[1] In a case where the issue was whether Company A infringed upon Company B’s computer program copyright, the case affirming the judgment below which held that Company A infringed upon Company B’s right to open a computer program by producing and selling a significant portion of the computer program using the secondary program, which revised Company B’s computer program without permission

[2] The case where the claim infringement by a third party constitutes a tort and the standard for determining the illegality of the claim infringement

[1] Article 31 (refer to Article 123 of the current Copyright Act) and Article 32 (refer to Article 125 of the current Copyright Act) of the former Computer Programs Protection Act (repealed by Article 2 of the Addenda to the Copyright Act, Act No. 9625 of April 22, 2009) / [2] Article 750 of the Civil Act

[2] Supreme Court Decision 2000Da32437 decided Mar. 14, 2003 (Gong2003Sang, 965) Supreme Court Decision 2004Da55230 decided Sep. 8, 2006 (Gong2006Ha, 1652)

Crocom Co., Ltd. (Law Firm Squa et al., Counsel for the defendant-appellant)

Es. Social Doz Has. Has. Has. Has. Doz. (Attorneys Son Ji-yol et al., Counsel for the plaintiff-appellant)

Cryert Co., Ltd. (Bae, Kim & Lee LLC et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na113835, 113842 decided May 27, 2009

All appeals are dismissed. The costs of appeal are assessed against each party.

The grounds of appeal are examined (to the extent of supplement in case of any supplement submitted after the expiration of the period).

1. Judgment on the Defendant’s grounds of appeal

A. On the first and second grounds for appeal

(1) The lower court determined as follows.

The new online system of Korea-U.S. Bank (hereinafter referred to as the "Korea-U.S. Bank") is composed of 2 U.S. computer files using the aforementioned program no longer than the 20th anniversary of the actual use permit agreement of the Plaintiff 1, which is the program copyright owner at the time of the judgment, or the 3th anniversary of the use permit of ELD (hereinafter referred to as “Plaintiff FNS”). According to the reasoning of the judgment below, the Defendant is deemed to use the computer program no longer than the 4th anniversary of the Seoul-U.S. Report No. 2, which is a new program no longer than the 4th anniversary of the production and use permit agreement of the Plaintiff 2, and the new program no longer than the 4th anniversary of the production and use permit agreement of the Plaintiff 2, the Defendant is deemed to use the existing online program no less than the COB code of the Korea-U.S. Report No. 2, which is the basis of the appraisal system no less than the Seoul-U.S. Report No. 3.

(2) In light of the records, the above judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the infringement of the right to open works.

B. On the third ground for appeal

In light of the records, since the part of the infringement of the right to open a work against the concessionaire cannot be separated by specifying the part of the infringement of the right to open a work against the concessionaire, the decision of the court below which received the claim for the prohibition of distribution against the plaintiff FNS's whole is just, and there is no error of law such as misunderstanding of legal principles as to the scope of the right to request the suspension of infringement as

C. On the fourth ground for appeal

(1) In light of the records, even if Plaintiff FNS granted Plaintiff CCcom (hereinafter “Plaintiff CCcom”) the exclusive right to use the exclusive right to use the exclusive right to use the Plaintiff’s 2-use license agreement at the time of original adjudication, the exercise of the right to use the exclusive right to the Plaintiff CBS is not restricted in relation to the third party. Therefore, the Defendant’s infringement of the Defendant’s right to open the exclusive right to use the exclusive right to use the exclusive right to use the 2-use license cannot be said to have caused damage to Plaintiff F

On a different premise, we cannot accept the allegation in the grounds of appeal that there was no loss to Plaintiff FNS.

(2) The lower court, on the basis of Article 32(3) and (4) of the former Computer Programs Protection Act (repealed by Act No. 9625, Apr. 22, 2009), deemed that it is difficult to calculate the amount of damages of Plaintiff FNS on the basis of the profit gained by the Defendant from the act of infringement or the amount equivalent to the amount that the Defendant would normally gain by exercising his/her right, on the basis of the fact that it is difficult to calculate the amount of damages of Plaintiff FNS on the basis of the following facts revealed by the result of examination of evidence and the purport of the entire pleadings pursuant to Article 32(5) of the same Act, comprehensively considered the facts revealed by the result of examination of evidence and the purport

In light of the records, the above judgment of the court below is just, and there is no error of law as to the calculation of damages as alleged in the grounds of appeal.

2. Judgment on Plaintiff FNS’s ground of appeal

In light of the records, as long as the Defendant only prepared a large portion of the Pro-Japanese and Pro-Japaneses using a new online system with which the Plaintiff opened BBs, it cannot be said that the Defendant reproduced and distributed BBs itself or could have a risk of reproduction or distribution, and thus, the lower court’s decision that rejected the Plaintiff’s request for prohibition of reproduction and distribution of the Plaintiff FNS’s Ducs in the same purport is justifiable, and there is no error in the misapprehension of legal principles as to the infringement of the right of reproduction, as alleged in the grounds of appeal.

3. Judgment on the grounds of appeal by Plaintiff Catrocom

A. On the first and second grounds for appeal

The lower court determined that, in light of the following: (a) Plaintiff CCcom’s merger and acquisition of the right of FNS.com against BBC; (b) Plaintiff FNS and FNS.com under the instant license agreement between Plaintiff FNS and FNS.com, although it is recognized that Plaintiff CFC granted the exclusive domestic right to use the Plaintiff’s program to BBC; (c) the FNS.com, upon the third party’s request under the said agreement, immediately inform Plaintiff FNS of the situation; and (d) whether to respond thereto should be determined by Plaintiff FNS; and (e) Plaintiff FNS agreed to respond or compromise upon Plaintiff FNS’s request, it cannot be said that Plaintiff CFS obtained the exclusive publication right of the program publication from Plaintiff FNS.

In light of the records, the above judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the establishment of exclusive program publication right.

In addition, the argument that the judgment of the court below erred in the misapprehension of legal principles as to the attribution of program copyright with respect to the conversion of the entire new online system or the new online system into C language is about the judgment of the court below, and it cannot affect the conclusion of the judgment. Therefore, the argument in the grounds of appeal on this issue cannot be accepted without further review.

B. On the third ground for appeal

(1) As to the claim for damages caused by infringement of business rights

In light of the records, the exclusive and exclusive business rights asserted by Plaintiff Crocom to hold in Korea with respect to BBS are merely the obligatory rights based on the instant authorization agreement with Plaintiff FNS and do not have a big effect. Thus, even if the above rights are violated by the Defendant, they do not constitute tort just because they are merely those facts alone.

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to infringement of business rights.

(2) As to the claim for damages caused by the third party’s infringement of claims

The principle of free competition in a transaction is based on a fair and sound competition within the scope permitted by legal order. Thus, if a third party knowingly infringes on creditors' interests by violating laws or regulations or by committing unlawful acts such as violating good morals or social order, it shall not be deemed that a tort is established. However, in this context, the illegality of infringement of claims shall be determined individually by taking into account the content of the claim infringed, the form of the infringement, the intent of the infringer, and the existence of the year in which the infringer committed such act. However, it shall be determined after careful consideration of the need to guarantee the freedom of transaction, the public interest including economic and social policy factors, and the balance of interests between the parties (see, e.g., Supreme Court Decisions 200Da32437, Mar. 14, 2003; 2004Da5230, Sept. 8, 2006).

Examining the reasoning of the judgment below in light of the above legal principles and the records, the court below is just in rejecting the claim for damages by Plaintiff CCCCC on the ground that it is difficult to readily conclude that the Defendant used Plaintiff CCCCCCC’s online system’s source code while knowing that it would impair Plaintiff FNS’s claim under the license agreement for the second use of this case. There is no error in the misapprehension of legal principles as to the infringement of a third party’s claim as alleged in the ground of appeal.

4. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)