[1] Where an online service provider, who operates the Internet portal site, posted a notice that infringes on another person's copyright at the Internet space provided by him/her, but did not specifically recognize the circumstances where the notice was posted due to the victim's demand to delete and block specific and individual notices, or cannot be managed and controlled in technology or economy, whether the online service provider is obligated to take appropriate measures, such as deletion and blocking of the notice (negative in principle)

[2] The case holding that in a case where Gap company Eul did not perform its duty to take appropriate measures, such as deletion and blocking of notice, even though Eul company's members posted dynamic images produced by Eul company Eul company Eul company's members on the Internet camera, without permission, and infringed Gap's copyright, Eul company's joint tort liability for aiding and abetting and abetting by omission, the case holding that it is difficult to view Eul company's liability to take measures, such as deletion and blocking of notice, on the ground that it is difficult to view Eul company's request for deletion and blocking of a notice that infringed Eul's copyright on the above video by negligence and individually, on the ground that it is difficult to view Eul company's request for deletion and blocking of notice

[1] Even if a notice that infringes on other persons’ copyright was posted at the Internet space provided by an online service provider operating the Internet portal site, and the Internet users can easily find the above notice through the search function, such circumstance alone does not immediately lead to tort liability against the online service provider on the online service provider. Even if a notice that infringes on other persons’ copyright was posted at the Internet space provided by the online service provider, if the online service provider did not specifically recognize the circumstances where the notice was posted because it did not receive a request for deletion and blocking of specific and individual notices from the victim whose copyright was infringed, or if it is impossible to manage and control such notices in technical and economic aspects, barring special circumstances to recognize the duty of deletion, it is difficult to deem that the online service provider has the duty to take appropriate measures, such as deletion of the notice to the online service provider and blocking any notices similar to those of the same Internet space in the future.

[2] The case holding that in a case where Gap company Eul did not perform its duty to delete and block Eul's copyright without permission when its members posted a video product produced by Eul company Eul against Eul company Eul company Eul company's Internet portal site without permission, and Eul company's joint tort liability for aiding and abetting by omission was held liable, the case holding that although Eul sent Eul company's written request for search to search the video product and urge Gap to take measures against Eul company's copyright infringement upon Eul's copyright infringement upon Eul company's copyright infringement upon Eul company's copyright infringement upon Eul company's copyright infringement upon Eul company's copyright infringement upon Eul company's copyright infringement upon Gap company's copyright infringement upon Eul's copyright infringement upon Gap company's copyright infringement upon Gap company's copyright infringement upon Gap company's copyright infringement upon Gap company's copyright infringement upon Gap company's copyright infringement upon Gap company's search and video, and it is hard to see that Gap company's copyright infringement upon Gap company's copyright infringement upon Gap company's copyright infringement upon Gap's copyright infringement upon Gap's copyright infringement.

[1] Articles 16, 18, 102, and 103 of the Copyright Act; Articles 750 and 760(3) of the Civil Act / [2] Articles 16, 18, 102, and 103 of the Copyright Act; Articles 750 and 760(3) of the Civil Act

[1] Supreme Court Decision 2009Da4343 decided Mar. 11, 2010 (Gong2010Sang, 718)

Plaintiff (Law Firm Jinjin, Attorneys Song Jae-sik et al., Counsel for the plaintiff-appellant)

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

Seoul High Court Decision 2015Na2049406 decided November 3, 2016

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether Defendant Members’ copyright infringement (Ground of appeal No. 1)

The lower court determined that the members of the Internet portal site operated by the Defendant (hereinafter “Defendant site”) infringed the Plaintiff’s copyright (right of reproduction and transmission) on the instant videos recorded in the lower judgment by intention or negligence. For that reason, the Plaintiff’s instant videos produced by the Plaintiff can be known to the effect that the Plaintiff was produced by the Defendant’s efforts by the arbitr, by explaining the basic principles of party image and directly displaying demonstration, etc., and that the instant videos were produced by the arbitr’s efforts. The members of the Defendant website posted the instant videos on the car page opened on the Defendant’s website without the Plaintiff’s permission, so that the general public can reproduce and listen to them.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on copyright infringement, without exhaust all necessary deliberations, contrary

2. Whether aiding and abetting liability by Defendant’s omission is recognized (Ground of appeal Nos. 2 and 4)

A. Even if a notice that infringes on other persons’ copyright was posted at the Internet space provided by an online service provider operating the Internet portal site, and the Internet users can easily find the above notice through the search function, such circumstance alone does not immediately lead to tort liability against the online service provider for infringement of copyright (see, e.g., Supreme Court Decision 2009Da4343, Mar. 11, 2010). Even if a notice that infringes on other persons’ copyright was posted at the Internet space provided by the online service provider, if the online service provider did not specifically recognize the circumstances in which the copyright was infringed, or if it is impossible to manage and control technical and economic posts, it is difficult to deem that the online service provider has a duty to delete the notice to the contrary, barring special circumstances to recognize the duty of deletion, etc. in light of the nature of the notice, etc., and to prevent the posting similar to the Internet space in the future.

B. According to the evidence and records duly admitted, the following circumstances are revealed.

(1) The Plaintiff sent a written request to the Defendant to inform the Defendant of the copyright infringement of Defendant’s website members on the instant video. However, the Plaintiff only stated the search language to find the instant video and the representative address on the Defendant’s website where the instant video was operated, and did not specifically and individually specify the Internet address (UR) or the posting title on which the instant video was posted. Moreover, there is no circumstance to deem that the Plaintiff could have made it particularly difficult to specify the posting in such a way.

(2) 원고가 요청서에 기재한 검색어인 ‘○○○○○○○○’, ‘△△△’ 등을 피고 사이트의 검색창이나 피고 사이트에 업로드된 동영상을 이용할 수 있는 공간인 티비팟(tvpot)의 검색창에 입력하면 수많은 동영상이 나타나는데, 그중 어떤 것이 원고의 저작권을 침해하는 게시물인지는 검색 결과 자체만으로는 특정하기 어렵다. 또한 그렇게 나타난 동영상 중에는 이 사건 동영상과 아무런 관련 없는 동영상도 일부 포함되어 있다.

(3) The Plaintiff’s request includes the representative address in the Defendant’s website, but there is no specific material that can identify what among the multiple posts posted on the Defendant’s website is an infringement of the Plaintiff’s copyright.

(4) Due to the characteristics of a series of images consisting of a series of images, it is difficult to readily conclude that a part of the screen is a copyright infringement immediately. Therefore, in order to see whether the screen images revealed as a result of the search infringe on copyright, the entire or considerable part of the screen images should be reproduced on a daily basis. However, in light of the size of the general Internet portal site, the number of reports on infringement, the number of reports on infringement of rights, the number of screen images exposed to the business, and the reproduction time of screen pictures, etc., taking measures, such as removing and eliminating notices that infringe on the Plaintiff’s copyright only by the materials attached to the Plaintiff’s request, as well as excessive costs, are difficult.

(5) The Defendant deleted a specific part of the notices that are attached to the Plaintiff’s written request, and requested information that could specify the Internet address (URL) of the infringing copyright when the copyright holder files a report on his/her infringement of rights, and accordingly coping with the infringement of rights by means of deletion of the notices when the copyright holder specified the notices, warning measures, etc. Accordingly, the Defendant may be deemed to have taken appropriate measures as to the infringement of copyright to the extent technically and economically possible.

(6) The Defendant requested the Plaintiff to specify the notice to be deleted in detail on several occasions. Among the representative address of the carbook presented by the Plaintiff, the Defendant entered the Internet address (URL) of the notice on which the instant video was posted, and sent a reply demanding the Plaintiff to verify whether the notice infringed on the Plaintiff’s copyright was posted. As to this, the Plaintiff did not answer any question.

(7) In order to apply the technology that uses the unique characteristics of the original file of video, etc. to recognize and block the copyrighted work, the original file of the given video must be filed. However, the Plaintiff did not provide the original file of the instant video to the Defendant.

C. In light of these circumstances, it is difficult to view that the Plaintiff requested the Defendant to delete and block the notices that infringe the Plaintiff’s copyright of the video of this case, and no other circumstance exists to deem that the Defendant specifically recognized the circumstances where the notices were posted. Moreover, it is difficult to clearly understand whether the notices searched due to search terms, etc. offered by the Plaintiff infringed the Plaintiff’s copyright, and it is difficult to deem that such notices could have been managed and controlled technically and economically. Therefore, it is difficult to deem that the Defendant was liable to take measures, such as deletion of notices that infringe the Plaintiff’s copyright of the video of this case and blocking posting similar contents on the Defendant’s website.

Nevertheless, the lower court revoked the first instance judgment denying the Defendant’s liability, and determined that the Defendant, who violated the foregoing, is liable as a joint tortfeasor by aiding and abetting an online service provider on the premise that the Defendant is liable to delete and block copyright infringement posts posted up on the Defendant’s website. In so determining, the lower court erred by misapprehending the legal doctrine on aiding and abetting liability due to the omission by an online service provider, thereby adversely affecting the conclusion of the judgment. The Defendant’

3. Conclusion

Without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min You-sook (Presiding Justice)