Punishment for Copyright Infringement | Violation of the Copyright Act through Illegal Torrent Downloading Results in a 'Non-Referral' Decision

The client, who faced the risk of punishment for copyright infringement, received a request to appear from the police on suspicion of violating the Copyright Act in connection with having downloaded a particular movie file through a torrent program in the past.

The client had no intention of using or distributing the file commercially, was not even clearly aware of the exact time of the download or whether the file had been shared, and was entirely unaware that copyright infringement could develop into a criminal matter.

However, the investigative agency identified the client as a suspect in the copyright infringement based on the IP records and torrent usage history submitted by the copyright holder and proceeded with its investigation, and the client requested legal assistance amid anxiety that the matter could potentially lead to criminal punishment.

The intellectual property rights specialist attorney first organized, on legal grounds, the extent to which the act of using a torrent constitutes copyright infringement.

The attorney emphasized that, although a torrent may, by its technical nature, involve uploading simultaneously with downloading, it cannot be definitively concluded that every user had the intent to infringe copyright or awareness of such infringement.

The intellectual property rights specialist attorney emphasized that there were no circumstances indicating that the client had used the file for a commercial purpose or had repeatedly shared numerous works.

In addition, the attorney systematically organized and submitted, through the investigation records and statements, the fact that the client was a first-time offender and that the use was a one-time occurrence.

The intellectual property rights specialist attorney closely reviewed whether the IP address, time records, and file hash values secured by the investigative agency were sufficient as evidence to directly prove the client's actual infringing act.

In particular, the attorney logically explained, based on grounds such as the distinction between access records and the actual act of sharing, that it was difficult to definitively conclude that the crime had been established.

Copyright refers to the exclusive right of use that a creator holds over creative works such as literature, music, video, film, and programs.

Copyright arises at the moment of creation, regardless of whether it is registered, and using a work without the permission of the rights holder may give rise to civil and criminal liability.

The types of acts that may be subject to punishment for copyright infringement are as follows.

In the event of a violation of the Copyright Act, imprisonment for up to 5 years or a fine of up to 50 million won is imposed, and where there is a commercial purpose or habitual conduct, a heavier punishment may be imposed.

However, the disposition varies greatly depending on the case, according to factors such as intent, the scope of the infringement, whether the person is a first-time offender, and whether a settlement has been reached.

Because a torrent is structured so that, at the same time as a file is downloaded, part of the file is transmitted to other users, even a simple download may constitute 'transmission' and become an issue as copyright infringement.

In particular, whether the user used the file despite being aware of this and whether sharing actually took place become the core issues of the investigation.

Arising from torrent use, copyright infringement is a crime requiring a complaint to prosecute, so the punishment process can proceed only if there is a complaint from the rights holder.

Therefore, at the early investigation stage, having the complaint withdrawn through a prompt settlement can also be an important response strategy.

In this process, the attorney provides practical assistance with the overall settlement procedure, from negotiating the settlement terms with the copyright holder to preparing the settlement agreement and submitting it to the investigative agency.

Drawing on its experience in defending against punishment for copyright infringement, the intellectual property rights specialist attorney at Daeryun Law Firm provides the following one-stop legal services.

• Preliminary assessment of whether copyright infringement applies
• Legal analysis of the structure of torrent use
• Accompaniment during the police investigation and establishment of a statement strategy
• Organization of materials on the absence of intent and commercial purpose
• Establishment of a strategy aimed at a non-referral or non-prosecution
• Handling of the settlement on the client's behalf and preparation of a strategy

In such a case, the 'early response' determines the result.

It is not uncommon for an act treated lightly to lead to the status of a criminal suspect.

If you have become the subject of an investigation for a copyright violation, accurately defining the scope of legal liability from the outset, through the assistance of an intellectual property rights specialist attorney, is the safest response.

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