The prosecutor's appeal is dismissed.

1. A summary of the grounds of appeal cannot be readily concluded that the app registered with the Defendant in the Ansan Market and the website developed by the victim are linked by direct links or in-depth links, as the reasoning of the lower judgment.

The court below erred by misunderstanding the facts and affecting the conclusion of the judgment.

2. Determination

A. On November 201, 2010, the Defendant infringed the victim’s author’s property right by reproducing “E” mobile services produced by the victim D Co., Ltd. in the Defendant’s residence in Dongjak-gu Seoul Metropolitan Government, without a legitimate authority to prepare reproduction, display, and secondary copyrighted works, and by linking the aforementioned “E” to the site (and recording “E” as a secondary copyrighted work after the developer’s registration.

B. The lower court determined that the instant facts charged constituted a case where there is no proof of crime for the following reasons.

(1) Article 5(1) of the Copyright Act provides that a creative work produced by means of translation, arrangement, alteration, color, image, etc. of an original work (hereinafter referred to as “second-class work”) shall be protected as an independent work. In order to be protected as a second-class work, a new creative work shall be added by maintaining substantial similarity with an original work, while maintaining substantial similarity with that of the original work, and by making a modification, increase, or decrease to the extent that it can be a new work under social norms.

(2) According to the records duly adopted and examined by the lower court, the Defendant is called “E” Apppppp, hereinafter referred to as “E”, which is sought from a smartphone for aldrid, according to the health stand in the instant case (see, e.g., Supreme Court Decision 9Do863, Jan. 25, 2002).

B, the app was activated in smartphones, and is marked as a photograph of the restaurant.