파일 호스팅 서비스의 DMCA 제 512(c)와 저작권법 102조 면책항들에 관한 한미 법원판례의 검토

The federal courts in the U.S.A. have focused upon the knowledge of the online file servers in determining whether they are indirectly liable for their users’direct infringement of the copyrights. One of the requirements under DMCA Section 512(c) for a file hosting server to satisfy in order to qualify for Safe Harbor protection is that the server must establish that it does not have actual knowledge that material on its network is infringing, or “awareness or facts or circumstances from which the infringing activity is apparent,”which the federal courts have referred to as “red flag” awareness standard. Further, if a file hosting server obtains actual or apparent knowledge, then it should act “expeditiously to remove, or disable access to, the infringing material in order to qualify for the DMCA 제 512(c) safe harbor. The federal courts have held that actual knowledge is a subjective standard that requires the server to know that specific material is infringing. Red flag knowledge, in contrast, is an objective standard that requires the server to have knowledge of circumstances that make it clear that specific material isinfringing. On the other hand, Korean Supreme Court approaches the liability of the online service provider in terms of whether a certain service provider belongs to a special type of online service where the online infringing activities are prevalent. If an online service provider is considered as the special type of online service, then the provider can become liable for copyright indirect infringement as negligent accessory offender regardless of its awareness of the infringing activities. Further, this approach does not focus on the actual knowledge or red flag knowledge of the online service provider in determining the provider’s infringement liability, and thus can have a chilling effect upon the free flow of online information.