ISP에 의한 著作權侵害者의 身上情報開示制度

Abstract

From the perspective of comparative law, a subpoena to identify the copyright infringers under Digital Millenium Copyright Act (hereinafter referred to as "DMCA") in America is often compared to order to introduce documentary evidence in civil law countries. However, the former is totally different form the latter because the latter can be used only when a lawsuit is pending. In addition to that, the difference between two legal device results from the fact that, without identification of parties to a lawsuit, the plaintiff could not bring the lawsuit in Korea. It is because, unlike Korean legal system, American legal system permits a plaintiff to bring a lawsuit against (an) unidentified defendant(s)-i.e., John Doe or Jane Doe lawsuit. Hence, the subpoena to identify the copyright infringers under DMCA can not be incorporated into Korean legal regime. As a corollary, Korean legal community need to turn its attention to Japanese legal framework for allowing an internet service provider to disclose identity of copyright infringers. This Article criticizes Japanese legal regime on basis of several reasons, including a violation of due process. Afterwards, this article emphasizes the fact that John Doe (or Jane Doe) lawsuit is impermissible because a person is not allowed to bring a lawsuit against (an) unidentified defendant(s).