온라인서비스제공자에 대한 책임제한 조항의 성격 및 요건(대상판결: 대법원 2013. 9. 26. 선고 2011도1435 판결)

Abstract

In relation to the obligation of online service providers providing web storage service (webhard service) etc., the former Copyright Act (amended by Act No. 8852, Feb. 29, 2008) provided that the provider's obligation is reduced or exempted under certain circumstances. Specifically, Article 102(1) of the former Copyright Act provides that “in a case where an online service provider prevented or halted a copy and transfer service upon realizing that the copied or transferred content's copyright is infringed by another person copying or transferring the content, the service provider's obligation regarding copyright infringement by another person is reduced or exempted.” Article 102(2) of the same Act provides that “in a case where an online service provider providing copy and transfer service for copyright content realized that a content's copyright was infringed by another person copying or transferring the content, and attempted to prevent or halt the process but failed to do so due to technical impossibilities, the service provider's obligation regarding copyright infringement by another person should be exempted.” The issue here is whether the aforementioned exemption Articles are applicable to not just civil obligation but also criminal obligation, and the subject case was the first to explicitly announce that the exemptions are applicable to criminal obligation as well. The subject case clarified two points regarding conditions for exemption. Firstly, while Article 103(5) of the former Copyright Act requires “immediate” suspension upon request for suspension against copyright infringement, etc., Article 102(1) does not have such provisions. However, since immediate suspension is required even when the copyright infringement came into light through the copyright owner's request, the subject case determined that “immediate” measure of suspension is required when the provider itself became aware of the infringement as in Article 102(1). Secondly, “technical impossibility” as provided by Article 102(2) of the former Copyright Act was defined as a case where it is impossible for an online service provider to distinguish and halt the copyright infringement portion of its users' activities. Regarding the standard for determining technical impossibility, individual determination of each case depending on the development of related technology is more appropriate than announcing certain technologies as the general standard. All exemption Articles of the former Copyright Act were amended on Jun. 30, 2011; the wordings on Article 102(1) and (2) were amended as “do not take responsibility” while Article 103(5) was amended as “obligation is exempted.” IT will be interesting to examine how the purpose of the subject case will be applied to similar cases under the amended Copyright Act.