New Village Co., Ltd. and 10 others (Law Firm Yang & Yang, Attorneys Dok-bong et al., Counsel for the plaintiff-appellant)

Defendant and one other (Law Firm, Kim & Lee, Attorneys Cho Won-hee et al., Counsel for the defendant-appellant)

December 1, 2004

Suwon District Court Decision 2002Kahap284 delivered on February 14, 2003

1.The judgment of the first instance shall be modified as follows:

A. The provisional disposition order rendered on July 9, 2002 by the above support as to the case of provisional disposition prohibiting the reproduction of sound records, etc. between the obligees and the obligor in Suwon District Court Branch 2002Kahap77, Sung-nam Branch 2002, shall be approved within the scope cited in paragraph 2 below, and the part exceeding the scope shall be revoked.

B. The motion for provisional disposition of the obligees falling under the cancellation part of the above A is dismissed.

C. The cancellation part of the above paragraph (a) above may be provisionally executed.

2. Subject to the condition that the obligees deposit 200,000,000 won on behalf of the obligors by means of a guarantee within seven (7) days from the date on which they received notice of this decision, or submit the payment guarantee entrustment contract form document whose amount is the insured amount:

(a) The obligor may not assist the obligor to download the MP3 file in the “Seuri Sea” program developed by the obligor and the users of the “Seuri Sea” service operated through the entry servers below (the act of storing the MP3 file in his own computer with reproduction of the above PE3 file stored in the co-ownership servers of other users) by using the above service.

(b) The debtors shall not use three servers, such as IP addresses (defluence omitted) installed in the building in Gangnam-gu Seoul Metropolitan Government (Sauri-si and building name omitted) for the services of “Sari Sea” for “Sari Sea” services or similar services;

(c)The enforcement officer shall take adequate measures to give public notice of the purport of the above A, B.

3. 1/5 out of the total costs of the lawsuit shall be borne by the obligees, the remainder of 4/5 by the obligors, respectively.

1. Purport of request;

Creditors : The obligees approve the provisional disposition order rendered on July 9, 2002 with respect to the case of provisional disposition for prohibition of reproduction of music records, etc. among the obligees and debtors in Suwon District Court Branch 2002Kahap77, Sung-nam Branch 2002Kahap 77, etc. (the creditors reduced the purport of the motion in the first instance court after the provisional disposition order

The obligor: Revocation of the above provisional disposition order, and the obligees' request for provisional disposition is dismissed.

2. Purport of appeal

The judgment of the first instance shall be revoked. The obligees' motion for provisional disposition stated in the purport of their motion shall be dismissed.

1. Determination of provisional disposition of this case

On July 9, 2002, the obligees asserted that they had the claim for suspension of infringement due to the infringement of the right of reproduction and distribution of music records against the obligor and that the above support was against the obligor as the preserved right, and on the case of provisional disposition of prohibition of reproduction of music records, etc., the Suwon District Court Sung-nam Branch 2002Kahap777, the above support was not made within 7 days from the date when the obligees received the notification of this decision, under the condition that they deposit 200,000 won for the obligor as the guarantee or submit the payment guarantee entrustment contract document with the above amount as the insurance amount, the obligor would not dismiss the obligor’s application of the above provisional disposition of "20,000,000 for the obligor," which was developed and provided by the obligor, as the obligor’s user of the above program, as the producer’s music list (hereinafter “the instant music list” or “the instant singing server”). The obligor’s application of the above provisional disposition of "20,300,000."

2. Facts of recognition;

The following facts are that there is no dispute between the parties, evidence 1-2, evidence 2-1 to 5, evidence 3-1 to 4, evidence 5-1 to 3, evidence 6-1 to 10, evidence 11-2, small evidence 12, and 13, evidence 14-1, 2, evidence 15-1 to 19, evidence 16 through 20, evidence 1 to 2-1, evidence 2-1 to 3-1, evidence 2-1 to 5, evidence 2-2, evidence 1 to 3-1, evidence 2-1 to 4, evidence 2-1, evidence 2-1 to 3-2, evidence 1 to 4-1, evidence 2-1 to 5, evidence 2-2, evidence 1 to 3-2, evidence 1 to 3-1, evidence 24-1 to 4, evidence 1 to 5-1, evidence 25-1 to 9-1, evidence 1 to 3

A. Status of the parties

(1) The obligees manufacture or sell music records. The obligees manufacture or sell music records corresponding to the corresponding order among the music records listed in Nos. 1 through 11 in the separate sheet. The obligees falling under Nos. 1 through 3, 5, and 10 in the above list are producers of music first fixed in the music (hereinafter referred to as the "musics") and the obligees falling under Nos. 4 and 11 in the above list 4 and 11 are creditors who were producers of music corporation EIus International Service Companies (EMic Mus International Service Limited) and creditors who obtained exclusive or exclusive right to produce music records and exclusive right to sell music records within the Republic of Korea from non-exclusive or non-exclusive producers of music records (hereinafter referred to as "the obligees"), and non-exclusive right to sell music records and exclusive right to sell music records.

(2) On March 200, the debtor started the development of the program so that personal computers of users (connection) can share a music file directly connected with each other without going through the central server (so called “peer to”; hereinafter “P2P method”) to use MP3 (MPEG 1 Lyer 3 and general wab-type 1/10, and then started the program to share a music file in the form of a CD-type to realize a CD-level sound quality. From May 18, 2000 to May 18, 200, the debtor distributed the program with the name of “www Sea” (www) “Wyer 3” to use the program, but the debtor provided the program with the content of the program as “marine music file-type” (www-type 3). However, the debtor provided the program with the content of the program as “marine music file-type” (www-type 3).

(b) Method of using sound sea services;

(1) The user shall set up a sound sea program that is distributed free of charge by the debtor on his own computer, and then register the user identification code (ID, IBD; hereinafter “IBD”) and password as a member of the “sub-sea”, and shall keep MP3 files so that other sound users may download MP3 files by accessing their own computer and receive MP3 files. The user shall designate “Co-Pour Pour Pour” and “Round Round Pool” to store MP3 files which are downloaded by other users (the basic establishment of the above program provides that the multiple Pool is consistent with the shared Pool. Thus, as long as the users do not change otherwise, the MP3 files which are downloaded with the multiple Pool are stored at the same time with the shared Pool and stored at the same time, and that there is no difference between the case where other sound users can immediately receive MP3 files with the MPP list and the case where other users can receive MP3 files with the MP list.

(2) When a user completes the installation of a sound marine program and implements the program, he/she automatically connects the sound marine server. At this time, the user’s sound marine program shall automatically transmit information necessary to directly connect the user’s computer, such as the user’s IP address, etc., to the sound marine server. The sound marine server shall confirm the ID and password of the access user, and shall automatically transmit the access information of the access user immediately before 5,000, he/she keeps and manage the user’s access information, such as the user’s IP address, etc., along with the ID and password, entered at the time of the user’s registration.

(3) If a user enters an optional language, such as singing, in the search windows of a sound sea program, and requests a search, the sound sea program directly transmits the pertinent search language to the other sound sea users via the IP address provided by the server as above, and the sound sea program of other users to whom the search language was transmitted is searched by the co-user of his own computer hard disc and then finds the file consistent with the requested search language, the relevant file’s information shall be transmitted to the computer of the user requesting the search.

(4) The sound sea program of the user requesting the search reconcepts the file information that other users responded to, and shows the list of the results of the search immediately after 2,3 seconds from the time when the search was directed. The file name, singing out, number of files, file size, user (user), ID, sound quality, singing, singing time, speed, etc. are indicated, and the user requesting the search may display the list in the order of the results of the search using automatic display function in such a way as to be desired, such as speed, size, and sound.

(5) If the user requesting the search selects MP3 files (general speed and negative quality being considered) which wish to receive a download among the list as a result of the above search, the user’s computer directly connects the user’s computer in which the file is kept with the user’s computer using the IP address provided by the sound sea server to 1:1, and store the reproduction of the relevant file located in the provider’s co-owned brand with the user’s computer, which is downloaded to the downloader (hereinafter referred to as “divers”).

(d) Characteristics and conditions of use of sound and sea services;

(1) The system that provides sound sea services (hereinafter referred to as “small Sea System”) is deemed to exist. However, by managing only the information required for the direct connection of computers, such as IP addresses, it is evaluated that the problems in the existing P2P method, i.e., the financial burden under the operation of the small central server or the technical cognities (representatived by the Gnuta) in the file transmission process, are concurrently resolved. Due to the nature of such system, the central server of the sound sea is kept only the connected information, such as IP addresses of the users, and the list of MP3 files itself or MP3 files, which are the subject of sharing, and the file information is not kept.

(2) In light of the above characteristics of the sound sea service, the number of users accessing the sound sea server increased by a large number of users, and the number of users available for search. At least 4.5 million members registered with the sound sea service prior to the suspension of service by the instant provisional disposition order, at least 30,00 per day average visitors, and at least 5,000 concurrent visitors.

(3) 소리바다 프로그램의 설치 화면에는 다음과 같은 내용의 경고문이 고지되어 있다. “소리나라는 소리바다 사용자들이 소유하고 있는 MP3파일에 대해 어떠한 책임도 없음을 밝힙니다. 인터넷을 통해 유포되는 MP3파일 중 많은 파일들이 합법적이기는 하나, 저작권자의 허락 없이 불법적으로 유통되는 MP3파일도 있습니다. 소리나라는 특정 MP3파일의 합법 여부에 대해 알 수 없음을 밝힙니다. 불법 MP3파일을 복제 또는 배포하는 것은 국내 또는 국외 저작권법에 위배될 수 있으며, 이 저작권법을 준수하는 것은 사용자의 몫임을 알려드립니다.”

(4) The instant singing, most of which the obligor holds neighboring rights or exclusive license, has been doing business or downloaded through sound marine services.

(5) Korea’s domestic music records market has been developed from the IMF in 1998 and from the market scale of 380 billion won in 1999 to the market scale of 4,10.4 billion won in 2000, but has been reduced to 373.3 billion won in 2001.

3. The obligees' grounds for the motion of this case

The sound sea program itself is developed for the purpose of reproducing and distributing music records without permission for commercial purposes, such as advertising fees, and the sound sea service is operated for the same purpose. The users who exchange the MP3 file of the music of this case through the sound sea service violate the rights of distribution (i.e., distribution of music producers of this case) and the right of reproduction (i.e., the music producers of this case).

On the other hand, by developing and distributing the sound sea program and operating the sound sea service, the debtors directly infringed the neighboring rights of the producers of this case with the above users, or aided and abetted the infringement of the neighboring rights of the users.

Therefore, the music record producers of this case have the right to claim for the suspension of infringement under Article 91(1) of the Copyright Act against the debtors, and the creditors' act is likely to cause significant damage, such as rapid decline in the sales of music records, and therefore the preservation is necessary. Accordingly, the creditors seek the approval of the provisional disposition of this case in subrogation of the neighboring rights producer directly or as neighboring rights.

4. Determination as to whether individual users’ neighboring rights are infringed

(a) Relation to the responsibilities of debtors;

The obligees claim that the obligor infringes on neighboring rights by the means of aiding and abetting the users, on the premise that the act of downloading and downloading by the sound sea users infringes on neighboring rights of the producers of this case. Thus, the obligor first examines whether the sound sea users infringe on neighboring rights.

B. Whether the right to distribute has been infringed

The obligees asserts that the act of Round as seen above infringed upon the right of distribution of the producers of sound sea users of this case, and thus, the "distribution" means the transfer or lending of the original or its reproduction of the copyrighted work to the general public with or without payment (Article 2 subparagraph 15 of the Copyright Act). Even if a user connects a certain MP3 file to a sound marine server without receiving any payment, the transfer or lease of the MP3 file itself cannot be deemed to have existed (the "distribution" under the Copyright Act means the transfer of a copyrighted work or a reproduction in the form of fluid in comparison with the concept of "transmission" (the "distribution" under the Copyright Act means the transfer of a copyrighted work or a reproduction in the form of fluid. It is difficult to view that any user's act of storing MP3 files on his own computer's co-owned Pool and accessing it to the sound marine server so that other users may download it, apart from the transmission as seen next in the following cases, it constitutes a distribution right infringement on the right of distribution).

C. Whether the reproduction right is infringed

(1) As seen earlier, the act of a sound sea service user by accessing another user’s computer and storing a copy of the instant singing (MP3 file) on one’s own computer in the hard disc, etc. is fixing the sound into a tangible medium, and thus, the act of infringing the right of reproduction of the music producer concerned constitutes an infringement of the right of reproduction of the music producer (the creditor claims that the user’s act of creating MP3 files by changing the sound source of the instant singing fixed in the CD and storing them on one’s own computer, etc.). As such, the act of creating and storing MP3 files for personal purposes constitutes reproduction as long as the creation and storage of MP3 files are recognized as having substantial identity between the sound source fixed in the CD, but such MP3 file creation and storage may constitute reproduction for private use. Therefore, the above part of the claim is without merit).

(2) Defenses of reproduction for private use

The debtors asserts that the act of downloading by the sound sea users constitutes reproduction for private use (private use) and it does not infringe the right of reproduction of the music record producers of this case.

To be subject to the reproduction for private use stipulated in Article 27 of the Copyright Act, the reproduction must be ① without profit-making purposes (main requirements), ② personally used or within the limit of family and the equivalent use ( objective requirements), and first of all, the objective requirements shall be examined.

In order to be used within a limited scope of individual, home, or the like, users of reproduction must not be multiple groups, and there is a close human-combined service between them. In other words, sound marine service can be freely used when it is registered, that is, the user can store MP3 files in the sharing Pool and access to the sound marine server, which is the maximum of 5,00 users can freely download without any specific procedure. According to the basis for the establishment of the sound marine program, it is required that the downloader corresponds to the shared Pool, so in principle, MP3 files which are downloaded to the multiple pool can be immediately received by the other users, and it is not necessary to use the MP3 file without any specific personal-related relation between the users, and it is not necessary to use the MP3 file without any specific personal-related relation between the users and the members, and it is not necessary to use the MP3 file without any specific personal-related relation.

Meanwhile, the obligor asserts that the receipt by the sound sea users of the MP3 file downloads merely correspond to the pre-entry of music records intended to purchase through radio, television, or sample CDs stored in a sale store, and thus does not constitute an infringement of the right of reproduction (the so-called "samping defense"). However, even if the obligor received MP3 files downloads for the purpose of pre-entry of music records intended to purchase by the snow sound sea users, the obligor’s act of downloading the same trade name of the sound sea users is an act of exchanging the MP3 files corresponding to the permanent reproduction as a substitute for the CD, and it cannot be deemed that the act is identical to the pre-entry of music records intended to purchase through the sample CDs stored at a temporary sales store, etc., and therefore, the above assertion is without merit.

(d) argument regarding the right of transmission;

In this case, the debtors asserts that the act of receiving MP3 files on the co-owned brand so that they can download them to other users, or the act of receiving MP3 files on the co-owned brand of other users to download through the Internet is a reproduction act which inevitably accompanying transmission through the Internet, and is not a reproduction right included in the concept of transmission under the Copyright Act, but a transmission right is protected only by the transmission right. In the current Copyright Act, the creditors who are producers of phonograms do not separately grant the transmission right to neighboring rights. Thus, even if there is such reproduction act, the creditors who are producers of phonograms are not protected by the transmission right, they do not constitute a violation of the right of reproduction, unless the creditors who are producers of phonograms are protected by the transmission right (the debtors claim that the act of download by the sound users falls under the transmission under the Copyright Act and does not constitute the distribution right under the Copyright Act, but there is no room to recognize the infringement of the distribution right, as seen earlier,

The term "stop, transmission" means the transmission or use of a work by means of wireless or wire communication so that the public may receive or use the work at the time and place of individual choice (Article 2 subparagraph 9-2 of the Copyright Act). The user's act constitutes providing a work by wire communication so that other users may receive or use the work at the time and place of each individual choice of up to 5,000 persons to be changed at the time and place of connection, and it can be seen as a transmission act. However, although the revised Copyright Act (amended by Act No. 7233 of Oct. 16, 2004) which recognizes the transmission right to the phonogram producers, it is likely that the above act may infringe on the transmission right of the phonogram producers) after January 17, 2005, the act of storing the MP3 file received by multiple using such method constitutes a reproduction beyond the concept of transmission (the act of reproduction cannot be seen as being accompanied by the reproduction act of the obligor).

5. Determination as to whether the debtor's neighboring rights were infringed

A. Whether the agreement constitutes a joint tort

In order to establish a joint tort under Article 760(1) of the Civil Act, it is not necessary for an actor to recognize the common or common perception of intention among the actors, but it is objectively recognized that the infringement of right against the victim was committed and that the act was common cause for the occurrence of damages. Further, each act must constitute an independent tort (see, e.g., Supreme Court Decisions 87Meu2723, May 23, 1989; 95Da45767, May 14, 1996). As seen above, since the obligor manages only information about access, such as IDd, etc. while operating the sound sea server, it was difficult for individual users to clearly recognize the act of unlawful MP3 file sharing and downloadd, but it was difficult for the obligor to independently participate in the act of reproduction to the extent that the obligor took part in the act of reproduction, such as that the sound server was entirely engaged in the process of transmitting and downloading the results of the search and search, and that it was difficult for the obligor to independently recognize the right of reproduction of this case.

B. Whether aiding and abetting act is established

(1) Article 760(3) of the Civil Act refers to all direct and indirect acts that facilitate a tort, and the interpretation of the Civil Act that considers negligence as a matter of principle with the intention of compensating for damages, unlike the Criminal Act, as the purpose of compensating for damages, is capable of aiding and abetting by negligence. In such a case, the content of negligence refers to a breach of this duty on the premise that it has a duty of care not to assist a tort (see Supreme Court Decision 2002Da35850, Jan. 10, 2003, etc.).

In general, the file sharing system under the P2P method (hereinafter “P2P system”) is likely to cause unauthorized circulation of copyrighted works in digital forms by users. However, even so, it cannot be readily concluded that the operator of the P2P system uniformly assumes the responsibility for aiding and abetting infringement, such as neighboring rights of users. The extent that the operator is involved in the user’s file sharing and exchanging activities through the server while operating the server, whether the user can autonomously use the file sharing, etc. without the operator’s involvement, whether the operator can detect and limit the use of services if there is a user who commits infringement, such as neighboring rights; whether the P2P system provides other functions that facilitate users’ infringement, such as neighboring rights, in addition to the file sharing function itself; whether the P2P system provides neighboring rights; whether the operator obtains profits from the infringement of neighboring rights; whether the operator can easily obtain profits from the infringement of neighboring rights; and whether the operator is in violation of the duty of care or duty of care even if he/she does not assist the user’s infringement.

(2) Comprehensively considering the purport of each of the above evidence, the obligor: (a) ordered the name of the marine file to be “small Sea”; and (b) designed and developed only MP3 files; (c) at the time of the obligor’s development of the sound marine program, the infringement of neighboring rights, such as air liners, etc. through other P2P services; and (d) was in progress by legal disputes; (c) the obligor was in charge of preparing and managing the list containing Arabic, passwords, IP addresses, etc.; and (d) it was possible for users to know or know of the status of the operation of the service by linking the users in the same way as other general users; (e) users could easily share the file using the 3rd file server and neighboring rights; (e) users could have access only to the sound server and neighboring rights; and (e) at the time of the obligor’s development of the 3rd program, the obligor’s development of the 3rd network using the 3rd network and the 3rd network using the 3rd network using the 3rd network.

(3) The debtor asserts that in the case of a sound sea service, the users’ search and download acts are conducted not via the sound sea server, and the debtors do not actually participate in the act of sharing the file by the users, and the debtors merely warn the sound sea users of infringement, such as copyright, and they also share many legitimate files using the sound sea service, so they do not bear the responsibility for aiding and abetting the users’ unlawful file sharing and exchange.

In the process of illegally reproducing MP3 files by users, even if the sound sea server did not participate in the process of illegally reproducing MP3 files, and the users sent warnings to users about copyright infringement on the screen of the program installation, as seen earlier, insofar as the debtors provided MP3 files sharing services using the sound sea program and server, even though they could have sufficiently predicted or predicted the infringement of neighboring rights through the sound sea service, they cannot escape from the responsibility of aiding and abetting the infringement of neighboring rights of users. This does not change because legitimate files are shared by many people through the sound sea service, the above assertion by the debtors is without merit.

(4) The obligor asserts that the obligor, an online service provider, is exempt from liability under the limitation on liability of an online service provider under the Copyright Act because there is no technical means to prevent and block the infringement of the users of the sound sea service. Accordingly, according to the aforementioned evidence, the obligor’s efforts to improve the function of the sound sea service, while actively taking measures to improve the function of the MP3 file, the obligor’s efforts to prevent infringement of neighboring rights, as long as he/she did not make any effort to prevent any infringement of neighboring rights, he/she cannot claim exemption from liability as long as he/she did not make any effort to prevent any infringement of neighboring rights.

6. Determination as to whether it is possible to exercise the right to demand suspension

(a) Subject of request, such as suspension;

(1) Article 91(1) of the Copyright Act provides that “Any person who holds copyright or other rights protected under this Act” may demand the suspension of infringement. As seen earlier, the obligees who are producers of phonograms fall under the producers of phonograms under Article 2 subparag. 7 of the Copyright Act, and thus, the obligees who are producers of phonograms may demand the suspension of this case as neighboring rights.

(2) Meanwhile, in the case of music records in which IMM community personal service provider and IMN Entertainment are music record producers, the Korean country has been protected on October 10, 1987; the United States has joined on March 10, 1974; and the United Kingdom has joined on April 18, 1973 as a member of each party to the Convention for the Protection of Music Producers from Unauthorized Reproduction of music Records (Convention for the Protection of Music Producers) and Article 61 subparagraph 2 (c) of the Copyright Act (the first fixed music record in the contracting party to the agreement that the Republic of Korea has joined or entered into). The creditors entitled to exercise their neighboring rights are entitled to protect the music record producers from infringement on the above neighboring rights by contract with the above music record producers.

However, the facts that the above producers of phonograms do not exercise their neighboring rights in Korea do not conflict between the parties, and the necessity of preserving the creditors' right to enforce the above phonograms in Korea is recognized (in order to protect the right to enforce the phonogram in Korea, it is deemed that there is an independent benefit to seek a suspension request). Thus, the creditors who are producers of the above producers can make a request for the suspension of the case by acting in subrogation of the neighboring rights of the above producers.

The debtors claim that the exercise of neighboring rights of creditors under the contract of the above foreign producers is prohibited. Thus, according to the evidence No. 24-1, the debtors claim that the above foreign producers' exercise of neighboring rights of creditors is prohibited, "each party shall not act as an agent for the other party, or enter into a contract on behalf of the other party, or in the name of the other party or on behalf of the other party" (Article 26), and "the creditors IMMM Korea Co., Ltd. shall notify the other party if they become aware of the unlawful use of trademarks, etc. similar to the trademark subject to the contract" (Article 18 (E)), although it is true that the above facts alone are not enough to view that the exercise of neighboring rights of the above creditors is prohibited, and contrary to the above foreign producers' exercise of the right to suspend the above creditors' exercise of neighboring rights, the above foreign producers and creditors MMM Korea Co., Ltd. and Korea Non-MMMM Korea Co., Ltd. shall bear the duty of legal protection of neighboring rights" (Article 18 (E).).

(b) Other party to the claim such as suspension;

The debtors claim that Article 91(1) of the Copyright Act provides that "a person who infringes upon his/her right" means the other party to the claim such as suspension, etc. In light of the purport of Article 92 of the Copyright Act that provides that certain types of acts constituting aiding and abetting and abetting shall be deemed infringement of copyright and other rights (the same shall apply to the provisions of Article 127 of the Patent Act, Article 43 of the Utility Model Act, and Article 66 of the Trademark Act). The right of suspension, etc. under Article 91 of the Copyright Act can only be exercised against the direct infringer of the right such as copyright and the person who is deemed to have directly infringed by Article 92 of the Copyright Act

However, even if Article 92 of the Copyright Act provides that a certain act shall be deemed as a violation, such as suspending the person who aided and abetting another person who does not fall under such provision cannot be concluded to be excluded from the subject of the claim (the types of acts stipulated in the above provision are difficult to be deemed as restrictively enumerated in the act of aiding and abetting and abetting infringement, and rather, the subject of the claim is expanded including acts difficult to be included in the act of aiding and abetting infringement). Meanwhile, infringement such as neighboring rights is a tort under Article 91(1) of the Copyright Act and Article 91(3) of the Copyright Act recognizes the right to demand suspension, etc. in addition to the right to claim damages in order to secure the effectiveness of remedy, the aiding and abetting person is also deemed joint tortfeasor. In this case, when users infringe neighboring rights as seen in the above case, it is unnecessary to access the sound marine server, and it cannot be concluded that the other party to the claim can not be seen to be able to achieve the effect of suspending neighboring rights by stopping the act of aiding and abetting the operation of the marine server.

(c) Object of request, such as suspension;

(1) The obligees are entitled to seek suspension of aiding and abetting the obligor, directly or by subrogation, who is aiding and abetting the infringement of neighboring rights of the sound marine users. Ultimately, the obligor is obliged not to assist the users of the "Sriuri Sea" program and the "Sriuri Sea" service operated through their servers to download MP3 files containing the instant singing (the act of storing the copies of the PE3 file stored in another user's co-ownership platform) using the above services (the above violation of the right of distribution, etc. of the right to distribute the PE3 file), and further, in order to effectively secure the obligor's performance of the obligation to prohibit such downloading and aiding and abetting as well as the creditors' rights relief therefrom, it is necessary for the obligor to prohibit the use of the MP3 file files containing the instant singing (the name of the Seoul Gangnam-gu (the name of the commercial area and the name of the building omitted), such as IP (the name of the building omitted) in order to operate the sound marine service or the service in such a way.

(2) The obligor asserts that since the obligor is not a means to prevent users from downloading, such obligation is unfair as it is subject to a third party’s act that cannot be controlled by the obligor, and thus, seeking the prohibition of the operation of sound sea services itself goes beyond the scope of protection of copyright, and thus, it is not permissible in light of the online service provider’s limitation of liability and the principle of excessive prohibition.

On the other hand, as seen above, the access to the sound marine server by the users is an essential element. Thus, in the event that the infringement of neighboring rights is caused by the users' download acts, the prior selection of such acts falls under the scope of the obligor's responsibility to suspend the provision of services (the infringement of neighboring rights has occurred due to the small sea services). Thus, even according to the obligor's assertion, the reception of the MP3 file of the singing music that is alleged to infringe neighboring rights cannot be decided first, and therefore, the result of the suspension of infringement can be achieved effectively only through the suspension of use of the server provided to the sound marine service. Thus, the obligor's above assertion is without merit (the obligor does not take any measures to prevent the infringement of rights, such as the download of users, in addition to posting a warning, and therefore, it cannot be asserted that the online service provider's exemption, etc. under the Copyright Act cannot be claimed).

7. Determination on the necessity of preservation

In light of the above facts, such as the size of users of the sound sea service immediately before and after the suspension of the service due to the provisional disposition of this case, and the decline in the volume of the sound sales before and after the commencement of consumption marine service, if the sound sea service continues to be used, and if neighboring rights related to the music of this case are infringed by the service users, the creditors will suffer significant damage that would be difficult to recover and such damage in the future. Therefore, the provisional disposition of this case is clearly required to preserve the provisional disposition of this case ( even if the existing sound sea service at present is suspended due to the provisional disposition of this case and the debtor provides new service by continuously developing the programs such as the "Seuri Sea2" and the "Seuri Sea3" which are replaced by the obligor, the technical discrimination between such services and the existing sound sea service cannot be excluded from the possibility of using the existing sound sea service in terms of economic efficiency, operation, and management possibility, it is difficult to view that the need for future preservation has become conclusive in the future).

Meanwhile, even if the application for provisional disposition of this case is accepted, the obligor asserts to the effect that the obligor does not have any particular influence on the obligees, while such provisional disposition causes a critical obstacle to the development of Internet technology, such as P2P system including the sound sea service in the future. However, even if the application for provisional disposition of this case is accepted, it is not clearly explained that the obligor's economic damage beyond the economic damage that the obligor or the provider of the sound sea service could incur, which could not be recovered, would not be significantly significant compared to the interests that the obligor should have protected from the infringement of neighboring rights. In light of the fact that the provisional disposition of this case was accepted, it is difficult to view that there is no need for the preservation of neighboring rights in this case where the obligor's infringement of neighboring rights is recognized.

8. Conclusion

Thus, the creditor's application for provisional disposition of this case is approved within the scope of the above recognition because there is a vindication of the right to preserve and the necessity of preservation is recognized. The part in excess of the scope is revoked, and the application for provisional disposition corresponding to the cancelled part is dismissed. Since the judgment of the court of first instance is unfair with different conclusions, it is reasonable to accept part of the debtor's appeal and it is modified as above.

Judges Park Poe-young (Presiding Judge)