Accordingly, it is difficult to calculate the amount of damages pursuant to Article 93 of the former Copyright Act. Accordingly, the reasonable amount of damages should be recognized in consideration of the purport of the pleading and the result of the examination of evidence.

However, comprehensively taking account of the overall purport of the arguments in Gap evidence Nos. 57 and 67, the fact that the plaintiff filed a claim for damages against the defendant from February 2, 2002 to October 2002 due to copyright infringement as to Chapter 63 of the plaintiff's photographic work (2006Na24717), and the plaintiff filed a claim for damages against MMS Co., Ltd. from September 27, 2002 to October 4, 2002 (2006Na24164) due to copyright infringement as to Chapter 60 of the plaintiff's photographic work (2006Na24164), and the plaintiff calculated the compensation for damages from September 27, 2002 to early October 2002 by the court against the non-party 4 by considering the plaintiff's royalty as the annual amount of damages calculated as 300,000 won per the plaintiff's photographic work (206Na24157).

① In full view of the purport of the entire pleadings as indicated in No. 4-1 through No. 17, the sales price of the image from website productions does not exceed 100,000 won per page, and even in the case of foreign shot photographs for the same purpose, it is recognized that annual user fee is 1,50,000 won. ② Since the Plaintiff’s photograph was distributed on the Internet around 2002, it was widely disseminated on the Internet portal sites of Korea during 2006, which is the point of infringement of the last copyright of the images of this case, and accordingly, the Plaintiff was able to recover damages from 20 years ago to 30 years ago, by filing a lawsuit seeking compensation for damages similar to the above images of this case against the Defendant, including the Defendant, and ③ The above precedents acknowledged that the Plaintiff’s photograph was 20 years to 30,000,0000 won per page of the Plaintiff’s photograph and 206,000,000 won per page of the film.

Therefore, in the above facts, since the contents of the image of this case are generally accessible on the Internet, and there is no indication that the plaintiff can know the plaintiff's copyright, such as the sign sign, it is anticipated that the general Internet users or the Internet portal company like the defendant will suffer considerable difficulties in confirming the legal relationship of rights and duties as to the image of this case or taking measures to block unauthorized reproduction, transmission, etc., and in the situation where the mass production of free image by ordinary users and distribution on the Internet are complicated due to the mass distribution of high-performance digital camera, compared to the public nature provided by the smooth search function of the image of this case, it is difficult to particularly consider the interests of the copyright holder of the general photographic work that did not display any copyright like the image of this case. In full view of all the circumstances revealed in the argument of this case, it is reasonable to evaluate the legitimate length of the image of this case at least 10,000 won per year.

Therefore, as seen earlier, the period for which the Defendant provided a detailed image 221 and infringed the Plaintiff’s copyright is 3,244 months. Thus, the amount of damages that the Defendant is liable to compensate for to the Plaintiff is 27,03,333 won (the infringement period x 3,244 months x 100,000 won/12 months per annum per head, and less than 12 months). Thus, the Defendant is obligated to pay to the Plaintiff damages at the annual rate of 27,03,333 won per head, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from September 26, 2006 to the date following the delivery of a duplicate of the instant application for conciliation, which is obvious as requested by the Plaintiff.

5. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed for reasons. Since the judgment of the court of first instance is unfair with a different conclusion, the part against the plaintiff ordering payment is revoked, and the defendant is ordered to pay the above amount, and the remaining appeal of the plaintiff is dismissed for reasons. It is so decided as per Disposition.

[Attachment]

Judges Park Dong-dong (Presiding Judge)