Hello. This is Law Firm Cheongchul Attorney Lee Young-kyung.
In this posting, I would like to introduce an important Supreme Court ruling regarding the interpretation of the act of 'storing game goods' under the Game Industry Law.
I. Overview of the Case
1) Relevant Regulations
According to the "Act on Promotion of the Game Industry" (hereinafter referred to as the 'Game Industry Law'), 'game goods' refer to video materials that are produced using information processing technologies or machinery to facilitate entertainment or to enhance leisure, learning, and exercise effects, etc., or devices and equipment created primarily for the use of such video materials (Article 2, Paragraph 1). It is prohibited to distribute, provide, or display/store game goods that have not been rated (Article 32, Paragraph 1, Item 1), and violating this prohibition can result in imprisonment for up to five years or a fine of up to 50 million won (Article 44, Paragraph 1, Item 2).
2) Facts
In this case, considering the reasons for the original judgment and the duly adopted evidence, the following facts were recognized:
1) The defendant prepared 14 general personal computers for the use of clients and registered as a member of the relevant site.
2) The defendant installed shortcut icons for the relevant site on each computer and input automatic login information.
3) Upon logging into the relevant site, they could use unrated game goods.
Thus, the prosecutor charged the defendant with storing unrated game goods by signing up for a website that allows access to these goods for the use of clients and by installing shortcut icons and automatic login information for the site on 14 PCs, in violation of Article 32, Paragraph 1, Item 1, and Article 44, Paragraph 1, Item 2 of the Game Industry Law.
II. Judgment of the Original Court (Daegu District Court, May 26, 2022, 2022No225 Judgment)
The original court declared a not guilty verdict regarding the defendant's actions, stating the following grounds.
1) The computer in question is difficult to be considered a 'game good' as defined in Article 2, Paragraph 1 of the Game Industry Law.
2) It is not possible to evaluate the defendant's act of 'storing the game goods.' The defendant's series of actions merely maintained the state where the game goods were accessible via the internet, stored on a server that was outside their control.
III. Judgment of the Supreme Court
The Supreme Court dismissed the prosecutor's appeal.
1. Emphasis on the strict interpretation of criminal laws and the principle of legality.
The Supreme Court first presented the basic principle that "the interpretation of criminal laws must be strict, and excessively expanding the meaning of the wording against the defendant is contrary to the principle of legality."
According to Article 2, Paragraph 1 of the Game Industry Law, 'game goods' refer to "video materials produced using information processing technologies or machinery to facilitate entertainment or enhance leisure, learning, and exercise effects, etc., or devices and equipment produced primarily for the utilization of such video materials." Furthermore, the Game Industry Law prohibits the act of "distributing or providing unrated game goods or displaying/storing for that purpose" in Article 32, Paragraph 1, Item 1, and stipulates in Article 44, Paragraph 1, Item 2 that violating this can lead to "imprisonment for up to five years or a fine of up to 50 million won."
The Supreme Court ruled that the meaning of 'storing' means "to keep and manage unrated game goods to allow for distribution or utilization, which is considered to imply actual control. Therefore, unless there are special circumstances, merely maintaining the ability to access game goods stored on servers not under one's control through the internet cannot be evaluated as the act of 'storing' these goods."
Specific judgment on this matter
The Supreme Court, regarding specific facts, first noted that ① The computers provided to users themselves are difficult to be considered as 'game goods' as defined in Article 2, Paragraph 1 of the Game Industry Law, and ② The defendant's actions were merely "maintaining the state where the game goods, stored on a server that is beyond their control, could be accessed via the internet," thus it cannot be regarded as an act of 'storing.' Therefore, the not guilty verdict of the original court concerning the defendant is justifiable, and there was no error that affected the judgment by misunderstanding the legal principles regarding 'storing' as defined in Article 32, Paragraph 1, Item 1 of the Game Industry Law.
III. Implications
This Supreme Court ruling is significant in clearly defining the meaning of the act of 'storing' under the Game Industry Law. In particular, through the concept of 'actual control,' it presents a standard for distinguishing between mere provision of access means and substantial acts of storage.
This judgment standard from the Supreme Court is expected to be an important criterion for determining the scope of criminal liability for service providers in regards to cloud-based game services, which are expected to increase in the future.
Law Firm Cheongchul possesses expertise through handling numerous criminal cases. Attorneys from large law firms and major corporations directly manage clients' cases. If you are concerned about a criminal matter, please feel free to contact us.
