This is an informal case summary prepared for the purposes of facilitating exchange during the 2026 WIPO IP Judges Forum.
Session 7: Online Platforms and Intermediary Liability for IP Infringement
Supreme Court of the Republic of Korea [2019]: 2016Da271608
Date of judgment: February 28, 2019
Issuing authority: Supreme Court of the Republic of Korea
Level of the issuing authority: Final Instance
Type of procedure: Judicial (Civil)
Subject matter: Copyright and Related Rights (Neighboring Rights)
Plaintiff/Appellant: Individual Copyright Holder
Defendant/Respondent: Kakao Co., Ltd.
Keywords: Online service provider (OSP); Online platform liability; User-generated content (UGC); Copyright infringement; Secondary liability; Joint tortfeasor; Notice-and-takedown; Specific and individualized notice
Basic facts: The plaintiff (the copyright holder) sent the defendant a notice demanding that the infringement be ceased and the infringing materials removed after copyrighted videos produced by the plaintiff were uploaded without authorization to the online community of the portal site operated by the defendant, Kakao Co., Ltd. (Kakao).
(i) In the notice, the plaintiff identified only search terms and the representative URL of the relevant online community, rather than the specific URLs or titles of the infringing postings.
(ii) The search terms generated numerous videos, many of which were unrelated to the plaintiff's copyrighted work.
(iii) The representative URL led to numerous postings in the online community, without providing sufficient information to enable the defendant to identify which particular postings allegedly infringed the plaintiff's copyright.
(iv) Because a video consists of a continuous sequence of images, similarity in only certain portions of a video does not necessarily establish copyright infringement. Determining infringement therefore required the videos to be played and examined in whole or in substantial part. The plaintiff did not provide the original video files necessary to apply feature-based filtering technology. Given the scale of the portal, the number of infringement complaints, the volume of uploaded videos, and their running times, identifying and removing the infringing material solely on the basis of the information supplied by the plaintiff would have been technically difficult and excessively costly.
(v) The defendant deleted some potentially identifiable posts through photos and other materials attached to the plaintiff’s request, and when the copyright holder reported infringement, requested information that could identify the post, and deleted the post and issued warnings if the rights holder identified it.
(vi) The defendant repeatedly requested that the plaintiff identify the particular postings to be removed. The defendant even identified a certain URL of a posting within the specified online community and asked the plaintiff to confirm whether it infringed the plaintiff's copyright. The plaintiff did not respond.
The plaintiff subsequently filed a claim for damages against the defendant for joint tort liability based on aiding and abetting by omission, alleging the defendant had failed to discharge its duty to prevent copyright infringement by failing to remove and block the infringing postings.
Held: The Supreme Court reversed the High Court judgment adverse to the defendant and remanded the case to the High Court.
Relevant holdings in relation to Online Platforms and Intermediary Liability for IP Infringement:
1. When copyrighted material is posted in an Internet posting area provided by an online service provider and can readily be located by Internet users through the provider's search function, such circumstances alone do not automatically give rise to tort liability on the part of the online service provider for the copyright infringement. When infringing material is posted in an Internet posting area provided by an online service provider, where the provider has not received a specific and individualized request from the copyright owner to remove and block the particular postings and therefore has not acquired specific knowledge of the circumstances in which the material was posted, or where the provider lacks the technical or economic ability to manage and control the material, the provider should not, absent special circumstances arising from the nature of the material or otherwise warranting the imposition of such a duty, be regarded as having a duty to take appropriate measures, such as removing the infringing material and blocking the posting of materially similar content in the same Internet posting area.
2. With regard to the case at hand, the plaintiff had not made a specific and individualized request for the removal and blocking of the particular postings infringing its copyright. Nor was there sufficient evidence that the defendant had specific knowledge of the circumstances in which the infringing postings were made. Moreover, the defendant could not readily determine, based on the search terms supplied by the plaintiff, which postings infringed the plaintiff's copyright, and it could not reasonably be said to have possessed the technical and economic ability to manage and control such postings in the circumstances. Accordingly, the defendant was not under a duty to remove the infringing postings or to block the posting of materially similar content on its platform. The defendant may be regarded as having taken appropriate measures with respect to the allegedly infringing postings to the extent technically and economically feasible.
Relevant legislation: Copyright Act of the Republic of Korea, Articles 102-103 (KR348); Civil Act of the Republic of Korea, Articles 750, 760 (KR155).