In case centering on links to offshore unauthorized file-sharing sites, court holds that act of posting such links – with sufficient knowledge and impact – can constitute aiding and abetting infringement of public transmission rights.
Decision represents change of course from 2015 precedent that excluded complicity for posting such links; comes amid prevalent criticism of the ready local access to unlawful offshore downloads.
The Korean Supreme Court has ruled that the act of posting a link to unlawful file-share resources can itself constitute copyright infringement. In the decision issued on September 9, 2021, the court ruled that, where a person posts on the internet a link to webpages containing material that violates copyrights, this act of posting a link can itself constitute complicity in infringement of the rights of public transmission in the copyrighted content, if the person, in posting the links, (i) does so for profit and in a continual manner, (ii) is sufficiently aware that the linked materials violate copyrights, and (iii) facilitates general access (by “members of the public”) to the infringing content.
The decision would seem to have implications, direct and indirect, for a variety of entertainment, news and other content-sharing services and platforms. This is although the case before the court involved somewhat special circumstances: a website designed to offer easy search for free downloads of usually copyrighted videos. The Korean defendant set up a “Watch Again Links” site, posting links to infringing video content that were uploaded, at offshore video sharing websites, by “unidentified persons” (who constituted the main offenders).
In the court’s reasoning, if the posting of such links enabled “members of the public” to access copyright-infringing content that they would not otherwise have found, thus facilitating the offering of such content by the main offenders, and so augmented infringements of underlying public transmission rights, that act of posting links can be classed as falling within the criminal offense of aiding and abetting the infringements. (Procedurally, the Supreme Court remanded the case to the intermediate court, which had ruled the defendant not guilty of infringement.)
The court underlined certain constraints, out of concern for possible chilling effect on free speech: Culpable complicity on this basis may be found only if the posting user was “clearly” cognizant of the unlawfulness of the linked content and, further, the act of posting the link actually contributed to the main offenders’ execution of their infringement.
The decision supplies a potential predicate for damages and injunctive actions against Korean parties, in an area of copyright infringement that is largely reliant on offshore servers and, for that reason, has been largely resistant to local enforcement.
The situation till now, widely criticized for the easy access to unlawful offshore downloads, is partly attributable to the Supreme Court’s own precedent from 2015, which held that just posting a link could not be seen as aiding the commission, as such, of infringements of public transmission rights or other elements of copyright. The court has now veered sharply from – or reversed – that precedent. Its latest decision imposes “mens rea” and other conditions on culpability, but is clearly an important step toward enabling copyright remedies in relation to one of the pervasive modes of infringement on the internet.