[1] Where an aiding and abetting act such as copyright falls under “a person who infringes on copyright or other rights protected under this Act” as provided by Article 91(1) of the Copyright Act

[2] The case holding that where a service is rendered that facilitates the sharing of MP3 files, such as free circulation of a program that enables the sharing of MP3 files through an Internet site, the service provider constitutes "a person who infringes on copyright or other rights protected by this Act" under Article 91 (1) of the Copyright Act, since the service provider facilitates infringement of neighboring rights by individual users, thereby aiding and abetting the infringement of neighboring rights by facilitating the infringement of neighboring rights by individual users

[3] The case holding that the exemption provision of an online service provider under Article 77 (2) of the Copyright Act does not apply since the measures to prevent users from infringing neighboring rights cannot be deemed as impossible

[1] Article 91(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 copyright or other rights protected under 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 relevant copyright infringement, and the aided and abetting person did not take any measures that should be taken easily or ought to be taken, while recognizing that the aided and abetting person is closely related to the relevant copyright infringement, and where it is possible to remove the state of copyright infringement by suspending aiding and abetting act, the aided and abetting

[2] The case holding that where a service is rendered that facilitates the sharing of MP3 files, such as free circulation of a program that enables the sharing of MP3 files through an Internet site, the service provider constitutes "a person who infringes on copyright or other rights protected under this Act" under Article 91 (1) of the Copyright Act, since the service provider facilitates infringement of neighboring rights by individual users, thereby aiding and abetting the infringement of neighboring rights by individual users

[3] The case holding that since measures to prevent users from infringing neighboring rights are not impossible, the exemption provisions of online service providers under Article 77 (2) of the Copyright Act do not apply

[1] Article 91(1) of the Copyright Act / [2] Articles 61 and 91(1) of the Copyright Act / [3] Article 77(2) of the Copyright Act

The Korea Music Producers Association, an incorporated association (Law Firm Cheongi, Attorney Cheong-hee, Counsel for the plaintiff-appellant)

Respondent Co., Ltd. (Attorney Han-chul et al., Counsel for the defendant-appellant)

1. Subject to the condition that the applicant deposits KRW 1,000,000 (1,00,000) as a guarantee for the respondent or submits a payment guarantee consignment contract document with the above amount as the insured amount:

(a) The respondent shall not allow users of the dusta program provided in (Internet Address omitted) to run or download MP3 files containing each sound source listed in the separate sheet using the program.

(b) through (Internet Address omitted) the respondent may not distribute the Round Program listed in paragraph 1 or provide MP3 files sharing services through the implementation of the aforesaid Round Program.

(c) The enforcement officer shall publicly notify the purport of each of the above orders in an appropriate manner.

2. The applicant's remaining requests are dismissed.

3. Litigation costs shall be borne by the respondent;

Decisions as referred to in paragraph (1) of this Article and indirect compulsory enforcement in preparation for breach of such obligation

1. Basic facts

According to the records, the following facts are proved:

A. The applicant, under Article 78(1) of the Copyright Act, is an incorporated association that has obtained permission for the trust management business of neighboring rights from producers of phonograms on March 17, 2003, and manages neighboring rights as to each sound source listed in the attached Table (hereinafter “the sound source of this case”).

B. On October 26, 2004, the respondent distributed a “P2P type of music files” program (hereinafter “instant program”) through the Internet site (hereinafter “instant site”) of the respondent, “P3 type,” which was established for the purpose of online information provision business on October 26, 2004, and provides services to enable users who installed on a personal computer with the said program to exchange music files (hereinafter “instant service”).

C. Method of using the instant service

(1) The instant program, which is linked to the instant site and distributed free of charge by the respondent, shall be set up, and entered into the ID, password, basic personal information, etc., and registered as a member of the instant site.

(2) During the process of registration as a member, “Round Round” was designated to store “Co-owned Pool” and “Round Round” in which other users may access their own computer and download MP3 files. According to the establishment of the basic program of this case, the Round and the co-owned Pound are consistent with the Round. Thus, as long as the users do not change separately, the Pound Pound Pound Pound MaP3 file is placed in a state in which other users can download at the same time (i.e., it does not require separate transmission; hereinafter referred to as “Round Pound”).

(3) If a user who installed the instant program implements the program, first of all, the log screen is shown, and if he completes the log by inputting his ID and password, he connects it to the instant website at the same time, and connects it to a server with a large number of files and connects, and automatically transmits other users’ connection information connected to the connected P2P call server to the user’s computer.

(4) If the user enters any such optional terms as singing title or virtual name into the search hold of the instant site and requests for search, the instant program shall be sent to the user’s computer via the user’s IP address provided by P2P host hostrs to the other user’s computer network information that is consistent with the searched language from the other user’s computer hard disc.

(5) The instant program by the user requesting search demonstrates a list of search results indicating the file name, singing title, number of files, file size, sound, singing time, speed, etc. by reconcing other users’ response information. Through automatic display function, the list of search results may be displayed in such a way as to speed, size, sound quality, etc.

(6) If a user requesting search selects a MP3 file that wants to be downloaded out of the list as a result of the above search, the user’s computer is to store the relevant file located in the user’s computer where the file is kept using the user’s IP address provided by P2P hostr and 1:1 directly connected to the file custodian’s computer to the user’s computer where the file is jointly owned, and to the downloader (hereinafter referred to as “divers”).

D. A number of companies, other than the respondent, provide a service that allows multiple companies to download MP3 files in the P2P method with oil and free fee, and sound sea companies, other than the respondent, have the largest number of members. On November 7, 2005, a free service was suspended for reasons of infringement of neighboring rights, etc., and immediately thereafter, the number of users using the instant site increased rapidly, and the average number of visitors per day is 690,000,000 won out of the total website.

E. The respondent seems to have earned a considerable amount of profits through the sales of the distribution advertisement with securing a large number of visitors, and in addition, the respondent provides a flus service that can receive a set of money with the top priority when paying it.

F. The scale of the domestic music record market has maintained the growth rate of KRW 380 billion in 1998, KRW 380 billion in 1999, KRW 410.4 billion in 2000 on the basis of the total turnover, but thereafter, the scale of the domestic music record market has been significantly reduced as KRW 373.3 billion in 2001, KRW 286.1 billion in 2002, KRW 18.3 billion in 2003, and KRW 18.3 billion in 2003.

2. Summary of the parties' arguments

A. Summary of the applicant's assertion

The respondent asserts that neighboring rights, such as the right of reproduction and transmission, are infringed upon as the sound sources of this case are downloaded and downloaded between the service users of this case without permission, and that the respondent seeks to suspend the infringement against the respondent who is the aided.

B. Summary of the respondent's assertion

(1) The instant service merely provides convenience for the use of P2P host servers, and thus cannot be deemed as aiding and abetting users to exchange illegal files.

(2) The respondent, who is an online service provider, completed the best technical measures to prevent and block the infringement of users, and the means other than those exist, is exempted by the limitation on liability of the online service provider under the Copyright Act.

3. Determination

A. Whether neighboring rights are infringed [Judgment as to the applicant's and respondent's claim 2-1 (1)];

(1) Article 91(1) of the Copyright Act provides that “a person who infringes on copyright or other rights protected under this Act” shall be construed as “a person who aids and abets an infringement.” Even in a case where aiding and abetting an infringement, taking into account the content and nature of aiding and abetting act, the degree of management and control by an aided and abetting person, benefits arising from an aided and abetting person, etc., the aiding and abetting act is closely related to the relevant copyright infringement, and the aiding and abetting person did not take prohibited measures to facilitate or conduct such act while aware of the infringement, and where it is possible to remove the state of copyright infringement by suspending aiding and abetting act, the relevant aided and abetting person shall be deemed to fall under “a person

(2) However, the record reveals the following facts and circumstances.

① The act of a user of the instant service by accessing another user’s computer and storing MP3 files, a reproduction of the instant sound source, in one’s own computer, constitutes an act of fixing sound on tangible objects and infringing the applicant’s right of reproduction.

② If the instant service users store or download the instant MP3 files on the Round Round Round, the said MP3 files are stored in the co-owned Pool and are placed in a state where other users can download, so it constitutes an act of infringing the applicant’s right of transmission, since it is offered for other users to use the MP3 files at the time and place of individual choice by the method of wire communications.

③ ㉮ 신청외 주식회사 소리바다가 피신청인과 유사한 서비스를 중단하자 이 사건 사이트의 방문자 수가 급증한 점 및 위 신청외 회사의 서비스에서 불법파일이 차지하던 비율, ㉯ 이 사건 사이트에서 제공하는 검색 기능(노래 제목 및 가수 이름 등을 통한 검색)으로 개인적인 창작곡 등 저작권 침해의 여지가 없는 파일을 찾기 어려운 점, ㉰ 이용자가 이 사건 프로그램을 실행하여 이 사건 사이트에 접속하기만 하면 다른 이용자들의 해당 파일에 손쉽게 접근하여 자유롭게 다운로드받을 수 있는 상태에 놓이는 점, ㉱ 이 사건 프로그램의 기본설정에 의하면 다운로드 폴더는 공유 폴더와 일치하도록 되어 있으므로 원칙적으로 다운로드 폴더로 다운로드된 MP3 파일은 그 즉시 다른 이용자들이 다운로드받을 수 있게 되는 점, ㉲ 이용자들 사이에는 MP3 파일을 공유한다는 공통의 목적 외에 별다른 인적 유대관계가 없는 점, ㉳ 이용자들이 적법하게 제작된 CD에 수록된 음원과 거의 동일한 음질을 갖는 MP3 파일을 무료로 용이하게 취득할 수 있는 점 등에 비추어 보면, 이 사건 서비스는 음반제작자들의 저작인접권을 침해하는 불법적인 MP3 파일 교환을 위한 공간으로 기능하고 있다고 보인다.

④ ㉠ 피신청인이 MP3 파일 교환을 위한 필수적인 수단인 이 사건 프로그램을 무료로 배포하고 있는 점, ㉡ 이 사건 프로그램을 설치한 이용자들이 이를 실행하는 과정에서 이 사건 사이트에 로그인하고 그 검색창을 통해 음원을 검색하게 되는 점, ㉢ 이용자가 검색한 MP3 파일 중 다운로드 속도가 빠르면서도 음질이 양호한 것을 선택할 수 있도록 지원하는 정렬 기능, 다운로드 중에 실시간으로 해당 파일을 들어 볼 수 있는 기능 등 이용자들의 MP3 파일 다운로드를 촉진시키는 다양한 기능이 제공되고 있는 점, ㉣ 피신청인은 소정의 금원을 납부한 이용자들에게는 다운로드시 편의를 제공하는 서비스도 실시하고 있고 이를 통하여 경제적 이익을 얻고 있다고 보이는 점 등에 비추어 보면, 피신청인은 단순히 파일교환을 위한 편의를 제공하는데 그치지 않고 이 사건 프로그램을 통한 MP3 파일의 교환 과정에 깊이 관여하고 있다고 하겠다.

(3) According to the above (2), the respondent facilitates the infringement of neighboring rights by individual users through the distribution of the instant program and the provision of the instant service, thereby aiding and abetting the infringement of neighboring rights by individual users, and thus, corresponding to the subject of the infringement, the respondent constitutes “a person who infringes on copyright and other rights protected by this Act” as the subject of the infringement. Thus, the applicant has the right to be preserved against the respondent to seek a prohibition of the infringement, barring any special circumstances. In light of the number of site visitors and the applicant’s damages, etc. which can be inferred by this, the necessity of preserving the issuance of the provisional disposition order can also be explained.

B. Whether the online service provider applies the exemption provision [Judgment on the argument of the respondent 2-2-2]

Article 77(2) of the Copyright Act provides that “On-line service providers shall be exempt from the responsibility of online service providers for infringement on copyright by other persons and other rights protected by this Act, with the knowledge that the reproduction or transmission of works, etc. by other persons is infringed upon by the reproduction or transmission of the works, etc. by other persons in connection with the provision of services related to the reproduction or transmission.”

However, according to the records, (a) the respondent seems to have already been aware of the fact that the right of reproduction and transmission of music record producers including the applicant for the instant service was infringed, (b) the respondent posted a warning on the infringement of neighboring rights against the users, and the registration of the gold language related to the instant music source alone cannot be deemed to have a substantial effect on preventing infringement of neighboring rights; (c) DNAR management in various forms, including music awareness technology, other than a simple method of search and restriction; (d) it is difficult to view that the respondent is unable to effectively protect copyright due to the development of technology; (d) it is difficult to prevent the unauthorized use of digital contents without permission; (d) the applicant has requested such technical measures; and (d) the respondent has to be exempted only if it is impossible to take technical measures without consideration of costs and difficulty incurred in taking technical measures under the Copyright Act; and (d) the respondent has a duty to verify the optimal technology among various forms of DNA technologies and to implement such measures, and the respondent's exemption from liability is not accepted.

3. Conclusion

Therefore, the application of this case is justified, and the part seeking the issuance of an indirect compulsory performance order in preparation for the breach of duty is deemed to achieve the main purpose of the application of this case due to the issuance of the provisional disposition indicated in the order, and if there is a breach of duty in the future, an appropriate indirect compulsory performance order may be issued in accordance with the mode of the violation of duty through separate procedures. Thus, it shall be dismissed.

Judges Song Jin-jin (Presiding Judge)