207Gahap67109 Suspension of Infringement of Neighboring Rights

1. The ion media in a stock company;

2. A corporation: Before the redemption of a bond;

3. Boen Entertainment Co., Ltd.;

4. Domestic Family Network Corporation;

5. Nales community Co., Ltd.

6. Lito Co., Ltd.

7. Bogro Korea Ltd.

8. ASEAN ABC Co., Ltd.;

9. D. S. Entertainment Inc.;

10. Iron-type (Korean Compact with Cultural Salone).

11. Kim Jong-young (Korean DJ club);

12. Maternity (Mitterine);

13. The main sentence of a stock company (the former trade name: the stock company, the main sentence of a stock company).

14. Doluice Co., Ltd.;

15. Kim Min-young (Laz)

16. One number of Korea

17. The red interference;

18. Dud iron (Intel-, ampample-, ample-, etc.)

19. spring oil set forth in the Special Act on the Management of Land, Infrastructure and Transport;

20. Seoul Phonograms

21. Retainment of stock companies;

[Defendant-Appellant] Defendant 3

[Defendant, Appellant]

Media Art Distribution Co., Ltd. (trade name before the change: Roluacom.)

Attorney Soh-young et al., Counsel for the defendant-appellant

Attorney Park Jae-soo

March 19, 2008

April 23, 2008

1. The defendant shall not let users of the www. Spuna.com run or download the MP3 files containing each sound source listed in the separate sheet using the above program, WMA files, and Zip files containing the above sound source digital files.

2. The Defendant may not provide MP3 files, WMA files, and Zip files that compressed into the foregoing sound source digital files through the implementation of the aforesaid sculna program.

3. The plaintiffs' remaining claims are dismissed.

4. One-fourth of the costs of lawsuit shall be borne by the plaintiffs, and the remainder by the defendant.

Order 1 and the defendant distribute w. Spuna.com, or he distributes a watchout program, or the above prote.

MP3 files, WMA files, and sound source digital files through the implementation of the program;

No Zip file-sharing service may be provided.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the whole pleadings in the entries of Gap evidence Nos. 2, 3, 4-1 through 123, Gap evidence Nos. 5 through 9, and 11:

A. The Plaintiffs are producers of music records who have produced each music record recorded in the separate sheet, and have neighboring rights, such as reproduction, distribution, transmission, etc. of each music record recorded in the separate sheet, pursuant to Article 78, 79, and 81 of the Copyright Act.

B. On October 26, 2004, the Defendant: (a) was established with the trade name of “SELD Community” for the purpose of providing online information service; (b) was changed from January 5, 2006 to “Slua.”; (c) was a company whose trade name was changed to its name as of October 27, 2006; and (d) w. prunacom (hereinafter “the site of this case”) through P2P (pepeer) software to share music files in the form of MP3; and (c) provided services (hereinafter “the instant program”).

C. The method of using the instant service (1) is to install the instant program, which is accessible to the instant site and distributed free of charge by the Defendant, and input the ID, password, basic personal information, etc., and register as a member of the said site.

(2) During the process of registration as a member, other users can access their computer files and download them to the MP3 file (hereinafter “P3 files”. (In the event that users who installed the instant program have access to their computer files and have access to the PE3 files, the PE3 files that are stored at the Round Round and the Round Round Round Round Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod 2). (Although there is a difference between the users’ request for access to the Pod 1st Rod Rod Ro 2 another Rod Ro.

D. In addition to the Defendant, a number of companies, as well as the Defendant, provide a service that allows a large number of companies to download MP3 files in the P2P method. The Nonparty Co., Ltd., the largest number of members, who are members, discontinued free services for reasons of infringement of neighboring rights on November 7, 2005, and immediately thereafter, the number of users using the instant site increased rapidly, resulting in a rapid increase in the number of users using the instant site at least 690,000 the average number of visitors per day is at least 22 out of the total website.

E. As the Defendant secured a number of visitors, it appears that the Defendant would have earned a considerable amount of revenue through the sales of the distribution advertising, etc. In addition, the Defendant provided a flus service that can receive the top priority when paying the prescribed amount.

F. As of the total sales amount, the domestic music record market has maintained the growing rate of KRW 3,53 billion in 1998, KRW 380 billion in 1999, KRW 4,10.4 billion in 200, KRW 3,733 billion in 2001, KRW 2,86.1 billion in 2002, KRW 86.3 billion in 2003, and KRW 1,83.3 billion in 2003.

G. Music producers, including the plaintiffs, filed an application for provisional injunction against the prohibition of reproduction of music records with respect to the case against the defendant (i.e., Fluna, Inc., Ltd., the trade name before the change of the defendant), which was brought against the defendant (i.e., the defendant), on June 28, 2006, which was accepted under the condition of security offer on June 28, 2006. While the defendant raised an objection to the provisional injunction, the decision was dismissed as of September 12, 2006 by the Seoul High Court Order 2006Kahap2433, Sept. 12, 2006, and the defendant appealed, but the decision of August 22, 2007 by the Seoul High Court Order 2006Ra1354 was dismissed.

2. Determination

A. Determination as to whether neighboring rights are infringed

Article 123(1) of the Copyright Act provides that "the other party to the claim for the suspension of infringement shall be a person who infringes on the copyright or other rights protected by this Act." Even in aiding and abetting infringement, considering the content and nature of aiding and abetting act, the degree of management and control of the aided and abetting person, profits generated by the aided and abetting person, etc., the aiding and abetting act is closely related to the act of copyright infringement, and the aided and abetting person does not take any measures that are easy or should be taken, but where the aided and abetting person is aware of the act of copyright infringement but is able to remove the state of copyright infringement by suspending aiding and abetting act, the aided and abetting person concerned shall be deemed to fall under "the person who infringes on the copyright or other rights protected by this Act" (see Supreme Court Decision 2005Da11626, Jan. 25, 2007). Accordingly, according to the health care unit of the above case, and the above recognition facts,

(1) The infringement of the right of reproduction is an act of fixing the MP3 file, which is a reproduction of each sound source, connected to the computer of other users and stored by the user of the instant service on his own computer, and constitutes an act of infringing the right of reproduction of the plaintiffs. (2) If the infringement of the right of reproduction is caused by the user of the instant service to store or download the MP3 file of each sound source listed in the separate sheet to the downloader or download it to the downloader, the said MP3 file is stored in the jointly owned Pool and can be downloaded by the other users. Thus, it is an act of providing the other users to use it at the time and place of individual choice by the method of wire communication, and constitutes an act of infringing the right of transmission of the plaintiffs. (3) The defendant's responsibility for aiding and abetting the defendant

In light of the fact that the number of visitors to the site of this case is rapidly increasing as a result of the suspension of the services similar to the defendant, the rate of illegal files in the service of the above company, the rate of users' access to the site of this case by implementing the program of this case, and only access to the site of this case, the users can easily access the relevant files and freely download them. According to the establishment of the basic plan of the program of this case, multiple files downloaded to Round Round Round Round Round Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod Rod 3 file without any special personal relation for the common purpose of sharing MP3 files between the users, and it can be easily obtained from the users to use the program of this case Mad 3.

Therefore, it is reasonable to deem that the Defendant aided and abetted the act of infringement of neighboring rights by facilitating the infringement of neighboring rights by individual users through the distribution of the instant program and the provision of the instant service, and therefore, it is reasonable to deem that the Defendant constituted “a person who infringes on copyright and other rights protected by this Act” pursuant to the subject of infringement, and thus, the Plaintiffs have the right to seek the prohibition of infringement against the Defendant, barring special circumstances

B. The judgment on the Defendant’s assertion (1) as to the Defendant’s assertion (A) the Defendant, an online service provider, completed the best technical measures to prevent and block the infringement of users, such as the registration of gold (Prohibition of Search) and the provision of paid services to the users, etc., and concluded a contract with Dora Co., Ltd., a company specializing in pening, for a more advanced level than the present technology and concluded a contract for pening services with Dora, and is also preparing more strong technical measures to cut off the future, so the Defendant is exempted by the provision on limitation of liability of the online service provider under the Copyright Act.

(B) In light of the purport of Article 104(1) of the Copyright Act, the Defendant has already prevented the sharing of files by means of the registration in a closed language for the sound source-related files before the above provisional disposition is rendered, and such measures for the sound source-related files in the future are ultimately taken. Therefore, in light of the purport of Article 104(1) of the same Act, there is no benefit for the Plaintiffs to file the instant lawsuit, the Plaintiffs’ assertion demanding the Defendant to identify and block the sound source-related files, notwithstanding the fact that the Plaintiffs did not provide the Defendant with the information about the sound source-related files

(D) Unlike MP3 files and WMA files, in the case of a compressed file, other text files or image files in addition to the music files of the instant sound source among the compressed files may be included. Thus, as long as the Defendant, who is the online service provider, is unable to determine whether such Zip files are infringed on neighboring rights, it is excessive to extend the scope of restriction on the Zip file to the point of (a) determination on the application of the online service provider’s exemption provision.

Article 102(2) of the Copyright Act provides, "Where an online service provider has known that the reproduction or transmission of a work, etc. by another person is infringed on by the reproduction or transmission of a work, etc. by another person in connection with the provision of services related to the reproduction or transmission of a work, etc., and intended to prevent or block the reproduction or transmission concerned, but it is technically impossible, the responsibility of the online service provider for the infringement on the copyright by such other person and other rights protected under this Act shall be exempted."

According to the above facts, (1) the Defendant appears to have already known the fact that the right to reproduce and transmit music records including the Plaintiffs was infringed by the instant service; (2) the Defendant merely provided the function of promoting the infringement of neighboring rights by its users as seen earlier without simply allowing the use of the P2P server; (3) the part providing the function of promoting infringement of neighboring rights cannot be deemed as value neutrality unlike mere P2P services; and (2) the Defendant’s posting a warning notice on infringement of neighboring rights and a notice on the use of paid services to users and registration of regulations related to each sound source listed in the separate sheet cannot be seen as having substantial effect in preventing infringement of neighboring rights; and (4) it is difficult to view that the Defendant’s act of taking measures to prevent infringement of neighboring rights is difficult to search at least by simply changing the content of the instant service, and it is difficult to view that the Defendant’s technical measures, other than simple search methods, are not possible to request technical protection of the Plaintiff’s copyright rights to the extent that it did not constitute an infringement of neighboring rights.

In light of the fact that the Defendant cut off the download on March 8, 2006, the date prior to the above provisional disposition order, and the fact that the Defendant prevented the downloads of the files and Zip files with almost all types of persons with expansion of sound sources by expanding such measures thereafter, there is no dispute between the parties, and according to the records in the evidence Nos. 1 and 2, even if the search of the sound source-related files is separate from the search of the sound source-related files by the Defendant’s above measures, it is difficult to view that the Defendant took the above measures regardless of the above provisional disposition case, in light of the progress of the above provisional disposition case and the circumstances in which the Defendant took the above measures, etc., it is difficult to view that the above measures were taken by the Defendant, and if the above provisional disposition order becomes null and void, it cannot be viewed that the Defendant’s above measures cannot be viewed as a final measure, and thus, the Plaintiffs’ obligation to provide information about the source-related files does not exist.

In order to require the other party to perform his/her duties, the contractual, legal, and other cooking obligations should be premised, and since there is no contractual relationship between the plaintiffs and the defendant, who are the owners of the sound sources, it shall be examined as to whether it is possible to demand such performance under the law.

Article 104 (1) of the Copyright Act provides that "On-line service providers who mainly aim to transmit works, etc. by means of computers, etc. between other persons" shall take technical measures to block illegal transmission of the relevant works, etc. at the request of the holder of the right.

In such cases, necessary measures should be taken. In such cases, matters concerning the right holder's request and necessary measures are prescribed by Presidential Decree. Article 46 of the Enforcement Decree of the Copyright Act provides that "necessary measures, such as technical measures that block illegal transmission of the relevant work, etc." means all of the following measures: 1. Measures that can be recognized compared with the characteristics of the work, etc.; 2. Measures of search restriction and transmission restriction to block illegal transmission of the work, etc. known pursuant to subparagraph 1; 3. If the illegal sender of the relevant work, etc. can be identified, it is difficult to separately define the requirements of Article 104 of the Copyright Act as measures to prevent infringement of the right holder's right holder's right holder's right holder's right, and if P2P services such as the instant service do not constitute "special measures of online service provider's right holder's right holder's right infringement" as stated in Article 104 of the Copyright Act. However, it is difficult to say that there are more specific measures of online service provider's right infringement.

Therefore, the defendant's assertion that is premised on the above duty is without merit in this case where there is no circumstance to acknowledge the obligation to provide the plaintiffs with such information in the cooking.

(D) Part on restrictions on file sharing services on Zip files

According to the above facts, it is recognized that many Internet users have compresseded music files including the instant sound source using Zip files and carried out the crop and download. Therefore, if it does not limit the file sharing via Zip files, it would be difficult to effectively suspend the infringement of neighboring rights if it is limited to MP3 files or WMA files, it would be difficult to achieve the suspension of infringement of neighboring rights. As such, the Zip files against each sound source listed in the attached list should be inevitably prohibited for the protection of neighboring rights of the plaintiffs, this part of the defendant's assertion is rejected.

(3) Sub-decisions

According to the above facts, the plaintiffs can seek suspension of infringement of neighboring rights against the respondent pursuant to Article 123(1) of the Copyright Act. Thus, the defendant bears the duty not to have users of the service of this case receive MP3 files, WMA files, and Zpe files which combine the above sound source digital files recorded in the separate sheet where the plaintiffs own neighboring rights, and in light of the above facts, it is judged that the infringement of neighboring rights of the plaintiffs by the service of this case should be fundamentally prevented, and the defendant does not have the purpose of the business of the defendant, unlike the sound sea, which is the main purpose of music service or the original file distribution business, and there is no intention to conduct any business related to music, as long as the plaintiff did not reach an agreement with the copyright holder of the music source with the copyright holder of the music source, the defendant should not have the right to request suspension of infringement of the MMA files through MMA 3 as part of the prohibition of infringement of neighboring rights.

However, among the files shared through the instant service, it is reasonable to view that the Plaintiffs’ seek to prohibit the distribution of the instant program through the instant website to go beyond the scope of “necessary measures when claiming the suspension of infringement” under Article 123(2) of the Copyright Act, since the Plaintiffs’ seek to prohibit the distribution of the instant program against the Defendant, in light of the Defendant’s intent of establishment and operation and the fact that the prohibition of the distribution of the instant program itself appears to be too harsh in light of the fact that, in addition to the foregoing sound source files, such as the files, video, ethyl programs, etc., in the text of text format as well as the foregoing sound source files. Accordingly, the Plaintiffs’ assertion on this part is without merit.

3. Conclusion

Therefore, the plaintiffs' claims of this case are accepted within the scope of the above recognition, and the remaining claims are dismissed as they are without merit. It is so decided as per Disposition.

Within the presiding judge;

Judges Yoon Jinari

Judges Park Jong-woo

A person shall be appointed.