Attached 1 List of Plaintiffs (Attorney Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

A. SDR Co., Ltd. (Law Firm C.S., Attorneys Min-ia et al., Counsel for the plaintiff-appellant)

October 16, 2014

Seoul Central District Court Decision 2013Gahap63771 (principal lawsuit), 2013Gahap5723 (Merger), 2013Gahap72478 (Merger), 2014Gahap7105 (Counterclaim) Decided February 21, 2014

1. On the basis of the appeal filed by the rest of the plaintiff (Counterclaim defendant) except for the plaintiff (Counterclaim defendant), the part concerning the counterclaim against the remainder of the plaintiff (Counterclaim defendant) such as the part concerning the principal lawsuit in the judgment of the first instance and the part concerning the counterclaim against the other plaintiff (Counterclaim defendant) shall be modified as follows.

(1) It is confirmed that there is no liability for damages related to the infringement of the copyright of the computer program in attached Form 3 by the remaining plaintiffs (Counterclaim defendants) against the defendant (Counterclaim plaintiff).

(2) All of the counterclaim claims filed by the Defendant (Counterclaim Plaintiff) against the remainder of the Plaintiff (Counterclaim Defendant) are dismissed.

2. All appeals filed by the Defendant (Counterclaim Defendant) against the Plaintiff (Counterclaim Defendant) are dismissed.

3. The total cost of the lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) through the principal lawsuit and the counterclaim.

Purport of claim

[Plaintiff-Counterclaim Defendant (Counterclaim Defendant; hereinafter “Plaintiff”) did not have any liability for damages arising from the infringement of the copyright of the computer program as stated in the [Attachment 3] against the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) (the Plaintiff seeks confirmation of the absence of liability for damages arising from the infringement of the copyright of the computer program as stated in the [Attachment 3]. However, the Defendant modified the Plaintiff’s assertion in the process of the lawsuit that he seeks employer liability due to the infringement of the copyright of the computer program, not the Plaintiff’s direct computer program copyright, but the Plaintiff’s assertion that the Defendant seeks employer liability due to the infringement of the copyright of the computer program, and the lawsuit was initiated on this premise. Accordingly, the damage liability for which the Plaintiffs seeking confirmation of absence is sought by the Plaintiffs is not the direct liability of the

[Counterclaim] The plaintiffs shall pay to the defendant 20% interest per annum from the day following the delivery of a copy of the counterclaim of this case to the day of complete payment. The plaintiffs shall pay to the defendant 20% interest per annum.

Purport of appeal

[Plaintiffs [excluding a partnership of the Plaintiff (hereinafter referred to as “the partnership of the Plaintiff”)] among the judgment of the first instance, the part concerning the Plaintiff (excluding the partnership of the Plaintiff, hereinafter referred to as “the Plaintiff”)’s main lawsuit shall be modified as follows, and the remaining part against the Plaintiffs regarding the counterclaim shall be revoked. It is confirmed that the remaining Plaintiffs’ damages liability related to the infringement of computer program copyright in attached Table 3 against the Defendant does not exist. The judgment dismissing the counterclaim against the rest of the Defendant corresponding to the revoked part.

[2] The judgment of the court of first instance is modified as follows. The plaintiffs' liability for damages related to the infringement of the copyright of the computer program in attached Form 3 against the defendant is confirmed to have not existed in excess of 5% per annum from February 12, 2014 to the judgment of the court of first instance from February 12, 2014 to the judgment of the court of first instance, and 20% per annum from the next day to the date of full payment. The plaintiffs shall pay to the defendant the amount corresponding to the amount stated in attached Form 2 in attached Form 2 and the amount equivalent to 5% per annum from February 12, 2014 to the judgment of the court of first instance from the next day to the date of full payment, and 20% per annum from the next day to the date of full payment.

1. The summary of the case and the facts premised on the case

A. Case summary

In this case, the plaintiffs and the joint plaintiff points in the first instance trial (hereinafter referred to as "the dispute resolution committee") seek confirmation that the employees, who are employees of the plaintiffs and pointsia, did not infringe the defendant's right of reproduction of the defendant's computer program and that there is no liability for damages based on employer's liability against the defendant as the main lawsuit, the defendant claims as a counterclaim that the defendant infringed the right of reproduction by installing the defendant's computer program and using it without the defendant's permission with respect to the management of affairs, and sought compensation and compensation for delay based on the employer's responsibility under Article 756 of the Civil Act.

The judgment of the court of first instance accepted both the claims of the plaintiff Dongdong and points A, and accepted part of the remaining plaintiffs' claims of the plaintiff's main claims and part of the counterclaim against the other plaintiffs. The remaining plaintiffs' remaining main claims of the plaintiff's main claims, the remainder of the defendant's remaining main claims against the plaintiffs, and the defendant's counterclaim against the plaintiff Dongdong and points A. Accordingly, the remaining plaintiffs and the defendant against whom they lost (However, the defendant's part is limited to the part), respectively, and filed an appeal (the points of the judgment of first instance and the part between the defendant are separated and finalized).

B. Facts that are commonly premised on the principal lawsuit and counterclaim

【Evidence A3, A5-1, 2, 4, and 17-1, A30, 31, 32, 33-2, B-1, 2, 3, 33-2, 3, 3, 5, 19, 21-1, 81, 81, 23, 24-1, and 83 of B-3 [Evidence 23, 24-1, 84-1, and 84 of the Plaintiff’s IP address and MAC address” (the Plaintiff’s evidence (the Plaintiff’s evidence 23, 24-1 and 83) was collected by the Defendant in violation of the Act on the Promotion of Information and Communications Network Utilization and Information Protection, etc., and thus, it is not admissible as evidence collected by the Plaintiffs or individual users without consent of the Plaintiffs’ 1, 3, 94, 94, 9, 94, 9, 94, 1, 2, and 198, 3, 3.

(i)The Party;

The defendant is a company with the purpose of software development, etc., and the plaintiffs are the employers of individual employees who have used computer program works in attached Form 3, which the defendant has copyright.

Doz. Computer Program Works of the Defendant

㈎ 소외인은 2003년 무렵 컴퓨터 사용자에게 화면캡쳐 기능을 제공하는 컴퓨터프로그램인 ‘오픈캡쳐’를 개발하여 저작권을 가지고 있었고, 오픈캡쳐 6.7 버전까지는 무료로 사용자에게 제공되었다.

㈏ 그 후 소외인은 오픈캡쳐에 관한 저작재산권을 ○○○○○○○에게 양도하였고, ○○○○○○○가 2012. 4. 1. 피고에게 오픈캡쳐의 저작재산권을 양도하였다. 피고는 2013. 1. 17. 피고를 저작자로 하여 한국저작권위원회에 오픈캡쳐 프로그램을 등록하였다.

㈐ 오픈캡쳐는 2012. 2. 5. 버전 6.7에서 버전 7.0으로 업데이트되었는데, 7.0 버전부터 비상업용·개인용으로 사용하는 경우에만 무료로 제공되고, 그 밖의 경우에는 기업용 라이선스를 구매한 때에만 사용할 수 있도록 유료로 변경되었다.

㈑ 오픈캡쳐는 2012. 8. 23. 버전 7.5로, 2013. 2. 15. 버전 8.0으로, 2013. 6. 27. 버전 8.1로, 2014. 1. 13. 버전 8.5로 업데이트되었다(이하, 오픈캡쳐의 7.0 버전부터 8.5 버전까지를 ‘오픈캡쳐 유료버전’이라 한다).

【The result of collecting IP address and MAC address information of the computer implementing the Paid Open Capture of Open Capture

The Paid Open Capture of Open Capture was installed and operated by the program user using the Open Capture to ask whether the program user consents to the Terms and Conditions of the License Agreement, including the content of collecting network information, etc., and then installing and using the Paid Open Capture of Open Capture, it is automatically transmitted to the Defendant’s server by the Defendant’s server. However, the Defendant’s number and number of copies of the Open Capture from the Defendant’s Internet address (IPDres and the distinctive address assigned to communicate each other at the computer network) and the MAC address (MAC address (MACres, and network equipment installed inside the network equipment, such as a computer, are 48 feet unique information, and the computer has a MA device for communication. As such, each computer has a unique address and one MA address, each of which can be identified through the MA address. The same shall apply to the number and number of copies collected from the Defendant’s Internet address from the MMA to the Plaintiffs on April 1, 2012).

2. Issues of the instant case

A. Whether the Plaintiffs’ employees installed and implemented the Paid Open Capture of Open Capture

B. Whether the Plaintiffs’ employees infringed the right of reproduction in the course of installing the Paid Open Capture of Open Capture on the hard disk of computer

C. Whether the Plaintiffs’ employees infringed the right of reproduction by means of temporary storage in the course of implementing a paid server of Open Capture

(1) Whether reproduction is made by means of temporary storage in the course of implementing the Paid Open Capture of Open Capture

Whether it falls under temporary reproduction in the course of the use of dics (whether it is exempted under the Copyright Act)

D. Whether the Plaintiffs’ liability for damages is established based on the Plaintiffs’ employer’s liability (whether the individual program user’s liability is established due to the infringement of copyright)

E. Whether the liability for damages based on the tort caused by the deceiving of the plaintiffs was established

3. The judgment of this Court

A. Whether the Plaintiffs’ employees installed and implemented the Paid Open Capture of Open Capture

【Defendant’s Claim】

The defendant asserts that the plaintiffs' employees had reproduced the paid server of Open Capture on company computers, and used it for business purposes.

【Counterclaim of Plaintiffs】

The plaintiffs asserted that the employees of the plaintiff Telecommunication Co., Ltd. (hereinafter referred to as "ABS") did not reproduce and use the paid server of Open Capture in the company's computer, and that even if the plaintiffs' employees had reproduced and used the paid server of Open Capture in the company's computer, it cannot be readily concluded that they used it for business purposes.

[Judgment]

(1) In full view of the overall purport of the arguments in evidence ( evidence Nos. 33, 34-1 to 8, 35-1 to 6, 36-1 and 2), the Paid Open Capture of Open Capture can be recognized as a computer program used to capture necessary parts, such as reports, proposals, presses, data, planning, pictures, pictures, videos, video images, etc., to be used in preparing promotional materials, or to edit closed images, etc.

According to the premise and the facts found above, the Defendant’s authorized IP addresses collected automatically through the Defendant’s implementation of the Paid Network of Open Capture are the same as the authorized IP addresses assigned to the Plaintiffs (including Plaintiff’s club; hereinafter the same shall apply) except for Plaintiff’s Telecommunication. The paid program of Open Capture may be used for personal purposes. However, the paid program of Open Capture may be used for personal purposes. In general, it is widely used in the process of reporting, proposals, presses, data, planning documents, promotional materials, etc. in the company, and the use of the paid program of Open Capture by individual employees is close to the Plaintiffs’ remaining business time and location other than Plaintiff’s Telecommunication, and is closely related to the process of performing all or part of the employees’ work.

In light of these circumstances, barring special circumstances, the employees of the Plaintiffs, other than the Plaintiff Telecommunication Information, installed a paid server of Open Capture on the company’s office-based computer, and can be ratified as using it for business purposes.

On the other hand, the defendant asserts that the employees of the two-way information and communication installed the Paid Open Capture on the hard disks of the company's computer and used it.

However, according to evidence (A30, 31, 32, 33), Plaintiff Telecommunication is used directly by the Korea Internet and Security Agency from May 31, 2004 for the use of the IP address. From May 31, 2004, Plaintiff Telecommunication’s authorized IP address (IP address 1 omitted), (IP address 2 omitted), (IP address 3 omitted), (IP address 4 omitted), (IP address 5 omitted)-(IP address 5 omitted)- (IP address 6 omitted) is recognized.

Therefore, in light of the above facts of recognition, it is insufficient to conclude that evidence (B 21-42, B 23, and B 24-43) alone is insufficient to conclude that the Defendant’s authorized IP address asserted to have been allocated to Plaintiff Telecommunication is allocated to Plaintiff Telecommunication, and there is no other evidence to acknowledge this otherwise. The above argument by the Defendant is reasonable within the above scope of recognition (other than the foregoing, even if an employee of Plaintiff Telecommunication installed the paid server of Open Capture on Plaintiff Telecommunication’s hard disc and used it, the above act by the employee cannot be deemed as infringing the Defendant’s right of reproduction as follows).

B. Whether the Plaintiffs’ employees infringed the right of reproduction in the course of installing the Paid Open Capture of Open Capture on the hard disk of computer

【Defendant’s Claim】

The Defendant asserts that reproduction in a normative sense protected under the Copyright Act should be distinguished from the act of storage of a simple computer disc in a technical sense, so only when it arrives at the time when the paid computer of Open Capture is practicable to allow it to be actually used, the reproduction under the Copyright Act is completed. The Defendant asserts that the reproduction of Open Capture is an act of infringing the Defendant’s right of reproduction, even though he consented to use only for non-business and personal use prior to the completion of the reproduction of the Paid Copyright of Open Capture of Open Capture, the user of the Open Capture of Open Capture was used for business in violation of such use permit, and the user of the Open Capture of Open Capture was used for business purposes.

【Counterclaim of Plaintiffs】

The Plaintiffs, regardless of the intent of individual employees, are reproduced by using a computer of individual employees according to the Defendant’s instructions, and only after the paid server of Open Capture was reproduced on the individual employee’s computer, the Plaintiff’s employees did not infringe the Defendant’s right of reproduction since it did not reproduce the paid server of Open Capture without the Defendant’s permission, but it was reproduced by obtaining the Defendant’s permission, the copyright holder, and thus, the Defendant’s right of reproduction was not infringed.

[Judgment]

(i) In full view of evidence (A15-1 to 7, A26-1 to 70, A27-1 to 24, and B 18-1 to 5), the following facts can be acknowledged:

㈎ 오픈캡쳐 6.7 버전이 설치된 상태에서 오픈캡쳐 6.7 버전을 실행하면 ‘새 버전으로 업데이트를 시작합니다. 확인’이라고 된 창이 나타나면서 확인 버튼을 누르는 것과 관계없이 오픈캡쳐 유료버전이 자동적으로 사용자 컴퓨터의 하드디스크의 임시 경로로 다운로드 되고, 그 후 확인 버튼을 누르면 업데이트가 진행되어 하드디스크에 프로그램이 설치되며, 업데이트가 이루어진 다음 사용허락계약서(별지5)가 포함된 라이선스 약관에 동의하는지를 묻는 창이 나오고, 사용자가 최종적으로 확인 버튼을 누르면 설치가 완료되면서 오픈캡쳐 유료버전을 컴퓨터에서 이용할 수 있는 상태가 된다.

㈏ 오픈캡쳐 유료버전의 라이선스 약관에 동의하는지를 묻는 창의 문구내용은 7.0 버전의 경우에 ‘약관동의 및 비상업용·개인용으로만 사용하겠습니다. 기업용 라이선스 구매하기’로 되어 있고, 7.5 버전과 8.0 버전에서 ‘약관동의 및 비업무용·개인용으로만 사용하겠습니다. 단, 라이선스 구매자는 본 내용과 무관합니다. 업무용 라이선스 구매하기’로, 8.1 버전과 8.5 버전에서 ‘약관동의 및 비업무용·개인용으로 비업무장소에서 사용하겠습니다. 단, 라이선스 구매자는 본 내용과 무관합니다. 업무용 라이선스 구매하기’로 변경되었다.

Article 16 of the Copyright Act, which provides that “authors shall have the right to reproduce the work,” Article 2 Subparag. 22 of the Copyright Act, provides that “duplicating” means fixing or remaking a tangible object temporarily or permanently by means of printing, photographing, copying, sound or visual recording, or other means, and in the case of buildings, it includes carrying out construction in accordance with the models or design plans for the construction thereof. As such, “duplicating” in the current Act refers to fixing or remaking a work on a tangible object temporarily or permanently to the extent sufficient to recognize its content and form or to understand its contents and form. As such, the term “duplicating” refers to the reproduction of tangible consultation by temporarily or permanently fixing or remaking the file of a computer program in a storage device, such as the hard disc, etc., constitutes reproduction as provided in the Copyright Act.

According to the aforementioned premise and the above facts, an individual user of a computer installed the Open Capture and operated the Open Capture 6.7 Open Capture 6.7 of the Open Capture, regardless of the user’s leakage of the confirmer’s computer, the Paid Open Capture ended on the hard disc, a tangible object, as a temporary channel of the user’s computer. If the confirmer is installed, the Paid Open Capture of the Open Capture ended on the hard disc installed, and then the license fee of the Open Capture ended. On the completion of the business, the user is able to use the Paid Computer when the user is finally able to use the Open Capture, and the installation of the Open Capture ended on the Paid Computer disc. Therefore, the installation of the Open Capture Cor be completed by the user’s installation of the Paid Computer.

However, in the course of the business of using the Open Capture after the user’s use of the Open Capture, it shall be deemed that a software license agreement has been made pursuant to a user’s license agreement including the Defendant’s license for the use of the Paid Capture of the Open Capture through a hold to ask the Defendant’s consent to the license agreement with the license terms and conditions. Moreover, even if an individual user’s use of the Open Capture exceeds the license terms and conditions under the user’s license agreement upon the completion of the reproduction, it cannot be deemed that the user’s use of the Open Capture constitutes a violation of the user’s license agreement, even if the user’s use of the said program exceeds the scope of the license terms and conditions under the user’s license agreement, including the license terms and conditions, after the reproduction has been completed, and then the user’s use of the Open Capture would not be deemed to have infringed upon the user’s right of reproduction of the Open Capture. Therefore, even if the user’s use of the said program exceeds the scope of the user’s license agreement upon the use of the said program.

Ultimately, the Defendant’s Paid Open Capture of Open Capture was reproduced on the hard disc, a storage device of an individual user’s computer, according to a license agreement concluded with the Defendant, and thus, cannot be deemed as infringing the Defendant’s right of reproduction of the Paid Open Capture of Open Capture. The Defendant’s above assertion is without merit.

C. Whether the Defendant’s employee infringed the Defendant’s right of reproduction by means of temporary storage in the course of implementing the Paid Open Capture of Open Capture

(1) Whether reproduction is made by means of temporary storage in the course of implementing the Paid Open Capture of Open Capture

【Defendant’s Claim】

The defendant asserts that the program was temporarily stored in a luminous (RAM, Random Alces, Memy) of an individual user’s computer when running the paid server of Open Capture from a computer, and that the employee of the plaintiffs paid the Open Capture was temporarily stored in the program to use the paid server of Open Capture for business purposes, and that the program was reproduced by fixing part of the paid server of Open Capture to tangible objects.

[Judgment]

㈎ 증거(갑26의 1에서 70)에 변론 전체의 취지를 종합하면, 사용자가 컴퓨터에서 오픈캡쳐 유료버전을 실행하면 오픈캡쳐 유료버전은 윈도우 그림판(mspaint.exe), avastl Antivirus(AvastUI.exe), 윈도우 탐색기(explorer.exe), 윈도우 메모장(notepad.exe) 등 다른 컴퓨터프로그램과 마찬가지로 사용자 컴퓨터의 저장장치인 램의 일정 공간에 일시적으로 저장되는 과정을 통하여(사용자 컴퓨터의 ‘Windows 작업관리자' 창을 열면 프로세스 항목에는 ‘opencapture.exe'로 표시된다) 실행되는 사실을 인정할 수 있다.

㈏ 저작권법에 정해진 복제라고 함은, 기존의 저작물에 의거하여 그 내용과 형식을 인식할 수 있거나 감지하기에 충분한 정도로 일시적 또는 영구적으로 유형물에 고정하거나 다시 만드는 것을 말하므로 컴퓨터에서 프로그램을 실행함에 있어 컴퓨터 내의 램에 프로그램이 일시적으로 저장되고 전원을 끄면 사라져버리는 경우에 이러한 형태의 저장도 물리적으로는 저작물인 프로그램을 유형적으로 고정하거나 다시 만드는 것에 틀림이 없으므로 일시적인 복제에 해당한다.

According to the above facts, if a user operates a program on a computer where the Defendant’s paid server of Open Capture is installed, the paid server of Open Capture of Open Capture is temporarily stored in the screen in the implementation process, and the computer program is temporarily fixed or re-produced in the screen, which is a storage device in the computer, and eventually, the paid server of Open Capture is fixed and temporarily reproduced in the screen, which is a tangible object, in the process of using the program in the implementation of the program. Furthermore, the paid server of Open Capture of Open Capture is temporarily reproduced in whole or in part during the process of storage in the screen for the implementation of the program, and the paid server of Open Capture of Open Capture of Open Capture is also recognized as creative as a copyrighted work.

Therefore, it is reasonable to view that individual users temporarily reproduced all or part of the paid server of Open Capture in a computer, by using it on the computer. The Defendant’s above assertion has merit.

Whether it falls under temporary reproduction in the course of the use of dics (whether it is exempted under the Copyright Act)

【Plaintiff’s argument】

The plaintiffs asserts that the plaintiffs' employees are entitled to temporary reproduction which is carried out for smooth and efficient information processing when using copyrighted works in a computer, even if their temporary reproduction is carried out in the screen, which is a storage device in the computer, in the course of implementing a paid server program of Open Capture from the computer, and that such temporary reproduction is exempted in accordance with the main sentence of Article 35-2 of the Copyright Act allowing temporary reproduction in the course of using copyrighted works.

[Dissenting of the Defendant]

The Defendant, in violation of the terms, conditions, and scope of the Defendant’s license to use the Open Capture for business purposes, and that constitutes “where the use of a copyrighted work infringes on copyright” under the proviso of Article 35-2 of the Copyright Act, and thus, the Plaintiffs’ employees claim that temporary storage of the Open Capture in the lamps during the process of implementing the Paid server of Open Capture from the computer constitutes a case of infringing on copyright.

[Judgment]

㈎ 저작권법은 35조의2 본문에서 컴퓨터에서 저작물을 이용하는 경우에는 원활하고 효율적인 정보처리를 위하여 필요하다고 인정되는 범위 안에서 그 저작물을 그 컴퓨터에 일시적으로 복제할 수 있다고 규정하고 있다. 컴퓨터에서 프로그램을 실행하면 하드디스크 등의 보조기억장치에 설치된 프로그램이 컴퓨터 내의 램에 일시적으로 저장되고, 중앙처리장치(CPU)가 먼저 캐시를 조사하고 없으면 램에 접근하여 램에서 읽은 자료를 캐시에 저장하여 연산이나 화면생성 등의 처리를 하는 과정을 통하여 프로그램이 실행된다. 그리고 이 과정에서 속도가 느린 저장장치에서 속도가 빠른 저장장치로 자료를 일시적으로 고정하여 처리 속도를 높이기 위하여 일시적 복제가 이루어지게 된다. 그러므로 저작재산권의 구체적 지분권에 해당하는 이용뿐만 아니라 일반적인 의미에서의 이용도 포함하는 주된 이용에 따라 컴퓨터에서 저작물을 이용하는 과정에서 일시적 복제가 부수적으로 이루어지더라도 컴퓨터 내의 프로그램을 실행하는 행위도 원활하고 효율적인 정보처리를 위하여 필요한 범위에 속한다고 보아야 하므로 이러한 일시적 복제는 저작권법 35조의2 본문에 따라 허용된다고 보아야 한다. 컴퓨터에서 프로그램의 실행과정에서 이루어지는 컴퓨터 내의 램에의 일시적 저장도 물리적으로 저작물인 프로그램을 유형적으로 고정하거나 다시 만드는 것에 해당하지만 램에서의 일시적 저장은 프로그램의 사용에 불가피하게 수반되어 따르는 것인데, 그와 같은 경우에도 복제권이 미친다고 해석하게 되면 원래 프로그램 저작권의 효력이 미치지 아니하는 프로그램의 사용행위까지 저작권자가 통제할 수 있는 부당한 결과를 초래하게 되고, 일시적 저장이라는 형태의 복제는 권리자의 이익을 침해하는 것이 비교적 적다고 보이므로 저작권법은 35조의2 를 신설하여 컴퓨터에서 저작물을 이용하는 경우에는 원활하고 효율적인 정보처리를 위하여 필요하다고 인정되는 범위 안에서 이를 허용한다는 취지를 분명하게 하였다고 해석된다.

In this case, if individual users run the paid server of Open Capture from a computer, the paid server of Open Capture temporarily stored in the computer. As such, temporarily storing the program on the screen is at a speed of processing, while the central processing device (CPU) is at a speed of reading the data from auxiliary memory equipment, such as HD disc, etc., so it is aimed at raising the processing speed by adjusting the speed difference between the two devices. Therefore, temporary reproduction during the implementation of the paid server of Open Capture of Open Capture constitutes a reproduction within the scope necessary for smooth and efficient information processing.

㈏ 그리고 저작권법 46조 1항 , 2항 은 ‘저작재산권자는 다른 사람에게 그 저작물의 이용을 허락할 수 있고, 그 이용허락을 받은 자는 허락받은 이용 방법 및 조건의 범위 안에서 그 저작물을 이용할 수 있다.’고 규정하고 있다. 여기서 ‘이용’이라고 함은, 저작권법의 규정에 따라 저작권자가 배타적으로 전유하고 있는 형태로 사용하는 저작재산권의 내용으로 되어 있는 행위에 해당하는 복제, 공연, 공중송신, 전시, 배포, 대여, 2차적저작물 작성 등 저작권의 지분권에 관한 행위를 말하고, 저작물이 화체된 매체를 매개로 저작물을 지각하는 행위 등 제3자에 대하여 저작권법에서 금지의 효력이 미치지 아니하는 형태로 저작물의 내용을 향수하는 행위를 가리키는 저작물의 ‘사용’과 구별된다(적어도 저작권법 46조 에 정해진 저작물의 이용허락에 관한 한 저작재산권의 지분권의 금지의 범위와 이용이라는 개념이 지시하는 바가 합치하는 것이 문언에서 분명하다). 그러므로 컴퓨터프로그램을 실행하는 등 저작권자의 허락이 없더라도 당연하게 허용되는 형태로 저작물을 사용하는 행위는 이 조항에서 말하는 ‘이용’에 해당하지 아니하며, ‘허락’이라고 함은 저작물의 이용을 구하는 자에 대하여 일정한 범위나 방법으로 저작물의 이용을 인정하는 저작권자의 의사표시를 말하고, 허락은 저작재산권의 양도와 달리 허락을 받은 자에게 저작물을 이용할 수 있는 채권적 지위를 인정하는 것이다. 그리고 이용방법은 이용형태, 이용부수나 횟수, 이용시간, 이용장소 등 세부적인 이용방법을 포함하고, 조건은 이용대금의 선불이나 우선이용권의 부여 등의 특약조항으로서 이러한 이용방법과 조건은 저작권자가 일방적으로 붙일 수 있는 것이므로 ‘이용’의 범위를 제한하는 것에 한정되고 허락을 받은 자에게 의무를 부담하게 하는 것을 포함하지 아니한다. 그러므로 컴퓨터프로그램 저작자가 작성하는 사용허락계약에 들어 있는 여러 가지 내용의 조항 중에는 일반적으로 저작권법 46조 2항 에 정해진 이용방법이나 조건에 해당하는 것과 해당하지 아니하는 것이 혼재되어 있어 계약으로 저작권제한규정이나 저작물의 소유자에게 당연하게 허용되는 저작물의 사용(저작물의 ‘이용’이 아님)을 사실상 무력화하는 약정도 포함될 수 있다. 따라서 저작물의 이용허락을 받은 자가 이용방법이나 조건을 위반하여 저작물을 이용한 경우에 이용방법이나 조건이 저작권의 본래적 내용에 해당하는 저작물의 이용을 적법하게 해 주는 방법이나 조건이라면 채무불이행뿐만 아니라 저작권침해의 불법행위도 성립하지만, 이용방법이나 조건이 저작권의 행사에 있어서 저작권자가 부가한 채권채무관계에 불과하다면 채무불이행만이 성립하게 되고 저작권침해로 되지는 아니한다고 해석하여야 한다. 결국 컴퓨터프로그램 저작권자는 그 프로그램을 실행하는 것에 대하여 배타적 권리를 가지는 것은 아니므로 프로그램의 실행은 저작권법 46조 1항 , 2항 에 정해진 ‘이용’에 해당하지 아니하고, 그와 관련한 허락도 저작권법 46조 1항 , 2항 에 정해진 ‘이용허락’에 포함되지 아니한다. 따라서 컴퓨터프로그램 사용과 관련하여 컴퓨터프로그램 저작권자와 그 사용자 사이에 사용허락계약이 체결된 경우에 그 사용자는 사용허락계약에 정해진 바에 따라 그 프로그램을 실행하여야 할 채무를 부담할 뿐이고, 그 사용자가 저작권법 46조 1항 , 2항 에서 말하는 '이용'과 관련 없는 사용허락계약에 정해진 조건에 위반한 방법으로 프로그램을 실행하였다고 하더라도 사용허락계약 위반이 성립하는 것은 별도로 하고 저작권 침해행위로 되지는 아니한다.

Meanwhile, “where the use of a work is in violation of copyright” as referred to in the proviso of Article 35-2 of the Copyright Act refers to where the main use of the work, which is conducted by the owner of temporary reproduction, constitutes an act that requires permission from the copyright holder, or is not included in an act that is permitted by the Copyright Act (referring to an act that falls under various restrictions, such as private reproduction, etc. prescribed by the Copyright Act) and thus constitutes an act that is deemed to be an infringement (Article 124(1)3 of the Copyright Act) where the right of reproduction, etc. under the Copyright Act is infringed, or where the use of the program meets certain requirements. Therefore, temporary reproduction accompanied thereby is excluded from the free use of the main sentence of Article 35-2 of

In this case, in the process of running the Open Capture with the user’s fee server of Open Capture, the user, while setting up a fee server of Open Capture on the hard disc of the computer, and up-to-face the sign of consent to use only for personal or non-business use presented by the Defendant as the copyright holder on the screen (the following screen is not run unless the character is done) was established, but individual users violated the license agreement with the Defendant by using it for business purpose in the company of the Plaintiffs.

However, the proviso of Article 35-2 of the Copyright Act does not apply to a case where an individual user used a paid server of Open Capture on a computer in violation of a license agreement with the defendant to use it, even if it does not constitute an infringement on the right to share of author’s property right, such as reproduction right, etc. under the Copyright Act. Thus, the proviso of Article 35-2 of the Copyright Act does not apply to a case where an individual user used the paid server of Open Capture in violation of a license agreement with the defendant and carried out a temporary reproduction incidental to it for business purposes, and thus, individual users are separately liable for nonperformance due to a breach of a license agreement with the defendant, even if it is separate, temporary reproduction

Furthermore, since the program of Open Capture was developed around 2003, the program was allowed to be used free of charge for about nine years until the program starts with 7.0 program of Open Capture, and the Defendant obtained free of charge and used the program and did not take any technical access control measures in the process of running the program using the program to be run free of charge, and when individual users use the program and run the 6.7 program, the paid program will be downloaded onto the hard disc, which is a tangible object, automatically through the user’s temporary route, and the user’s right to use the program can be used. However, if the user violates the copyright law, the copyright law grants the user the right to control the variety of copyrighted works, such as performance, public transmission, display, etc., and allows the user to use the program without any access control, the Defendant’s assertion that the use of the program constitutes an infringement on the user’s right to use the copyright (the Defendant’s right to use the program’s right to use the program to use it). This is reasonable to view that it constitutes an infringement on the user’s right to use of the program.

D. Whether the Plaintiffs’ liability for damages is established based on the Plaintiffs’ employer’s liability (whether the individual program user’s liability is established due to the infringement of copyright)

【Defendant’s Claim】

The defendant is the employer who actually directs and supervises the employees, and the defendant is liable to compensate the plaintiffs for damages arising from the employer's liability under Article 756 of the Civil Act with respect to the illegal act of copyright infringement committed in relation to the performance of the duties of the employees.

[Judgment]

The employer's liability is not an employer's own negligence liability but an employer's liability for an act of an employee in lieu of an employee who is the actor. As such, if an employer's liability is the subrogation liability, it is the premise that an employer's tort is established against an employee.

However, as seen earlier, it is separate from the fact that individual users, who are employees of the plaintiffs, have temporarily stored a paid server of Open Capture in the computer in the course of installing and operating the Open Capture, and the nonperformance due to the violation of a license agreement for use by individual users against the defendant, and the tort of infringing the defendant's right of reproduction of a computer program work is not established. Therefore, the defendant's claim on the employer's liability against the plaintiffs, which is premised on the establishment of tort caused by infringement of the defendant's right of reproduction of a computer program work, is without merit.

E. Whether the liability for damages based on the tort caused by the deceiving of the plaintiffs was established

【Defendant’s Claim】

The defendant asserts that since the plaintiffs, as they voluntarily use for non-business and personal use, they belong to the defendant and obtained permission for the use of the Open Capture and thereby, they caused property damage to the defendant, general tort is established against individual users.

[Judgment]

However, evidence (A6-1 to 5, A11-1, 2, 3, 7, 14) alone is insufficient to recognize the defendant's assertion that the representative of the plaintiffs belonged to the defendant and a license agreement for the use including the license for the use of Open Capture is concluded, and there is no other evidence to acknowledge it.

Even if the Defendant’s above assertion is based on the premise that the Defendant’s employee belongs to the Defendant in relation to the performance of his duties and thereby seeking compensation for damages arising from the user’s liability, it is insufficient to recognize the Defendant’s assertion that the Defendant’s employee belongs to the Defendant and obtained permission to use the Paid Open Capture, and there is no other evidence to support the allegation. The Defendant’s assertion also does not need to be viewed without any justifiable reason.

4. Conclusion

Therefore, there is no liability for damages based on the infringement of the right of reproduction before the payment of the plaintiffs upon the closure of the plaintiffs. Since the defendant contests the existence of the liability for damages, there is a legal interest to seek confirmation that there is no liability for damages, and the defendant's claim for damages against the plaintiffs is without merit.

Therefore, all of the plaintiffs' claims for counterclaim are reasonable, and all of the defendant's claims are without merit. Among the judgment of the first instance that different conclusions, the part concerning the plaintiff's main lawsuit against the defendant except for the plaintiff's main lawsuit and the part concerning the plaintiff's counterclaim against the other plaintiffs except for the plaintiff's main lawsuit against the defendant is unfair, so the relevant part is modified based on the remaining plaintiffs' appeals, and the defendant's appeal against the plaintiffs is dismissed in the same manner as the judgment of the second instance, and all of the appeals against the defendant are dismissed. The

[Attachment]

Judges Lee Dong-sung (Presiding Judge)