파일공유시스템과 저작권의 간접침해 및 기술의 발전 = File-sharing system, Indirect Infringement of Copyright and Innovation in Technology

다국어 초록 (Multilingual Abstract)

In the digital age, new technologies such as Napster, Grokster and Soribada allow their users to copy and distribute unlawful digital files. The advent of these file-sharing systems were the most significant threat to copyright owners like sound recording and music publishing industries. So they have brought suits against the distributors of file-sharing systems, alleging that they should be secondarily held liable for the direct copyright infringement by their users. The U.S. court in Napster held in favor of the plaintiffs, finding defendant Napster was contributory and vicariously liable for copyright infringement. Also in Grokster the U.S. supreme court held that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. The Korean court in Soribada held that the distributor of Soribada should be liable as an abettor prescribed by the article 760 of the Korean Civil Code. However, as seen in Sony`s VTR case, the new technologies with respect to the reproduction and distribution of copyrighted material can be used by the users in noninfringing ways, but they can also be used to infringe copyright. File-sharing systems can be used by their users in unlawful uses or lawful uses. It is understandable that the above courts have put a ban on the distribution of these systems because almost all files actually traded on these systems were illegal. However, the indirect liability theory that the courts have applied to the cases was too broad and ambiguous. A fear of potential liability would impede the development of creative and innovative products because virtually all technologies are capable of illegal uses by their users. In this regard, this article tried to propose the alternatives by limiting indirect liability for the acts of infringement by third parties under certain circumstances. Distributors of file-sharing systems are firstly required to prevent the illegal circulation of music files by technical measures like DRM. Also, the distributor take effort to prevent the illegal trade of music files by acquiring a license from copyright owners. If the distributor substantially prevents user`s illegal trade of music files through taking such steps, courts should be prohibited from issuing an injunction against the distribution itself of these systems on the ground that their ysers infringed copyright indirectly. Likewise, the distributor should be exempted from criminal liability for user`s infringing act. In conclusion, like Sony`s VTR, if file-sharing system also has substantial legal uses by adopting technical measures on their systems, indirect liability should be limited as mentioned above. If this appropriate standard is in place, developers of file-sharing systems, copyright owners and users can have a mutually beneficial relationship.