Court gives final sentence to former president of Oh!Cool Co., Ltd. for providing hyperlinks to pirated films
E210706Y3 | Aug. 2021（E261）
The former president and former chief technology officer of Oh!Cool Co., Ltd. (hereinafter referred to as “Oh!Cool”), who are surnamed Liu and Weng, respectively, had jointly developed the APPs (hereinafter referred to as the “infringing Apps”) that are able to intercept and get access to, through computer programs, the links from a third party’s websites to enable the infringing Apps’ users to link to external source to watch films. From July to August 2016, there was another person who, without the prior consent from KKTV Co., Ltd. (hereinafter referred to as “KKTV”) holding the exclusive right of public transmission for two specific Korean dramas, publicly transmitted the two Korean dramas to Youtube or Dailymotion, and the infringing APPs added the links to the two dramas into the VOD playlist (video on demand playlist), and thus, enabled unspecific users of the infringing APPs in Taiwan to watch the two dramas. Against such an act, KKTV sued Oh!Cool, Liu and Weng for Copyright Act violation, and the prosecutor indicted the defendants therefor.
The Taiwan Taipei District Court found the defendants not guilty in the first instance proceedings on the ground that Liu and Weng was engaged in the act of providing hyperlinks to unspecific users in 2016 when the act was not officially created and established as equivalence to Copyright Act violation until May 2019 when the Taiwan Copyright Act was amended to include the act of providing hyperlinks as copyright infringement.
The case further moved to the second instance proceedings at the Taiwan IP Court, which held that the act of providing hyperlinks does not constitute public transmission, and that the offense Liu and Weng committed was that of assisting another person in infringing KKTV’s economic rights in and to the said two Korean dramas which were uploaded by that person without KKTV’s prior consent. Moreover, the IP Court ruled that according to the amended Copyright Act (amended in 2019), the act of providing hyperlinks is directly “established as infringement” as clearly stated in the provisions, which does not mean that the act of providing hyperlinks before the amendment “does not constitute commission of an offense”. Based on the foregoing reasoning, the IP Court sentenced Liu and Weng to detention for two months and forty days, respectively, which may be commutable to a fine payment. On the other hand, Oh!Cool was ordered to pay a penalty in an amount of TWD100,000, for its representative and employees at that time committed the offense of infringing another’s economic rights during the course of performing business duties. Oh!Cool, Liu, and Weng appealed this case to the Supreme Court, but the appeal was dismissed. This case was concluded accordingly. (Released 2021.07.06)