Aiding and Abetting Violation of the Copyright Act. 2017Do19025 Decided September 9, 2021
[1] Even if an act of posting a link to a posting, infringing on the right of public transmission, a web page, on which the posting is located, etc. (hereinafter “infringing posting, etc.”) is committed, the infringement on the right of interactive transmission is not constituted as such act does not correspond to “interactive transmission (public transmission),” which is a constituent element of an act of infringing on the right of interactive transmission (the right of public transmission), which is the established precedent of the Supreme Court. A link merely refers to the data regarding the location, or a route, of an individual work, etc. stored on a server of a web page, website, etc. connected by such link on the Internet.
Even if an Internet user is directly connected to the infringing posting, etc. by clicking on the link, the principal agent, transmitting the data which is subject to such connection, is a person, who provides the data to make the data available for the public by uploading the data on the server of the Internet website, not a person who sets up a link to such data. A link is merely an act of preparing for the instruction or request for transmission of a work, etc. or a route connected to the corresponding work and an act of establishing a link is not included in transmission. Therefore, the above precedent regarding the infringement of the right of interactive transmission (the right of public transmission) is reasonable.
[2] (A) The previous precedents regarding aiding and abetting the infringement on the public transmission right has developed the legal doctrine that an act of setting up a link alone cannot be seen to correspond to an act of aiding and abetting the infringement on the public transmission right on the grounds that even if an Internet user is directly connected to a web page which infringes on the author’s right of public transmission, etc. by clicking on the link, an act of setting up the link “cannot be seen to facilitate the commission itself of an act of infringing on the right of public transmission.”
A link has a unique significance and social function such as activating the free circulation of the data through the Internet space and realizing the freedom of expression. Readily concluding that even an act of setting up a link usually done in the process of using the Internet, etc. corresponds to aiding and abetting the infringement on the public transmission right may excessively dispirit the freedom of expression and the general freedom of action in the Internet space and thus is undesirable.
However, the previous precedents that an act of setting up a link, in any circumstances, does not correspond to an act of aiding and abetting the infringement on the public transmission right needs to be reexamined in light of the general legal doctrine, etc. regarding the constitution of the crime of aiding and abetting. This is a different matter from viewing that an act of setting up a link should not be readily concluded as aiding and abetting the infringement on the public transmission right.
(B) If a principal offender makes the postings available for the public so that the members of the public may have access to the postings at the time and place of their own choice by uploading the infringing postings on the server of the Internet website, even if the infringing postings are not actually transmitted to the public, the infringement on the public transmission right becomes consummated. However, if the principal offender does not unpublish the postings by deleting the infringed postings from the server, as a punishable offence of making the infringing postings available for the public so that the members of the public may have access at the time and place of their own choice is constantly repeated and thus a criminal act of infringing on the public transmission right is not terminated, such criminal act committed by the principal offender may be subject to aiding and abetting.
(C) As is the case where a website, providing links to the copyright-infringing postings, posts links to the infringing postings, where a person who posts a link committed an act of posting the links to the extent that the members of the public may have easy access to the infringing postings at the time and place of their own choice by commercially and continuously posting the links to such infringing postings on the Internet websites even though he/she is fully aware of the fact that the principal offender infringes on the right of public transmission, the principal offender’s crime of making the infringing postings available for the public is facilitated, and thus aiding and abetting the infringement on the public transmission right is constituted. Such act of posting a link can be seen to be closely related to the realization of a crime by the principal offender, making the infringing postings available for the public, before the principal offender’s criminal act is terminated, facilitate the commission of the crime by the principal offender by practically increasing the opportunities which can lead to the results corresponding to the constituent elements of the crime, and reinforce and increase the infringement on legal interests such as the right of public transmission. The intention of a principal offender as well as the intention of aiding and abetting can be recognized with respect to a person who posts a link.
(D) As is the case where a website, providing links to the copyright-infringing postings, posts links to the infringing postings, an act of posting a link is closely related to the infringement on the public transmission right depending on the intention or type thereof, and thus the liability for aiding and abetting the commission of such crime can be seen to be vested in the person who posts the links. In such a case, the social significance inherent in the link as a means for smooth information exchange and distribution on the Internet is just nominal. However, where the person who posts the links is not fully aware that the infringing postings, etc. are subject to the links, aiding and abetting is not constituted, and where the causal relationship between the intention of a person who aids and abets the commission of a crime by another person or an act of posting a link and the realization of a crime committed by a principal offender can be denied or social responsibility can be seen to be met from the perspective of the whole of law and order as is the case of being below the level of commercially and continuously providing the links to the infringing postings, etc., aiding and abetting the infringement on the public transmission right may not be constituted.
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