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IP Newsletter | Spring/Summer 2019
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TRADEMARK, DESIGN, COPYRIGHT & UNFAIR COMPETITION
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Supreme Court Rejects Expanded Liability of Online Service Providers for Copyright Infringement
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On February 28, 2019, the Korean Supreme Court issued a notable ruling regarding the liability of online service providers (OSPs) for aiding and abetting in the infringement of a copyright (Case No. 2016 da 271608).
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In this case, members of the Korean internet portal Daum had uploaded instructional billiards videos onto their membership-based Daum website and allowed general users to play the clips without permission from the plaintiff copyright owner, thereby committing copyright infringement. The copyright owner asked Kakao Corp. ("Kakao"), who operates the Daum internet portal, to take down the infringing content by identifying the location of some of the infringing videos and then providing search terms which it claimed Kakao could use to identify the remaining content to be taken down. However, while Kakao did take down the infringing videos specifically identified by the copyright owner, it refused to comply with the copyright owner's request to search webpages on its portal for other potentially infringing videos.
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The copyright owner then sued Kakao for aiding and abetting copyright infringement. Contrary to the first instance trial, the appellate court held that Kakao was indeed liable for aiding and abetting the copyright infringement by the members of its portal, and ordered Kakao to pay compensatory damages to the plaintiff.
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On appeal, the Supreme Court overturned the appellate court's ruling, and reaffirmed the existing legal theory that an OSP does not have a duty to delete infringing content and block similar content from being posted on its websites unless a request is received from an infringed party to delete and block the infringing content, and it would be technically and financially infeasible for the OSP to manage and control the web postings. Moreover, the Supreme Court ruled that Kakao should not be held liable for aiding and abetting the copyright infringement for the following reasons.
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The Supreme Court essentially held that the plaintiff had failed to provide sufficient information to Kakao to identify and confirm infringing videos despite repeated requests from Kakao for such identifying information. The Supreme Court judged that simply providing search terms was insufficient to create a duty on Kakao's part to respond. Furthermore, the Supreme Court's refusal to impose liability on Kakao appears to have been largely on the basis that it would be technically and financially infeasible for OSPs such as Kakao to manage and control web postings on a general basis. The Court pointed out that to verify the suspected videos for copyright infringement, they would have to be played at least partially, but identifying and deleting the infringing content by doing so would be costly and technically difficult for Kakao, considering the size of its Internet portal (it is one of the two most popular portals in Korea), the number of infringement reports Kakao receives, the number of uploaded videos on its portal, and the streaming time. While there exists a "characteristic-based filtering technique" (a technology utilizing the unique characteristics of the original copyrighted files) to recognize and block the infringing content, this requires the original video files which the plaintiff did not provide.
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Based on the Supreme Court's ruling in this case, copyright owners seeking to force OSPs, particularly larger ones, to delete copyright-infringing content from their websites should assume they will need to specifically identify all content they believe is infringing, or provide as much information as is reasonably possible to enable the OSPs to easily locate and delete/block the infringing content, before expecting the OSPs to comply.
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For more information, please visit our website: www.ip.kimchang.com
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