The case holding that an online service provider operating the Internet portal site cannot be deemed as a direct infringement of the copyright holder's right of reproduction, exhibition and public transmission right of the copyright holder when he/she provides a detailed image search service on the bulletin board posted by members.

Articles 2 subparag. 9-2 (see current Article 2 subparag. 10), 14 (see current Article 2 subparag. 22), 16 (see current Article 16), 18-2 (see current Article 18), and 19 (see current Article 19) of the former Copyright Act (wholly amended by Act No. 8101, Dec. 28, 2006); Article 2 subparag. 7, and Article 18 of the Copyright Act

Plaintiff

주식회사 프리챌 (소송대리인 변호사 정철승)

Seoul High Court Decision 2009Na21043 decided August 27, 2009

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. The judgment of the court below

Based on the facts indicated in its holding, the lower court determined that, without examining whether the user’s permission and infringement of the Plaintiff’s copyright on the image of this case (referring to a photograph or its reproduction owned by the Plaintiff, hereinafter the image or its electromagnetic wave day; hereinafter the same shall apply) by providing an image search service by the Defendant, which opened and operated the Defendant website as indicated in its holding, which is the Internet portal site, and without examining whether the Plaintiff’s members infringed on the Plaintiff’s copyright, the Defendant’s right to reproduction and public transmission of the image of this case (hereinafter the “right to reproduction”) by providing a detailed report by reducing and converting about 450 cm x 12 cm, and 12 cm, and hereinafter the above image of the same size to the bulletin board, etc. by directly providing it to many Internet users with the right to reproduction and public transmission of the image of this case (hereinafter “right to reproduction, etc.”).

2. Judgment of the Supreme Court

However, it is difficult to accept the judgment of the court below for the following reasons.

First, in order to hold the Defendant liable for tort by infringing the Defendant’s right of reproduction, etc. on the instant images posted on the bulletin board, such as one’s own “slock,” etc. using the Defendant’s electronic bulletin board function provided by the Defendant’s member, the Plaintiff must prove that the Defendant was using the original image or at least the size of the image of the detailed image, and stored the converted image in a tangible object, such as the server directly managed by the Defendant separately from the space assigned to its members. However, there is no direct evidence to acknowledge it even after examining the record.

However, according to the records, when the members display the image using the above bulletin board function, the defendant extracted the image of her Dozine, stored separately in the server directly managed and operated by the defendant, and when the users enter the search language in the search column of image search services by accessing the defendant website, they shall list and display the image of her Dozine, and if the users select a specific Dozine image again, they show the original image by reducing it into the size of the detailed image at the center of the screen. The above image shows its title, writing, file name, source, etc. under the above image, and in this context, the user selects the "slick" or "slick shock" function, each of which is, the detailed image of the image of Dozine image is automatically circulated in a certain time difference, and the source and Internet address (ULL), Internet address, Internet address, etc. of each image is indicated as the source and address of each web screen (hereinafter referred to as the "slock or the Internet screen image").

However, the method of displaying images by the so-called Internet link can be implemented in a way that allows users to move to a specific web page, other than by allowing them to display the images on the same server or other server to a specific size on the specific location of the web page that provides the link. In case of a latter method, it can be directly connected to the images, etc. of other web sites without changing the web site address indicated on the web server’s address. As such, the Internet link is merely representing the web page intended to connect on the Internet, or the individual copyrighted works stored on the web server, etc. stored on the web server, and it is insufficient to readily conclude that the Defendant stored the original image or reduced, and the converted detailed image in the form of a server that directly manages, etc.

Nevertheless, the court below held that the defendant is liable for damages caused by infringement of the right of reproduction, etc. on the premise that the defendant stored the original image or the converted detailed image of the image of this case in the tangible material, such as the server that he directly manages. The court below erred by misapprehending the facts in violation of the rules of evidence, thereby affecting the conclusion of the judgment.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)