NFT 플랫폼의 온라인서비스제공자 책임에 대한 검토 — IPFS의 특징을 고려하여 —

In order to analyze the OSP liability of the NFT platform, it is necessary to understand the basic technical aspects of the NFT from a legal point of view. NFTs are issued based on blockchain, especially Ethereum, and their components can be divided into original content file, metadata and smart contract. Since the smart contract is only a program code stored in the blockchain, it is not related to copyright infringement. But original content file and metadata are generally stored off-chain outside the blockchain and are closely related to copyright infringement. In other words, the space where the original content file and the metadata file are stored is the space that the NFT platform is mainly responsible for as the OSP. Next, it is necessary to define the structure of the NFT platform based on this basic understanding. Recently, large NFT marketplaces such as OpenSea and SuperRare support storing original content files and metadata files in the InterPlanetary File System (IPFS) outside the marketplace. Although this type of NFT marketplace keeps the original content file itself as a small file in the form of a thumbnail, it mainly shows the smart contract address and CID (Content Identifier) and links the original content file stored in the external IPFS through them. So, the NFT platform is considered to provide hosting service and information search service. In light of the structure of this NFT platform, this study defines the NFT platform as a combination of NFT marketplaces and related storage such as IPFS and Cloud. The NFT platform defined in this way is considered to correspond to a hosting service provider and an information search service provider under Article 102 (1) (3) of the Copyright Act. Considering the nature of the OSP, it is necessary to review the requirements for establishment of liability for the NFT platform and the requirements for exemption from liability, respectively. Among the prior literatures, there are cases where the Supreme Court precedents or Article 102 of the Copyright Act are discussed without clearly distinguishing between the requirements for establishment of liability and the requirements for exemption from liability under the Copyright Act. In addition, the Supreme Court precedents stipulate different requirements for establish- ment of liability for OSPs with high risk of copyright infringement, such as P2P sharing sites and web storage services, and requirements for establishment of liability for other general OSPs. I think it is necessary to discuss whether to view these precedents as integrated jurisprudence that can be generally applied to OSPs or as dual jurisprudence according to the nature of OSPs. The most important of the OSP liability requirements borne by the NFT platform is ‘the ability to manage and control posts’. Here, it is thought that the liability requirements of the NFT platform vary depending on whether the NFT platform adopts IPFS as a repository of content sources or uses internal storage or external cloud services that the NFT platform can manage. Since IPFS is a P2P network, the NFT platform cannot force other nodes (computers) to delete specific content or block access to it. This means that the NFT platform does not have the capability of the technical management and control of posts in the IPFS area. Therefore, it should be said that the NFT platform can avoid OSP liability only by removing copyright infringe- ment from the NFT marketplace and blocking search information that can be linked to IPFS. Without this interpretation, it becomes a request for impossible action for exemption to the NFT platform, leading to an unfair conclusion. Furthermore, when the NFT platform uses an internal storage or cloud storage service, it has the right to manage and control stored posts, so it is necessary to delete the posts from the internal storage or cloud to avoid OSP liability under copyright law. The last thing I would like to mention is the nature of IPFS that affects the OSP responsibilities of NFT platforms. In IPFS, ① it is technically impossible to completely delete specific content from the entire network, ② it is easy to identify and search content by CID method rather than URL, and ③ DHT queries are disclosed, so it is possible for a third party to monitor the activity of specific nodes requesting CID. These characteristics should be properly considered for OSPs that adopt IPFS as a repository.