Defendant 1 and one other

Prosecutor

Maternity and weight

Law Firm, Kim & Lee, Attorneys Jeon-tae et al.

Seoul District Court Decision 2001Da8336 delivered on May 15, 2003

The judgment of the court below is reversed.

The Defendants are not guilty.

I. Summary of the Prosecutor’s Appeal

The facts charged of this case are as follows: (a) the specific acts of certain principals [the users of the Sori Sea Program (ID) each bagzi19, sh parku, tenkhu, kfkh15,comelf, daphn90] among them are shown as examples of the crimes due to the nature of the crime, including a minimum of 1.5 million principals; (b) and (c) the facts charged of this case are sufficiently specified through amendments to the indictment, since there is a room for the court to limit the scope of the object to be tried; and (d) there is no difficulty in the court to limit the scope of the object to be tried; and (e) there is no concrete fact that satisfies the special composition requirements of the crime committed by the principal offender or that it is not specified. Therefore, it is improper to dismiss the prosecution of this case solely on the ground that the court below did not specify or specify the specific facts that the special composition requirements of the crime

Ⅱ Judgment on the Grounds for Appeal

1. Prior to the determination of the reasons for appeal by the prosecutor, the Defendant: (a) conspired 400,000 members of the instant case to use the instant music files for their own use; (b) the Defendant’s reproduction and distribution of the instant music files at 00,000 (www.soba.com); and (c) the Defendant’s reproduction and distribution of the music files at 20,000,000 connected to the aforesaid music files to prevent the infringement of the victim’s right to use the music files at 0,000 if the Defendants installed and operated the instant music files at 0,000, then the Defendant’s reproduction and distribution of the music files at 20,000, and then the Defendant’s reproduction and distribution of the music files at 20,000,000, which were stored on the Internet homepage, and then made it easier for users to use the same digital files at 20,000,000.

2. However, the Defendants still dispute the legality of the indictment procedure, and further, the prosecutor and the Defendants dispute the establishment of the crime of this case. Thus, the following is examined: (1) First, in relation to the legality of the indictment procedure of this case, the determination of the modified facts charged and the legality of the complaint in relation to the legality of the indictment procedure of this case; and (2) Next, in relation to the guilt and innocence of the crime of this case, the following: (1) the operating method of the “small Sea” system developed and distributed by the Defendants; (2) whether the users of sound sea services infringe the victims’ right to reproduction and distribution, which is the victims’ author’s property right; and (3) whether the Defendants are liable for aiding and abetting the principal offender’s copyright infringement.

Ⅲ. Determination on the legality of the instant indictment

1. Whether the facts charged in this case are specified

A. Summary of the Defendants’ assertion

The charges of this case, which were modified as above, are still not specifically specified in the facts charged of this case’s violation of the Copyright Act, which is the principal offender’s crime. In other words, mp3 files (referring to MP3 (MPEG-1 Ldayer 3) that the principal offender had access to the sound sea server using the sound sea program and stored in his own joint database with another user from other users, and were stored in his own computer, can not be viewed as a specific criminal act that is a music file, which is a music file, was created based on the sound or chlod (m3 files) produced by the victims, a neighboring right holder, and further, it cannot be viewed as a specific criminal act that was written at any time more than 1 year ago, without specifying the principal offender at any time, where the principal offender, and how the mp3 files were downloadd or who was the other party.

B. Determination

(1) Article 254(4) of the Criminal Procedure Act provides that the facts charged shall be stated in a way that can specify the facts by specifying the time, date, place, and method of the crime. The purport of the above provision is to limit the object of the trial to the court and to facilitate the exercise of the right of defense by specifying the scope of defense against the defendant. Thus, it is sufficient that the facts charged are stated to the extent that it can distinguish the facts from other facts (see Supreme Court Decisions 9Do2934 delivered on Nov. 12, 1999). Meanwhile, in stating the facts charged by an aiding and abetting a criminal, it shall clearly state the specific facts that meet the requirements for the composition of the principal offender who is the prerequisite (see Supreme Court Decisions 8Do251 delivered on Apr. 27, 198; 82Do715 delivered on May 25, 1982; 28Do2840 delivered on Dec. 27, 1983).

(2) As seen above, as to the facts charged in the case of this case, the prosecutor: (a) specified and changed the specific contents of the records produced by the victims of this case or the CD, on the premise that all files were created based on the sound records produced by the victims of this case or CDs, the principal offender was connected to the sound marine server using the sound marine program and then stored the above files with the victim's name in a mp3 file; (b) the place of the establishment of each sound marine program and the mp3 file download; (c) the specific behavior pattern; and (d) the time when the victims of this case were connected to the mp3 file received by the mp3 file in the mp3 file; and (e) the victim or the victims of this case who actually produced the mp3 file that the mp3 file received by the principal offender in this case were stored in the mp3 file, and thus, it is not reasonable to judge that the facts charged in this case were modified to the extent of violation of the Copyright Act.

2. Whether a complaint is lawful

A. Summary of the Defendants’ assertion

A complaint against the crime of this case, which is subject to victim's complaint, is null and void since it was filed by a person who is not the person having the right to file a complaint. In other words, the complaint of this case is filed by a person who is not the person having the right to file a complaint, and the complaint of this case is null and void since the principal offender of the crime of this case had access to the sound marine server and downloaded mp3 files stored in the other names and stored them on his own computer, and the act of allowing multiple other members to receive and use the file again constitutes "transmission" under the Copyright Act, and cannot be deemed as reproduction and distribution. The complaint of this case is filed by a person who is not the person having the right to file a complaint of this case.

B. Determination

However, the issue of whether the above act of the principal offender constitutes a "transmission" or "reproduction" or "distribution" under the Copyright Act is related to the substantial judgment of the guilty or not guilty of the crime of this case, and not to be determined as a valid requirement of the complaint, and according to each of the records of the written statement prepared by the prosecutor with respect to the non-indicted 6 (in the investigation record 26 pages), the victims of this case are acknowledged to have filed a criminal complaint against the defendants around January 21, 2001 due to the defendants' aiding and abetting act of violating the Copyright Act as the principal offender's neighboring rights, i.e., the neighboring rights to their own sound records, on the ground that the right to reproduce and distribute them was infringed. Accordingly, the victims of this case shall be deemed to have legitimate right to file a criminal complaint against the defendants. Accordingly, this part of the defendants' assertion is without merit.

IV. The operating method of the “Surri Sea” system

1. An overall explanation of the P2P method program;

In full view of the Defendants’ statements at the lower court and the trial court, Nonindicted 7 and Nonindicted 8’s respective legal statements of the witness at the lower court, each protocol of examination of the Defendants’ suspect preparation of the prosecutor’s protocol, and each protocol of investigation report (Internet search data), the following facts are recognized.

(1) In general, the Internet is composed of a cleaner and a server providing information. The existing network method means that the Internet user access to the Central server and receives various information stored in the server from the server. While the P2P method means that the Internet user can directly share information, such as files, data, etc. stored in his/her own computer, by allowing Internet users to hold the role of the existing Central server, so that each computer of the users can exchange and receive information directly among the users (individual, pe-peer) without going through the Central server (individual, pe-peer).

(2) However, in the existing network method, the role of two computers exchanging information is clear, and if illegal data transmission occurs between them, there was no difficulty in pursuing direct responsibility to the manager of the central server, who takes the lead of tort against copyright infringement at all times. However, in the P2P system, the role of the server or clor is not particularly determined in the role of the server or clor between two or more computers exchanging information and the two or more computers managing one’s own sorce, and as a computer (i.e., a specific server) does not lead the delivery or delivery of data between each other, it is not easy to grasp the responsibility of the illegal act or its location because it is not easy to grasp the responsibility of the illegal act because the computer (i.e., a specific server) does not lead the data transmission including the file exchange. In addition, in combination with the electronic compressed technology of mp3, musical works such as CDs were converted into a large amount of mp3 file and distributed widely on the Internet, and eventually, it is difficult for the P2P company to exchange and develop the digital copyright (including digital copyright).

(3) Meanwhile, P2P method is largely divided into: (a) the connection method according to the connection method; (b) the interference method between central servers to facilitate the mutual contact of individual users on the Internet; and (c) the connection method between users with similar performance computers (i.e., the central server) and the user’s own file exchange, etc. without going through a brokerage intermediary (i.e., the central server). In the case of electronic, the central server does not have one music file, such as mp3, but the central server has a function to search the files on each of its own computers; (c) the central server does not intervene in the process of providing the data about the files desired by its members; (d) the central server’s personal data is not connected to the user’s computer and the user’s own data to receive the data directly from the central server’s own computer, and (e) the central server’s own data are not connected with the user’s computer that has a similar performance computer; and (e) the central server’s own data are not connected to the user’s own computer and its own data.

The representative of the former is "Napter" in the United States, and the latter's representative example is referred to as "Gnutanea" and "Freet", and the "Soriba" in this case is generally explained as belonging to the intermediate form of the regular liner and its telecom.

2. Operating methods of the sound sea system;

In full view of the above evidence and investigation report (the program and the order of mp3 download course), evidence list (the investigation record No. 635 pages), each access screen to Nonindicted 3, 1, 4, 5, and 2, and the screen No. 1 to 4 of the Sound Sea 1.1 Betaber, the following facts are recognized:

(a) Development and distribution of sound and sea programs;

(1) The Defendants, as a pro-friendly system, developed music-related programs among those with a large interest in the development of a lifelong program. From around 1998, the Defendants developed “SAP” and “SAP”, a program that enables mp3 files on the Internet for the first time, and supply them to the company called “Mano”.

(2) However, in around 199, the Defendants, which came to contact with the scopic machine of “scheduled liner”, which is a music file sharing program developed in the United States, returned to the Republic of Korea thereafter, were able to develop a program by which Internet users can exchange and receive information on users after they returned to the server without dependent on the central server, unlike the P2P method used by the “scheduled liner”. From March 2000, the Defendants started the development of the program and completed the development of the program on May 200, which is 2 months00.

(3) At the same time, the Defendants established three servers in the building of the Korea Internet Data Center located in Gangnam-gu Seoul, Gangnam-gu, Seoul, 261-1, and set up a web site “www.soriba.com” on the Internet for the purpose of providing mp3 files sharing services on the Internet. The Internet users provided mp3 file sharing programs at the above site with mp3 file sharing programs free of charge so that the Internet users can install the mp3 file sharing program on their own computers.

(b) Details of sound sea services;

(1)The sound sea programme will provide music sharing and search services that enable Internet users who have joined as members through the P2P method to download mp3 files with each other or to share mp3 files they hold with other users.

(2) A sound sea system has a central server, such as a "regular liner", but the central server only has a user ID (ID), a plaque, a e-mail address, gender and age of a member, user's Internet connection speed, user's final IP address, etc., and does not keep a mp3 file list as well as a mp3 file list or information thereon.

(c) Method of using sound sea services;

(1) The user first connects the web site (www.soriba.com) of the sound sea on the Internet or the web site providing the download service (www) of the Sheba and the Sheba (free) to the web site providing the download service and installs the “Seuri Sea Program” on his own computer with free coverage.

(2) At this time, a user shall enter his ID and password into a sound sea service and register it as a member of a sound sea service, and then designate a “share” (as a “C” set forth on the ordinary base page) which a user of another sound sea may access his own computer and download a mp3 file on his own computer, on its own computer hard disc. At the same time, he also designates a “Daropool” in which he may store a mp3 file received from another user. At the same time, at the time of the establishment of a sound sea program, he also designates a “Maropool” in which he may store a mp3 file received from another user. At the same time, at the time of the installation of the sound sea program, the designation of the above co-owned is basically required only at the stage of installation of the sound sea program, and even if it is not established in the subsequent process of use, it seems that there is no hindrance to the use of the sea service, and there seems to be a considerable number of users in the subsequent process of use without establishing it).

(3) The user’s completion of the establishment of a sound sea program and implementation thereof automatically connects the sound sea server. In this context, the user’s sound sea program automatically transmits connected information, such as the user’s IP address, to the center of the sea server, and the server automatically transmits connected information, such as the user’s IP address, etc., which the user had access to the computer, to the user after ascertaining the user’s ID and failure. In other words, the server provides 5,000 other users who had access at the time of the user’s access (the small sea system is basically limited to the search scope of “5,00 other users already connected at the time of the user’s access,” among many users who have access to the central server, to the extent that they can be searched, only form one group, and then automatically transmits the user the IP address of 5,000 computer to the user.)

(4) As above, a sound sea center server shall store the IP addresses received from the users along with the ID, studs, etc., which they entered at the time of their membership registration, and manage them as the user list. The users may access the sound sea server to other computers than the computer at the time of registration and use the sound sea service. If the user’s computer IP addresses are changed for such reasons, the sound sea server shall keep only the information on the computer IP addresses at the time of the last access.

(5) If the user requests the search by inputting the title or number of music, etc. that he/she wants to search into the search box of a sound sea program installed on the computer, the sound sea program is individually transmitted the search language to each of 5,00 persons from among the concurrent connection through the IP addresses of other users transmitted by the central server (the transmission to the sound sea program of the computer in question where 5,00 persons are actually used) and the sound sea program of other users to whom the above search language has been transmitted is automatically searched by searching all mp three files stored in the nbbbbbbbs of the computer in which the program is installed, and if it is found that the file conforms with the requested search terms, the information of the relevant file will be transmitted to the requesting person’s computer.

(6) The sound sea program of the requester shows the list by reconcing the response file information and showing the list as a result of the search. The above list is marked by singing, a number of files, a file name, a file file name, an user, an ID, a quality, a singing time, a response time, etc. using the function of “Automatic display,” and the requester may see that the list is expressed in the order of the search results in a manner that he/she wants, such as speed, size, and sound. The time required for receiving the list as a result of the search upon the request for the search is about two and three seconds.

(7) If the requester selects, from the list as a result of the search (i.e., using the above automatic display function, the users select mp3 files which are the most sound in which the speed of the download is fast) and characters or takes over “inwards,” the requester’s computer may be directly connected with the computer of the provider in which the file is kept (it is possible to connect because the provider’s IP address is already known by the provider’s computer sent by the sound sea server), and a reproduction of the relevant file may be transmitted from the provider’s co-ownership and sent to the applicant’s multiple copies automatically downloaded and stored. The requester may simultaneously select several files and simultaneously download the file, and may see the file in advance by real-time implementation of the file while receiving the download.

(8) Meanwhile, in the process of searching and downloading mp3 files using the sound sea program, the user does not pass through the center server of the sound sea. Moreover, as seen earlier, the center server of the sound sea does not keep separate list of mp3 files and only keep connected information, such as IMOs and sp3 files. If individual users have access to the server, they are sent to the user only after checking only the conformity of iD, etc., and then transmitting 5,000 computer IP addresses to the user. As such, the Defendants cannot know as a matter of course the list or contents of mp3 files stored in the joint mp3 files of individual users’ computers connected to the sound sea server, and as such, each of the users’ exchanges and files is searched unless they are checked by directly accessing the files as a general member who is not the operator of the sound sea server.

Ⅴ Whether a sound sea service user, including Nonindicted 1, violates the Copyright Act

1. Legal status, etc. of the victims;

A. Legal status of the victims of the instant case

Among the victims of this case, the victims of this case: (a) Man Entertainment is a producer of music records [Article 2 subparag. 7 of the Copyright Act (amended by Act No. 6134 of Jan. 12, 200) that first fixed the sound of each music recorded in the attached Form No. 1999 of Jan. 12, 200] who is subject to the protection of neighboring rights pursuant to the Copyright Act (Article 61 of the same Act) and has the right to reproduce and distribute the sound of this case (Article 67 of the same Act) by receiving the protection of neighboring rights pursuant to the Copyright Act (Article 61 of the same Act) and the sound of this case (Article 67 of the same Act).

(b) basic facts;

Each protocol of statement prepared by the prosecutor with respect to Nonindicted 2, 5, and 3 of Nonindicted 2, 5, and 3 of the trial witness in the court room, and each protocol of statement prepared by the prosecutor with respect to Nonindicted 1, 4, 5, 2, and 3 (as the Defendants were examined in the form of the protocol of statement without the prosecutor's notification of the right to refuse to make statements to the person who is the principal offender, the above protocol of statement is inadmissible. Thus, in order for the principal offender to be established, each of the above protocol of statement is required to act as the principal offender. However, there are cases where the principal offender and the principal offender should not be punished together, but only the principal offender is punished as a mere witness, rather than the principal offender's identity, and it is not necessary to notify the principal offender of the right to refuse to make statements. Accordingly, according to the above statement made by the Defendants, each statement of Nonindicted 2, and 5 written statement, investigation report (see, e.g., investigation records, investigation records, investigation records, data on the Internet page 1, 4.

(1) 이 사건 피해자들 중 ① 피해자 (주) 우퍼엔터테인먼트에서 제작하여 2000. 4. 4.경 출시한 가수 ‘클론’의 4집 음반에는 “1. 초련, 2. 바로너, 3. 신세계, 4. 거짓말, 5. 슛바리, 6. 필요악, 7. 미안해, 8. Now Concert, 9. 꽈리, 10. 변해버린 너” 등의 곡이, ② 피해자 (주) 동아뮤직에서 제작하여 1999. 9. 9.경 출시한 가수 ‘박완규’의 1집 음반에는 “1. Inferno, 2. 천년의 사항, 3. 약속, 4. Till to the rainbow, 5. 너의 눈물을 내가 볼 수 있도록, 6. 새로운 모습으로, 7. 진심, 8. 남겨진 날들, 9. 자유, 10. Angel, 11. One more try, 12. 태양의 꿈” 등의 곡이, ③ 피해자 (주) 대영에이앤브이에서 제작하여 2000. 7. 26.경 출시한 가수 ‘박지윤’의 4집 음반에는 “1. Intro, 2. 달빛의 노래, 3. 성인식, 4. 내가 원하는 남자, 5. 환상, 6. 연극, 7. 꿀, 8. 그댈 원했지만, 9. 귀향, 10. 사랑이 시작되기 전에, 11. 떠나는 이유, 12. 그대 그리고 사랑, 13. 달빛의 노래(REMIX)” 등의 곡이, ④ 피해자 (주) 신촌인터내셔널에서 제작하여 2000. 1. 5.경 출시한 가수 ‘박효신’의 1집 음반에는 “1. 해줄 수 없는 일, 2. 바보, 3. 애써, 4. Love is blind, 5. 스토킹, 6. 피아니스트, 7. 하늘은 왜 내게, 8. 링이, 9. 피터팬, 10. Inside Love, 11. Outro” 등의 곡이 각 수록되어 있다.

(2) Around July 200, Nonindicted Party 1 received a sound program on the Internet; (3) was installed on one’s own computer; and (4) became a member of the IMO, i.e., “bagi19”; and (4) was connected to a sound server by using the said program; (5) Nonindicted Party 1 stored three files of the same mp three files as recorded on the above 4-line music records (see, e.g., e., 1185 pages); (1) Nonindicted Party 4 (see, e.g., 1200 pages), Nonindicted Party 2 (see, e., e., e., e., e., e., e., e., e., e., e., e., e., e., e., 1208) and 123m of the two music records.”

(3) In addition, Nonindicted 1, 4, 5, 2, and 3 (hereinafter collectively referred to as “Nonindicted 1, etc.”), both Nonindicted 1, 4, 5, 2, and 3 (in combination with five persons, hereinafter referred to as “Nonindicted 1, etc.”) had access to the sound sea server by implementing the mp3 files received as above on August 4, 201 when they were stored in their co-owned busers on their own computers.

(4) At the time Nonindicted 1 et al. received each mp3 file downloads as above, there is no prior consent from the victims of the instant case or consent to downloading a mp3 file later.

(5) On the other hand, each mp3 file which Nonindicted Party 1 et al. received downloaded does not receive a mp3 file of one mp3 files of one mp3 files of one mp3 files of one mp3 files of one mp3 files of one mp3 files recorded in each mp3 file, including a rhnlon, in a condition that they are attached with serial numbers in front of each mpire, and they are downloaded with each mp3 files of one mp3 files of one mp3 files as recorded in each mbps (and all mp3 files received by Nonindicted Party 1 et al. are the same as “128 kbps”).

2. The source of mp3 files received by Nonindicted 1, etc. from the download

A. Summary of the Defendants’ assertion

mp3 files distributed on the Internet are not only produced on the basis of sound records or CD produced by music producers, but also produced on the basis of music records or CD produced on the Internet. It can be concluded that the principal offender of the instant crime infringes on the rights of the victims under the Copyright Act, since there is no evidence to acknowledge that each of the m3 files that Nonindicted Party 1, etc., the principal offender of the instant crime, had access to the sound sea server using the sound sea program and stored on the sound sea server, and then had access to the sound sea server by the victims of the instant case, and then had access to the sound, unclaimed boxes, etc., stored on their own computer, and then had been created on the basis of the sound records or CD produced by the victims, who are neighboring rights.

B. Determination

In light of the fact that the name of mp3 file downloaded by Nonindicted 1, etc. and the serial number thereof are almost identical to the two recorded in each sound record, the possibility that the above mp3 file was recorded in a drama performance site, etc. as claimed by the Defendants is rarely unlikely to be converted to mp3 file (in the event of recording in the same way as the above, it is common that only the mp3 file is recorded, and it goes against the empirical rule to make the recording of the mp3 file at the same time, and it is in fact against the fact that the recording of the mp3 file made by Nonindicted 1, etc. at the actual place of recording is identical to mp3 file "128". In light of the fact that there is no possibility that the above mp3 file was converted to mp3 file through a separate process, but there is no possibility that the above mp3 file could be converted to mp3 file directly purchased the mp3 file or its entire part after purchasing the mp3 file.

3. Whether the right of reproduction is infringed

A. Summary of the parties' assertion

The prosecutor asserts that Nonindicted 1 et al. received mp3 files listed in the separate sheet of crime that are stored in his own computer and stored on the victim's own computer, and the Defendants asserted that the exchange of mp3 files via the sound sea program is only an act incidental to the transmission, and thus, it should be viewed as the issue of the transmission right, and that there is no room for infringement of the right of reproduction.

B. The meaning of “duplicating”

(1) Article 2 Subparag. 14 of the former Copyright Act (amended by Act No. 6134, Jan. 12, 2000; hereinafter the same) provides that “the reproduction” refers to the reproduction of a tangible object by means of printing, photographing, copying, recording, video recording, or any other means, thereby limiting the concept of reproduction to “remaking a reproduction by means of printed materials, etc.” that can directly see the form of expression.

(2) However, due to the change of copyright surrounding environment, such as the appearance of a “digital work,” which is delivered through an information and communications network (Internet) and the development of digital technology, a new concept was requested to accept the change. Accordingly, the Copyright Act amended by Act No. 6134 on January 12, 200 and enforced on July 1, 200 (hereinafter “copyright”) provides that “duplicating” in Article 2 Subparag. 14 of the Copyright Act (hereinafter “copyright refers to the Copyright Act amended as above) means fixing a tangible object or remaking it into a tangible object by means of printing, photographing, copying, recording, recording, or other means, and further defines “fixed object” in the concept of reproduction. Accordingly, information such as a digital work transmitted or searched through an information and communications network re-making in an electronic recording medium (floftet, computer disc, etc.) and introducing a new concept “digital reproduction” that can include in the concept of reproduction.

C. Determination as to whether users of sound sea violate the right of reproduction

(1) In the case of Nonindicted 1, 2, and 3

(A) Of the principals of the instant crime, Nonindicted Party 1 and Nonindicted Party 2 from July 2000 to July 26, 2000; from the end of July 2000 to the end of August 4, 2001, Nonindicted Party 3 connected to a sound marine server using the sound sea program, and from the end of July 2001 to the end of August 4, 2001, searched the sound records of the number of victims and the mp three files made on the basis of CDs produced by each victims as indicated in the [Attachment Table 1, 4, and 5], and stored them in their own computers by downloading them. The fact that Nonindicted Party 3 did not obtain prior consent or ex post facto consent from the victims during the process of downloading a mp three file as above.

(B) Furthermore, unlike the former Copyright Act, the Copyright Act introduced the concept of reproduction by newly including the “fixed of sound records and their reproductions in tangible objects” in the concept of reproduction. According to this, in order for Internet users to provide files to others, the act of temporarily extracting sound sources from sound records or CDs and storing them in a medium in mp3 format, or storing them on the hard disks in one’s own computer by downloading mp3 files searched on the Internet, and then storing m3 files again in m3 chips or CDs so stored shall be deemed reproduction in all tangible objects.

If so, Nonindicted 1, 2, and 3 received a mp3 file from a music record producer without the consent of the music record producer and stored on his own computer, it would infringe the right of reproduction of the music record producer, which is an exclusive right to fix the sound on a tangible object.

(2) In the case of Nonindicted 4 and 5

(A) From the beginning of June 200 to August 4, 2001, Nonindicted 4 and Nonindicted 5, among the principals of the instant crime, searched the sound records of the number of victims, or the mp three files made based on CDs, as indicated in the [Attachment 2 and 3] from the beginning of June 2000 to the day of August 4, 2001, and collected them and stored them in their respective co-ownership boxes on their own computers.

(B) Under the former Copyright Act, which was enforced before July 1, 2000, prior to including “fixeds in tangible objects” in the concept of reproduction, it is evident that only “remaking in tangible objects” constitutes reproduction, and that the concept of reproduction is not defined in mind in the digital works delivered through an information and communications network. Therefore, under the former Copyright Act, the reproduction of copyrighted works in the form of a computer, such as a mp3 file sent or searched on the Internet, and stored in an electronic recording medium, such as a computer’s hard disc, does not constitute reproduction.

(C) Therefore, if the act of receiving mp3 files from the above non-indicted 4 and non-indicted 5 through the sound sea program was done on or before July 1, 2000, their acts do not constitute reproduction. Only when they were received on or after July 1, 200, they constitute reproduction. There is no evidence to acknowledge that Non-indicted 4 and non-indicted 5 received mp3 files downloaded after July 1, 200 in this case.

D. Whether reproduction constitutes private use of Article 27 of the Copyright Act

In a case where each act of Nonindicted 1, 2, and 3 infringes on the right of reproduction of a phonogram producer, it is problematic whether the reproduction constitutes a reproduction for private use as prescribed in Article 27 of the Copyright Act, and whether the use thereof is permitted as follows. On the other hand, if Nonindicted 4 and Nonindicted 5 downloaded a mp3 file after July 1, 200, it shall also infringe on the right of reproduction of the victim (owner) Do community, and even in this case, the decision below may be applied equally.

(1) Contents of Article 27 of the Copyright Act and requirements for establishment

Article 27 of the Copyright Act provides that a user may reproduce a work already made public within the limit of personal, family or the equivalent use without any profit-making purpose.

Therefore, in order for a user's act to constitute private use, it must meet two requirements, such as ① not for profit-making, ② to be used within the limit of family and the equivalent use, and again, to determine the "limited scope" of the above paragraph, the number of users should be small, and there should be a strong human combination between the number of users of the Korean War.

(2) Summary of the Defendants’ assertion

The defendants' purpose of "for-profit" under Article 27 of the Copyright Act is not the passive reduction of the cost of purchasing copyrighted works, but the purpose is to acquire direct profits through reproduction, such as selling copies to others or receiving reproduction request from others. The users of sound sea programs have downloaded mp3 files for personal purposes to understand music on the Internet, which is merely the reduction of the cost of purchasing sound records or CDs, and the reproduction of mp3 files can only be used for music sense as seen above, and therefore, it is argued to the effect that it constitutes private use under Article 27 of the Copyright Act.

(3) Determination

(A) Facts of recognition

After Non-Indicted 1, etc. connected to the central server of the sea, they collected music records produced by each victims indicated in the separate list of crimes, and mp3 files made based on CDs on their own computers, and stored them in their own jointly-owned boxes. On August 4, 2001, the fact that each mp3 files received from the above mp3 files were stored in the jointly-owned server and connected to the sound marine server by implementing the sound-owned program. As seen above, the fact that Non-Indicted 6’s statement by Nonindicted 3, 2, 5, 4, and 1 were included in the list of prosecutor’s statements, Non-Indicted 6’s written statements, Non-Indicted 3, 1, 4, 5, and 2, and each of the above mp files that were stored in each of the above mp3 files that were stored in the jointly-owned servers, Non-Indicted 6’s own rhetor’s own rhetor’s own rhetor’s own rhetor’s own s own r.

(B) Whether the reproduction by Nonindicted 1 et al. constitutes private use

As long as Nonindicted Party 1, etc. paid mp3 file purchase cost on the Internet, received mp3 files from other users via a sound sea program without compensation, rather than extracted mp3 file from purchased music records or CDs, and continued to connect the mp3 file and use the service, it is reasonable to view that Nonindicted Party 1, etc. intended to share mp3 files received by mp3 files with other users, other than personal purposes for music sense, in addition to other members of the mp3 file.

However, inasmuch as the aforementioned file sharing act is widely done between many and unspecified persons who have access to the sound sea servers on the Internet, in particular, between 5,000 simultaneous connection persons, it cannot be viewed as a reproduction for personal use or within the limit of personal use or family and the equivalent use. Therefore, without determining whether profit is for profit, Nonindicted 1, etc.’s mp3 file reproduction does not constitute reproduction for private use under Article 27 of the Copyright Act.

4. Whether the right to distribute has been infringed

A. Summary of the prosecutor's assertion

(1) On August 4, 2001, the prosecutor asserted that the infringement of the right to distribute was completed when Non-Indicted 1 et al. stored a mp3 file in his own co-owned franchise and connected to his sound marine server, which was automatically accessible to and copied by many and unspecified members. In fact, the prosecutor asserted that the infringement of the right to distribute was completed when other users received a mp3 file from another user using a method of re-produced the mp3 file on his own computer and then stored a mp3 file in his own co-owned franchise. As above, Non-Indicted 1 et al. stored a mp3 file in his own co-owned franchise.

(2) In addition, a sound sea user's act of storing a mp3 file on the co-owned platform and automatically accessing the sound sea server to receive a download from other users. The user's act of placing the mp3 file in a position that other users can download the mp3 file that other users want by searching the m3 file inside the computer, and upon the above request, the computer created a new reproduction of the m3 file, which is a reproduction of the m3 file, and automatically transmitted it to the requesting person, and the m3 file downloads through an electrical signal process that automatically transmits it to the requesting person. The m3 file is combined with a series of acts created by automatically storing the m3 file on the h3 file in the computer, thereby infringing the right of distribution of the m3 file (the m3 file is to be provided by the requesting person because the m3 file prior to being fixed is a hard disc already owned by the requesting person) and thus infringing on the right of distribution of the m3 file.

B. Determination as to whether the right to distribute by sound sea users is infringed

(1) The meaning of "distribution" and the introduction of "transmission right"

(A) According to Article 2 Subparag. 15 of the Copyright Act, the term “distribution” refers to transferring or lending the original or reproduction of a work to the general public with or without payment, which is identical to the concept of distribution under the former Copyright Act. Here, “transfer or lease”, as a matter of principle, is the concept accompanying the possession or transfer of a tangible object of a work, namely, the distribution of a work, in other words, the possession or transfer of an object containing a work, and it is difficult to include an intangible act of providing a digital work to the general public via telecommunication network.

(B) However, following the development of information and communications network and digital technology, when a new concept establishment is required in line with the change of the surrounding environment of copyright, such as the appearance of “digital works,” the Copyright Act was amended on January 12, 200, thereby introducing the concept of digital reproduction by adding “fixeds in tangible objects” to the existing concept of reproduction as seen earlier, and at the same time introducing the concept of “transmission right” distinct from the right of reproduction and distribution.

(C) According to Article 2 Subparag. 9-2 of the Copyright Act, the term “transmission” refers to the transmission of works by wireless or wire communication means so that the public may receive or use them at the time and place of individual choice. This is merely an act accompanied by transmission, that is, the right of reproduction, the right of distribution, or the right of broadcasting, as a right to communication through two-way information and communications networks, cannot be applied as it is to the distribution of works through computer communications. In other words, reproduction is merely an act accompanied by transmission, and distribution is not appropriate for transmission that does not involve the transfer of possession of tangible objects (as a result of transmission, the original of digital works remains in the computer of the sender after transmission, and the same reproduction remains in the computer of the receiver, and is stored at the same time after delivery, and in the case of transmission, it is different concept from the transmission that is characterized by the distribution of native information. Therefore, it is interpreted that the concept of “the right of transmission” is introduced as a new concept suitable for the distribution of works through computer communications.

(D) The transmission right under the Copyright Act has only the author (Article 18-2), and the neighboring rights, which are music record producers, are not granted the transmission right in addition to the reproduction and distribution right (Article 67).

(2) Whether the distribution right of Nonindicted 1 et al. was infringed

(A) The Korean Copyright Act recognizes the author’s property right as the so-called “the right to multiple rights”, and further adopts the method of “the right to multiple types of shares,” which is limited to the law, and adopts the method of “the right to interests of the copyright owner, etc.” as the right to interests. Therefore, it is reasonable to interpret that the copyright law cannot be protected under the Copyright Act, apart from the protection under other legal principles, unless the copyright law does not protect the copyright owner, etc. as the right to interests.

(B) However, Article 2 of the Copyright Act provides that each of the concepts of transmission (No. 9-2), reproduction (No. 14), distribution (No. 15) and distribution (No. 15) is clearly distinguished from each other. Thus, each of the above acts may not be objectively different acts or included in other acts. Furthermore, since the principle of strict interpretation is applied to criminal liability, an act falling under a concept sign cannot be interpreted as falling under another concept or included in other concepts.

(C) It is reasonable to view that individual users, such as Nonindicted 1, etc., committed in this case back to the instant case, and in the sound sea system, “an act of keeping others in a state in which they can receive mp3 files,” such as “an act of exchanging a mp3 file itself, cannot be deemed to entail possession or transfer of a tangible object,” and constitutes an act of distributing a digital format, and rather, an act of exchanging or providing a copyrighted work for use through computer communications, and thus, constitutes an act of exchanging or providing it for use.”

In addition, there is no evidence to acknowledge that the principal offender, including Nonindicted 1, violated the right to distribute victims. Thus, this part of the facts charged that the Defendants aiding and abetting the infringement of the right to distribute by Nonindicted 1, etc., the principal offender, constitutes a case where there is no proof of a crime without further examining the Defendants’ aiding and abetting.

5. Sub-committee

Only Nonindicted 1, 2, and 3 of Nonindicted 1, 2, and 5 of the principals listed in the annexed list of crimes in the annexed list of the facts charged that was revised in the trial of the party, infringed the right of reproduction of each victims listed in the same sequence. Since there is no evidence to acknowledge the infringement of the right of reproduction listed in 2, 3, and 4 and 5 and the infringement of the right of distribution of five principals, each of the above facts charged against the Defendants should be acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Ⅴ Whether the Defendants aids and abets the violation of the principal offender’s right of reproduction

The following is to examine whether the Defendants assisted the infringement of the right of reproduction of Nonindicted 1, 2, and 3 among the principals of the instant crime by providing sound sea services on the Internet (On the other hand, even if all of the principal principals of the instant case are deemed to constitute infringement of the right of reproduction and the right of distribution, the following judgments will be applied).

1. Whether the Defendants developed and distributed the sound sea system to provide for the infringement of the right of reproduction “from the beginning” - whether the sound sea system is so-called “illegal tool”

A. Summary of the parties' assertion

(1) Summary of the Prosecutor’s argument

The P2P service of the sound sea has each function of the set-up of the public platform, search and unloading of music files, and the transmission of files. As such, it is illegal technology developed for the purpose of unauthorized reproduction and distribution of music files from the beginning. Under the name of the non-title of the convenient sharing of Internet music, users form a community of copyright violations, which consists of the entire group of music files, and then form a program to share the role as a supplier of illegal music files. The reproduction and distribution of music files are carried out by the sound marine program. Accordingly, the Defendants developed a program for the purpose of illegal reproduction and distribution of music files between the Internet users and provided it as an Internet service. Thus, the Defendants are held liable as an aiding and abetting crime against the user's act of reproduction of the mp3 files.

(2) Details of the Defendants’ lawsuit and the gist of the assertion

According to the defendants' statement at the trial and the court below's statement, and each protocol of interrogation of the defendants as to the defendants, prior to the development of a sound sea program, the defendants are expected to have been complained of to the court on the grounds that the "welves" of the U.S. prior to the development of the sound sea program infringed on the rights of the music record company. However, at that time, since the acts of the liners are not determined as illegal and there were diverse opinions among experts, they started development without considering that the sound sea program was illegal, and as a result, using the direct liner posters in the U.S. directly and continuously in the U.S., they had the idea of being considerably useful programs for the Internet users. Furthermore, the music file sales may temporarily decrease due to the distribution of music files without permission, and on the other hand, it seems that the long-term sound delivery of the music record company might increase in its public relations effect on the music, and that it does not conform to the new operation of the ocean server and its new development method after the announcement of the development of the broadcast program.

(b) basic facts;

(1) The Defendants, who had a large interest in the development of a flat program, developed “surgic” and “SAP”, a program that provides mp3 files, etc. on the Internet for the first time in 1998, and developed “surgic” and “SAP”, a music file sharing program developed in the United States around 1999, and returned home to Korea on March 200 and started the development of a sound marine program on May 200 and completed the development of the sound marine program.

(2) 한편, 피고인들의 당심 및 원심 법정 진술, 원심 증인 공소외 9, 10 및 당심 증인 공소외 8의 각 법정 진술, 피고인들에 대한 검사 작성의 각 피의자신문조서, 수사보고(프로그램 및 mp3 다운로드과정 순서도)의 각 기재에 의하면, 소리바다에 등록하기 위한 초기 화면에는 “소리나라(‘소리나라’는 형식상 피고인 2 명의로 사업자등록을 마친 상호이다)는 소리바다 사용자들이 소유하고 있는 mp3 파일에 대해 어떠한 책임도 없음을 밝힙니다. 인터넷을 통해 유포되는 mp3 파일 중 많은 파일들이 합법적이기는 하나, 저작권자의 허락없이 불법적으로 배포되는 mp3 파일도 있습니다. 소리나라는 특정 mp3 파일의 합법성 여부에 대해 알 수 없음을 밝힙니다. 불법 mp3 파일을 복제 또는 배포하는 것은 국내 또는 국외 저작권법에 위배될 수 있으며, 이 저작권법을 준수하는 것은 사용자의 몫임을 알려 드립니다”라는 약관 형식의 경고문구가 게재되어 있고, 인터넷 사용자들이 소리바다 프로그램을 다운로드 받아 자신의 컴퓨터에 설치한 후 회원으로 등록하기 위해서는 반드시 위 경고문구를 읽고 이를 확인하였다는 의미에서 경고문구 아래에 있는 『약관에 동의하며 등록을 원합니다』라는 버튼을 눌러야 그 이후의 설치단계로 넘어가도록 설정되어 있는 사실, 음반제작자의 허락없이 만들어져 소리바다 시스템을 통하여 불법 교환되거나 다운로드 되는 mp3 파일의 수는 약 70% 정도이고, 나머지 30%는 합법적이거나 인터넷상에서 공개된 파일에 해당하는 사실(그 중에는 대중가수 “싸이”같이 자기의 음악파일을 인터넷상에서 아무런 제한없이 무료로 다운로드 받을 수 있도록 공개한 것들도 있고, 언더그라운드 가수나 신인가수들처럼 자신들의 노래를 널리 알리고 유포시킬 목적으로 자발적으로 인터넷상에 업로드시켜 놓은 경우도 있다), 소리바다 시스템이 채택한 P2P 운영방식은 앞서 본 바와 같이 기존의 네트워크 방식에 비해 중앙서버의 개입 없이 인터넷 사용자들 사이에 자유롭게 정보교환 등이 이루어질 수 있다는 장점 때문에 차세대의 인터넷 이용방식으로 각광을 받고 있으며, 현재에도 MSN 메신저 등 다양한 인터넷 통신 프로그램에서 합법적으로 이용되고 있는 사실을 인정할 수 있다.

C. Determination

(1) A certain person manufactures or sells goods or equipment to the general public. In the event that “material use” of such goods or equipment is in line with the infringement of another person’s copyright, or where such goods or equipment is manufactured for the aforementioned purpose, it is highly probable that such goods or equipment may be used as an important tool or only for the primary infringement by another person, regardless of manufacturer’s awareness of the infringement of copyright, the act of selling such tools or equipment itself constitutes an act of aiding and abetting another person’s copyright infringement (Article 127 of the Patent Act is deemed to have infringed the patent right or exclusive license where the act falling under any of the following subparagraphs is conducted as a business (Article 127 of the Patent Act).

Furthermore, as new science and technology called P2P services appeared in today's online services as well as P2P services are faced with the situation that the general public further increases the volume of copyright infringement, there is an argument that there is the essence of criminal aiding and abetting responsibility in the automated system providing services, such as exchange of mp3 files, in which illegal distribution can be ordinarily carried out, but it is not different from general cases, because it is a copyright infringement committed on the Internet.

(2) back to the instant case, the level of 70% of the mp3 files distributed on the Internet through the sound sea system developed by the Defendants is illegal. As such, the P2P services of the sound sea are actually used for unlawful reproduction of mp3 files between Internet users. However, the remainder of 30% through the sound sea system is actually being distributed by legitimate mp3 files. On the Internet, it is highly probable that services pursuant to P2P are to be used for current and non-infringed purposes. In full view of all the circumstances such as the development process of the sound sea program by the Defendants, the location and content of the warning as seen above, etc., it is difficult to conclude that the Defendants developed the sound sea program for the purpose of aiding and abetting the infringement of the right of reproduction from the beginning, or that the sound 2P service itself was produced for the purpose of use only for infringement of copyright, or that it is difficult to conclude that the use status of the sound service is the only core purpose for the use of the mp three electronic services.

In addition, there is no evidence to prove that the defendants developed a sound sea program for illegal purposes, and the core use or only use of the sound sea system is an infringement of the right of reproduction.

2. Whether a crime of aiding and abetting by omission is established;

A. Summary of the prosecutor's assertion

Defendants: (1) were aware at the time of development that the success of the "welves" developed in the United States and developed the "welves" program; (2) at the time of development, the Defendants had been aware of the fact that there was no lawsuit against the "welves" users in the United States; (3) at the time of development, they had been aware of the fact that the infringement of their copyright would occur frequently due to their development; (4) at the same time, they had access to the "Slves" program; and (4) at the same time, they had been connected to the "Slves server" to the "Slves server" and verified the operational status of the service and search of music files; and (4) sound sea service was actually being used without permission by individual users; and (3) at the time of registration of the "Slves" and "the registered members are more than 300,000 users who have access to it at the same time; and (5) there was no possibility of infringement of their copyright rights even if they did not have been provided an early correction of the copyright service.

(b) Requirements for establishing an aiding and abetting crime by omission.

(1) Article 18 of the Criminal Act provides that "When a person who has a duty to prevent the occurrence of danger, or who has caused the occurrence of danger by his own act, fails to prevent the occurrence of danger, punishment shall be imposed according to the result of the occurrence of the danger." In order to recognize the crime of omission, a person who has a legal duty to act to prevent the occurrence of the result of infringement of legally protected interests prohibited by the Criminal Act may easily prevent the occurrence of the result by performing the said duty, but in a case where a person fails to perform the said duty by permitting and neglecting the occurrence of the result, he shall be punished as a crime of omission in the same manner as the act of commission was committed (see Supreme Court Decisions 2003Do5207, Dec. 12, 2003; 2003Do5207, Mar. 14, 1997; 209Do39656, May 16, 196, etc.).

(2) On the other hand, the duty of commission as mentioned above is “legal duty” and thus, it does not include a simple moral or religious duty, but does not follow the law in so far as the duty of commission is a legal duty, and there is no law in so far as the law in so far as it is a legal duty, and the law in public law is not sound. Thus, it can be said that the legal duty of commission should only be the case where the duty of commission is expected under the law, legal act, preceding act, the principle of good faith, and social rules or sound reasoning (see Supreme Court Decision 95Do255

C. Whether the Defendants are obliged to act to prevent copyright infringement

(1) Whether a duty to act under statutes, legal acts, preceding acts, etc. arises

(A) First, even when examining the copyright law and other relevant laws at the time of the principal offender’s reproduction act, the Defendants cannot find the grounds for imposing legal obligations to prevent the infringement of the right of reproduction caused by the act of providing sound sea programs developed by them to many and unspecified persons free on the Internet (However, in Article 77 of the amended Copyright Act, which was amended by Act No. 6881 of May 27, 2003, which was enforced from July 1, 2003, which was amended by Act No. 6881 of July 1, 2003, provides detailed notification procedures between the copyright holder, online service provider, and Internet users in relation to the exemption from the liability of online service providers and the violation of their duty of care. Furthermore, insofar as there is no legal act between the Defendants and music record companies, the Defendants’ duty to act to prevent infringement of legal interests cannot be derived from this.

(B) Next, insofar as the sound sea program developed by the Defendants does not fall under the illegal tool developed solely for the purpose of using it in the infringement of the right of reproduction as seen earlier, the Defendants cannot be deemed to have the duty to act to prevent the infringement of the right of reproduction naturally against the Defendants solely on the ground that the Defendants distributed the above program free of charge to many and unspecified persons

(2) Whether there is a duty to act under the sound reasoning

(A) Obligation of online service providers, etc. to prevent infringement

1) In light of the fact that an online service provider, as an ordinary online service provider, is unable to know whether the music files, etc. distributed in a communication network, were actually infringed upon another person’s copyright until the list of music files, etc. was specifically notified by the copyright holder, etc., in principle, an online service provider, in principle, does not have a duty to act to conduct daily inspection and control of specific copyright infringement committed on his/her own system, and at least when he/she actually becomes aware of the details of the infringement upon the copyright holder’s specific notification from the copyright holder, an online service provider shall have a duty to act in preparation to prevent copyright infringement (see, e.g., Supreme Court Decision 200Da17418, Jun. 27, 2007; 2007Da17284, Jun. 27, 2007).

2) In addition, even if the degree of copyright infringement on mp3 files faces much more aggravated situation than the case of the existing online service provider, it is reasonable to view that the occurrence of the duty of commission under the cooking is the same as the case of the above online service provider. Therefore, in the case of this case, even though the victims specifically notify the Defendants of the infringement on the copyright of the members of the sound sea, if the Defendants do not take preventive measures such as blocking access to the relevant members or closing ID, they can enforce the responsibility of aiding and abetting the violation of the Copyright Act, and if the victims did not specify the infringement on the copyright and simply sent the notice that the victims would suspend or close the copyright infringement because the infringement on the mp3 file is punished by the copyright infringement through the sound sea service, it cannot be said that the aiding and abetting liability of the Defendants is established as a matter of course.

(B) Determination

1) The abstract perception of the Defendants’ infringement of the right of reproduction

As seen earlier, the Defendants knew at the time of the development of the sound sea program that the lawsuit was filed against the US liners for copyright infringement. Accordingly, the Defendants posted the warning phrase to the effect that there is possibility of infringement of copyright due to the distribution of illegal mp3 files on the initial screen for the installation of the program, and approximately 70% of the mp3 files shared through the de facto sound sea system is illegal files, and the Defendants have checked the operational state by directly accessing the sound sea server once a day. In light of the above, it is recognized that the Defendants were aware that the Defendants were aware that the mp3 files are shared or downloaded between users through the sound sea system.

However, the above recognition alone does not lead to the Defendants’ duty to act to prevent the infringement of the right of reproduction.

2) Whether the victims' specific notification of the infringement was made

1. First, the Defendants did not have any cooperation or notification from the victims of this case to the effect that they would make efforts to prevent copyright infringement in the court below’s decision.

② Meanwhile, according to the Defendants’ party and the court below’s legal statement, and Nonindicted 9’s legal statement, it is recognized that Nonindicted 9, a legislative director of the Korea Music Industry Association, to which the victims of this case are admitted as members, requested suspension or supplementation of services by warning Defendant 1 to the said Defendant that sound sea services violate the Copyright Act, around August 200 and around September 200, and around February 16, 2001.

However, Defendant 1 did not present a detailed list of the sound records or CDs produced by the victims due to the sound sea service at the time of the day, and only requested the suspension of the service itself on the ground that the sound sea service violated the indecent law. Therefore, the victims cannot be deemed to have specifically notified the Defendants of the infringement of the copyright. Furthermore, the victims are shared with non-infringe three files via the sound sea system, and it is difficult to ascertain whether any file among the total mp3 files infringed the copyright of the copyright holders, etc. before receiving the notification of the infringement list by the copyright holders, etc., the above request alone seems to be difficult to grasp specifically what kind of the mp3 files made by the victims among the mp three files exchanged or downloaded at sea.

③ Furthermore, the victims submitted to the investigative agency on Jan. 18, 2001, the victim's statement of opinion on Mar. 23, 2001, and each of the complainant's representatives on Aug. 6, 2001 are accompanied by each of the screen data for the search results that the victims searched through sound and sea services. On Mar. 13, 201 and Apr. 10, 2001, each of the detailed records statement was prepared and directly submitted to the investigative agency. However, all of the above search data and records statement are merely submitted to the investigative agency to prove their copyright infringement contents asserted that the victims suffered damage, and they cannot be deemed that the victims directly notified the defendants of the details of the specific list of infringement of copyrighted works with neighboring rights.

④ In addition, there is no other evidence to prove that the victims notified the Defendants of the specific list of copyright infringement (the highest report filed in the 826 pages of investigation records is not sent in the name of the Korea Music Industry Association in which the victims joined as members, and even if that content, the Defendants’ request for the suspension of the above services, i.e., the request for suspension, because the victims’ request for the overall music industry and the producers’ intellectual property rights have been seriously threatened due to the mp3 joint service of sound sea operated by the Defendants, and there is no specific list of infringement).

(C) Sub-decisions

Therefore, inasmuch as the Defendants were unable to receive specific notification from the victims of the infringement and did not know the details of the infringement, the Defendants did not have the legal duty to act in order to prevent the victims from infringing the right of reproduction on the copyrighted work having neighboring rights, and there is no other evidence to acknowledge this differently, the Defendants cannot be deemed to have committed aiding and abetting by omission. Ultimately, the Defendants should be acquitted under the latter part of Article 325 of the Criminal Procedure Act even the facts charged in this part where the Defendants aiding and abetting the infringement on the right of reproduction of the principals.

VII. Conclusion

Therefore, the judgment of the court below is reversed ex officio pursuant to Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows.

The summary of the facts charged of this case revised in the trial court is the same as that of “II.1,” and the above “Ⅳ., V., and VI..,” in detail, the above facts charged constitute a case where there is no proof of crime, and thus, the Defendants are acquitted pursuant to the latter part of Article 325 of the Criminal Procedure Act.

Judge Park Hong-woo (Presiding Judge)