(영문) 전주지방법원 2018.4.13.선고 2017나5443 판결

The defendant shall pay to the plaintiff 4,010,000 won with 5% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of a judgment of the court of first instance, and 15% interest per annum from the next day to the day of full payment.

Reasons

1. Facts of recognition;

A. The Plaintiff is a company that develops and sells documentary programs and owns the copyright by developing the “HU Costa 150” program (hereinafter “instant book”).

B. The defendant received a request from C to operate a '000 to be imposed' (hereinafter referred to as "the imposition of this case") and sent the letter to C by forming a '○○○○○' by using it after receiving a free delivery of the letter program of this case from C.

C. C posted the phrase “000,000” using the above body sent by the Defendant while performing the work of revising the assessment website of this case.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 19, Eul evidence No. 1, the purport of the whole pleadings

2. Determination as to the cause of action

(a) Occurrence of liability for damages;

According to the above facts, since the defendant violated the plaintiff's property right by using the plaintiff's computer program, which is the plaintiff's computer program without permission, the defendant is liable to compensate the plaintiff's damages pursuant to Article 750 (1) of the Civil Code.

B. Scope of liability for damages

1) The Plaintiff is seeking to pay 4.510,00 won as the amount of damages that is equivalent to the amount of damages that can be ordinarily received by exercising his/her right pursuant to Article 125(2) of the Copyright Act, which is set forth in the contract for the use of the instant letter.

2) The phrase "amount equivalent to the amount which can be ordinarily received by exercising the right" under Article 125 (2) of the Copyright Act shall be deemed to mean the objectively reasonable amount which the infringer would have paid as the price for exploitation if the infringer had obtained permission for exploitation of the work. If the copyright holder does not enter into a contract for exploitation of the work in question or received the fee, it may be deemed as the basis for calculating the amount of damages caused by copyright infringement. However, in case where the copyright holder entered into a contract for exploitation of a work in a similar form as infringement and received the fee, barring any special circumstance such as where the fee was set exceptionally high due to exceptional circumstances, or where the copyright holder would have agreed with the other party to exercise the right to claim compensation for damages due to copyright infringement, it shall not be deemed that the copyright holder was objectively able to receive the fee as the amount of damages based on the amount of money that the copyright holder would normally have obtained by exercising the right (see, e.g., Supreme Court Decision 200Da31637, Nov. 36, 2001).

3) However, pursuant to Article 126 of the Copyright Act, the court may recognize a reasonable amount of damages in consideration of the overall purport of pleadings and the result of the examination of evidence. In full view of the following circumstances recognized, the court shall determine the Plaintiff’s amount of damages at KRW 500,000,000,000,000, based on comprehensive consideration of the facts acknowledged as

A) Upon C’s request, the Defendant sent it to C by forming a letter called “○○○○○○○○” upon downloading the instant letter program. It seems that he did not directly participate in the production of the website.

B) The Plaintiff’s books actually used are one kind of books developed and sold by the Plaintiff, and are merely four letters in the number of letters.

C) There is no other evidence to deem that there was no economic benefit that the Defendant acquired from the use of the documentary body, and that the Defendant used the instant documentary body for commercial purposes (the Defendant appears to have earned income by being employed as an employee of ○○ Construction regardless of the production, etc. of the website). In conclusion, it appears that the Defendant was employed as an employee of the instant documentary body

Therefore, as requested by the Plaintiff, the Defendant is obligated to pay to the Plaintiff damages for delay calculated by the ratio of 5% per annum as stipulated in the Civil Act from August 10, 2016 to April 28, 2017, which is the date of adjudication of the first instance court, and 15% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the next day to the date of full payment, to the date of the delivery of the copy of the complaint of this case to the Defendant.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is just in its conclusion, the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.