[1] Whether the act of storing MP3 files by P20 and then stored them on a computer hard disc constitutes a reproduction under the former Copyright Act (affirmative)

[2] Whether an act of containing MP3 files in a computer's sharing platform to enable other P2P program users to download constitutes distribution under the former Copyright Act (negative)

[3] The elements for establishing aiding and abetting the infringement of the right of reproduction under the Copyright Act

[4] The case holding that the operation of a sound sea service and allowing its users to infringe the right of reproduction under the former Copyright Act constitutes an aiding and abetting crime

[1] Since there is no special limitation on the tangible objects under Article 2 of the Copyright Act, the hard disc of a computer is included in it, but the file cannot be deemed as a tangible object, which is electronically stored MPG-1 Audio Lyer-3 (MP3). Thus, the act of transmitting MP3 files converted from music CD by Peer-T-Peer (P2P) and electronically storing them in one’s own hard disc constitutes a fixed type of reproduction as defined in Article 2 subparag. 14 of the former Copyright Act (amended by Act No. 6134 of Jan. 12, 200), rather than a reproduction as defined in Article 2 subparag. 14 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006).

[2] The term "distribution" as referred to in Article 2 subparagraph 15 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) refers to the transfer of the original or reproduction of a work to the general public in the form of tangible objects. As such, the act of containing MP3 files stored in a computer hard disc in his own computer so that other P2P program users can easily download it does not constitute such act.

[3] The act of aiding and abetting the infringement of the right of reproduction protected under the Copyright Act is any direct and indirect act that facilitates the infringement of the right of reproduction of the principal offender. It includes not only aiding and abetting the infringement of the right of reproduction of the principal offender, but also the case where the future infringement of the right of reproduction is anticipated and easy prior to commencement of the infringement of the right of reproduction, and it is sufficient to have the principal offender's willful negligence in relation to the infringement of the right of reproduction, and there is no need to specifically recognize the date, time, place, object, etc. of the principal offender's infringement of the right

[4] The case holding that in a case where the act of sharing music files using a P2P program predicted that most of the music files are reproduced without legitimate permission, a sound marine program, P2P program, which is a P2P program for the sharing of music files, was widely developed and provided free of charge, and the program users’ access information was stored in the server and provided to other users, so that the users can easily download the music MP3 file and store it in their own computer sharing server, and where the sound marine service is continued to be provided with a warning that it would violate the Copyright Act and a request for suspension of service was made, the act of users who download the music three files constitutes reproduction as defined in Article 2 subparagraph 14 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006), and the act of a sound marine service operator constitutes aiding and abetting the reproduction right under the former Copyright Act.

[1] Article 2 subparag. 14 of the former Copyright Act (amended by Act No. 6134 of Jan. 12, 200), Article 2 subparag. 14 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) (see current Article 2 subparag. 22 of the former Copyright Act) / [2] Article 2 subparag. 15 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 200) (see current Article 2 subparag. 23 of the former Copyright Act) / [3] Article 2 subparag. 14 of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 200), Article 16, Article 54 (see current Article 57), Article 63 (22) of the former Copyright Act (amended by Act No. 8101 of Dec. 28, 2006) / [2] Article 167 subparag. 28 of the current Copyright Act

[3] Supreme Court Decision 76Do4133 delivered on September 28, 197 (Gong1977, 10342) Supreme Court Decision 2002Do995 Delivered on June 24, 2004 (Gong2004Ha, 1255) Supreme Court Decision 2003Do6056 Delivered on April 29, 2005 (Gong2005Ha, 887) / [4] Supreme Court Decision 2005Da11626 Delivered on January 25, 207 (Gong2007Sang, 333)

Defendant 1 and one other

Prosecutor

Law Firm Pacific et al.

Seoul Central District Court Decision 2003No4296 Decided January 12, 2005

The part of the lower judgment regarding aiding and abetting Nonindicted 1, 2, and 3’s infringement of the right of reproduction is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court. The prosecutor’s remaining appeals are dismissed.

The grounds of appeal are examined.

1. An act of infringing on or aiding and abetting the right of reproduction, etc. under the Copyright Act;

A. The meaning of reproduction and distribution under the Copyright Act

Article 2 of the Copyright Act (amended by Act No. 6134 of Jan. 12, 200; hereinafter “former Copyright Act”) provides that “the act of storing MP3 files converted from music CDs by Peer-T-Peer (P2P) and electronically on one’s own computer hard disc shall not be deemed to fall under “remaking them in tangible objects” as referred to in Article 2 subparag. 14 of the former Copyright Act (amended by Act No. 6134 of Jan. 12, 2000; hereinafter “former Copyright Act”), but it can not be said that the act of fixing MP3 files to tangible objects as referred to in Article 2 subparag. 14 of the Copyright Act, which are electronically stored in HEG-1, cannot be deemed to be a type of tangible objects. Furthermore, even if the act of distributing MP3 files in the form of a Pe-P, it can not be said that the act of distributing PE3 files can not be easily included in the type of copyrighted objects or printed objects.

B. Aiding infringement of the right of reproduction

Meanwhile, the act of aiding and abetting the infringement of the right of reproduction protected under the Copyright Act is any direct and indirect act that facilitates the infringement of the right of reproduction of the principal offender, as well as aiding and abetting the infringement of the right of reproduction of the principal offender, and also includes the case where the future infringement of the right of reproduction is anticipated and facilitating it before commencement of the infringement of the right of reproduction (see Supreme Court Decision 2002Do995, Jun. 24, 2004). It is sufficient that there is an incomplete intention for the infringement of the right of reproduction executed by the principal offender (see Supreme Court Decision 2003Do6056, Apr. 29, 2005), and there is no need to specifically recognize the date, place, object, etc. of the infringement of the right of reproduction of the principal offender, and further, there is no need to recognize who is the principal offender (see Supreme Court Decision 76Do4133, Sept. 28, 197).

2. Examining the evidence and the record duly adopted by the lower court. The Defendants predicted that the act of sharing music files through the use of P2P programs would result in the reproduction of most of the music files without permission by the users of the P2P through dispute cases in foreign countries related to the P2P program (the reasoning of the lower judgment reveals that 70% of the music files exchanged by the users of the instant case actually infringed the right of reproduction protected by the Copyright Act). On May 200, the Defendant developed and operated the instant sound sea server, which is a P2P program for the sharing of the MP3 file, and provided the said sound server free of charge via the Internet website. The Defendant’s request was made to keep the music file from 00 to 70 users of the said server and its age. The Defendant’s request was made only to provide the users with other music files with access information, such as IDs, e-mail addresses, Internet connection speed of the users, users’ final connection IP addresses, etc., and to provide the users’ best access information to the server.

The above actions by Nonindicted Party 1, etc. are merely storing and fixing music MP3 files which reproduced music records electronically on a tangible computer hard disc, which is a type of tangible objects, and they do not remaking music MP3 files as tangible objects, and therefore cannot be viewed as reproduction under Article 2 subparag. 14 of the former Copyright Act until June 30, 200, to which the former Copyright Act applies (Therefore, it is difficult to conclude that the above actions by Nonindicted Party 1, etc. were downloaded with MP3 files after July 1, 200, the Defendants cannot be a crime of aiding and abetting the right of reproduction infringement). After January 12, 2000, the reproduction under Article 2 subparag. 14 of the Copyright Act, which was amended by Act No. 6134 of Jan. 12, 200, cannot be seen as transferring or lending copies to the general public in the form of reproduction under Article 2 subparag. 14 of the same Act.

Ultimately, in full view of the aforementioned various circumstances, the Defendants distributed the instant sound sea program with dolusence at least, as seen above, and operated the sound sea server, thereby facilitating the infringement of the right of reproduction after July 1, 2000 by Nonindicted 1, 2, and 3.

Nevertheless, the judgment of the court below which acquitted the Defendants of aiding and abetting the infringement of the right of reproduction by Nonindicted 1, 2 and 3 was erroneous in the misunderstanding of legal principles as to the right of reproduction and aiding and abetting under the Copyright Act, which affected the conclusion of the judgment, and the prosecutor's ground of appeal pointing this out

3. Therefore, the part concerning aiding and abetting Nonindicted 1, 2, and 3’s act of reproduction infringement among the facts charged in the instant case is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remainder of the appeal by the prosecutor is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Yong-dam (Presiding Justice)