Can posting links to infringing videos count as aiding a public communication right infringement? Supreme Court Decision 2017Do19025 on 'commercial and continuous' linking

Question

The decision raises the question what makes one person an accomplice to another's infringement of the right of public communication, where the act said to be complicity is posting a link. A link points to the web location or path of a work stored on someone else's server, and an internet user who clicks it goes straight to that work. The question is whether setting such a link is itself the act the offence requires, or the aiding of that act by the person who uploaded the work.

Decision 2017Do19025 answers it for a defendant who ran a so-called 'catch-up' link site. Unknown persons uploaded films, dramas and entertainment programmes to an overseas video sharing site without the copyright owner's permission and left them posted. Between 25 July 2015 and 24 November 2015 the defendant, knowing this, posted 450 links to those videos on a site he opened and ran for advertising revenue, sorting the links by type and offering a search function. He was charged with aiding the transmission right infringement for profit or habitually. The first-instance judgment acquitted him, the court below upheld that judgment, and the prosecutor appealed.

Material to check

The decision applies the Copyright Act as it stood before the amendment of 22 March 2016 (Act No. 14083): Articles 2(7), 2(10), 2(32), 10(1), 18 and 136(1)(i). Those are former versions and their content is not stated here. The decision's reasons also refer to the permission of the copyright owner under Article 46, to the proviso to Article 140(i) on when a complaint is needed, and quote Article 32(1) of the Criminal Act, which punishes a person who aids another's crime as an accomplice. In the decision's own account, the concept of 'public communication' was created by the complete amendment of the Copyright Act by Act No. 8101 of 28 December 2006, and the word 'transmission' used in the charge corresponds to the 'right of public communication' in the current Act.

The decisions read are the three the decision cites on links. Decision 2008Da77405 (26 November 2009) held that a so-called deep or direct link is only the web location or path of the work, and so is neither reproduction nor transmission under the Copyright Act as it stood before 28 December 2006. Decision 2009Da4343 (11 March 2010) held the same for links generally, and added when an online service provider running a portal can be liable as an accomplice by omission for an infringing post on its bulletin space. Decision 2012Do13748 (12 March 2015) held that such a link alone cannot be an act of aiding a copyright infringement, because it does not facilitate the infringement itself; the decision changes that holding to the extent set out below.

Possible readings

The decision keeps the first part of the earlier case law. A link does no more than show the web location or path of the works stored on the server of the page or site linked to. Even though clicking the link takes the user straight to the infringing post, the party that transmits the connected information is the one that uploads it to the website server and offers it for public use, not the person who sets the link. A link is only an instruction or preparatory step for requesting transmission, or a passage to the work, so setting one is not 'transmission' and no infringement of the right of public communication arises from it. The decision holds this settled law to be sound.

The decision then reads the general law of accomplice liability as reaching a further step. Where the principal uploads an infringing post and makes it available for access at times and places individually chosen by members of the public, the offence is complete even without any actual transmission to the public; but so long as the principal does not withdraw the post by deleting it from the server, the punishable unlawful act of making it available keeps recurring and the crime is not finished, so that crime can be the object of aiding. Aiding, as the decision puts it citing earlier judgments, is support that makes the principal's act possible, promoted or easy, or that strengthens or increases the infringement of the protected interest before the principal's crime ends, provided it is closely connected with the realisation of the crime.

The decision also sets the limits, and reads them strictly because of the link's own social function in the free circulation of information and freedom of expression. Where the linker fully knows the principal is infringing the right of public communication and posts links to the infringing posts on a site for profit and continuously, so that members of the public can easily reach the posts at times and places of their own choosing, the aid is closely connected with the principal's crime and realistically increases the chance of the result, and the intent of an accomplice and the principal's intent can both be found. But no aiding arises where the actor does not clearly recognise that the target is an infringing post, and it may fail where the links are not provided for profit and continuously, so that intent or causation is negated, or where the conduct is socially adequate seen from the legal order as a whole. The prosecution must strictly prove the awareness of unlawfulness.

What the decisions held

Decision 2017Do19025 (9 September 2021), given by the full bench, held that the earlier view, in Decision 2012Do13748 and the like, that linking to a webpage infringing the right of public communication can in no case be an act of aiding, had to be reconsidered and was changed to the extent it conflicted with the decision's view. A link is still not a transmission, so the direct infringement does not lie; the change concerns only complicity. The judgment set aside the judgment of the Seoul Central District Court given on 3 November 2017 and remanded the case to a collegiate bench of that court, holding that the court below had misunderstood the law on aiding a public communication right infringement in acquitting.

On the facts found by the court below, the unknown persons uploaded the videos without permission and left them posted; until they removed them, the crime of making the works available at times and places individually chosen by the public was not finished. During that period the defendant, fully aware of the infringement, posted 450 links on his site, whose users could readily reach the videos through them; the site was run continuously for advertising revenue, with links sorted by category and a search function. The decision held that those acts were of a degree that made the unknown persons' crime easy, so an accomplice liability could arise, and that since the defendant aided the infringement for profit or habitually, no complaint was required under the proviso to Article 140(i) of the Copyright Act and the prosecution was properly brought. It decided only that question of law and left the finding of guilt to the court on remand.

Justices Cho Jae-yeon, Kim Sun-su and Noh Tae-ak dissented. In their view the majority expanded the Criminal Act concept of aiding and the causation between the link and the principal's crime, bringing criminal punishment to excess; confining the new rule to 'commercial and continuous' linking conflicts with the general law of accomplice liability, subordination and concurrence of offences, and forces courts to define requirements case by case, unsettling legality and predictability; and the change should rather await legislation, since the accused acted only about four months after Decision 2012Do13748, which makes the ruling effectively retroactive. They added that after the upload, the transmission runs mechanically from the file already stored, so the link does not facilitate the execution itself, and that the foreign cases the majority cited were civil damages claims. Justices Kim Jae-hyung and Cheon Da-yeop wrote supplementary opinions on the majority opinion, and each of the three dissenters wrote a supplementary opinion on the dissent.

Points left open

The decision fixes a set of conditions but not their exact reach. It does not say how many links, or over what period, make linking 'commercial and continuous', nor whether a single link, a bare publication of a URL, or the search function of a portal site could meet the standard. The dissent states that the majority's criteria leave open the possibility that every provision of a link to an infringing post falls within complicity, and that profit and repetition do not logically change the causal relation.

The decision does not decide the defendant's guilt on remand: it sets aside the acquittal and orders a fresh hearing. It also leaves unanswered the dissent's objection that punishing conduct the Court had held not to be a crime, without a change in legislation, conflicts with the prohibition of retroactive punishment and with legal stability, and its point that the foreign authorities were civil cases while no comparable criminal legislation exists.

When to reconsider

This brief changes if the judgment on remand decides the defendant's guilt, if a later Supreme Court decision defines what counts as 'commercial and continuous' linking or extends the rule to bare URL publication or search services, or if the Copyright Act or the Criminal Act is amended to deal with link sites, as the dissent urged.

Statutes referred to

• 구 저작권법 제2조, 제10조, 제18조, 제136조

Decisions referred to

• 대법원 2021. 9. 9. 선고 2017도19025 전원합의체 판결 · Decision ledger
• 대법원 2009. 11. 26. 선고 2008다77405 판결
• 대법원 2010. 3. 11. 선고 2009다4343 판결
• 대법원 2015. 3. 12. 선고 2012도13748 판결

Verification status

The texts read for this brief were all read at the National Law Information Center on 24 October 2026: the decision in its published holdings, summary and reasons, the cited articles as published in their cited form, and the three cited decisions in their published holdings and summaries. The articles of the Copyright Act are cited as the version before the amendment of 22 March 2016, so their content is left unstated here.