“Perpetual” Software Not Updated; 
 

What Could be The Problem?

Written by.  Park Hyun-ju, attorney, Deliberation Department, Korea Copyright Protection Agency

Recently, Mr. Kim discovered an online shopping mall that sold the “perpetual” Photoshop software for KRW 12,000. The sales posting read, "The person who purchased the software through this posting will be emailed the software files and installation instructions" and "This is perpetual software and cannot be updated." Mr. Kim always wanted to edit photos using Photoshop, but when he looked at the official website, Mr. Kim found that he had to pay a subscription fee of about KRW 30,000 per month, which was beyond his means. Mr. Kim was tempted to learn that he could buy the “perpetual” version at this shopping mall for only KRW 12,000. When Mr. Kim browsed the other products in the online shopping mall, he found that the mall was selling a variety of software besides Photoshop. Windows was sold at KRW 12,000 and Office 365 was sold at KRW 12,000. Mr. Kim knew that he had to pay a monthly subscription fee to use Photoshop and Office 365, but he thought it was a little weird that only this mall offered perpetual software.

In the early 2000s, it was customary to purchase CDs and CD Keys to own software. Nowadays, however, transactions are often done by purchasing (subscribing) licenses that allow a user to freely download software online, but only use it for a limited period of time. The same is true for Photoshop sold by Adobe.

Photoshop's General Terms of Use (the "Terms") state that "The publisher is the sole owner of all rights, title, and interest in and to the services and software," that "Our services and software are licensed, not sold" (Article 1.2), and that "The license must be used by only one person and may not be shared" (Article 3.1). It also prohibits "copying, modifying, hosting, streaming, sublicensing, or reselling the services and software (Article 6.2 of the Terms)" and "circumventing any access or use restriction setup function to prevent specific uses of the services and software (Article 6.7 of the Terms)." According to the above Terms, Photoshop can only be used in the form of a license that grants a term of usage by a license and is not accompanied by a CD or CD Key, etc. In the case of a license, only one license can be acquired and used per person.

Likewise, in light of judicial precedents in similar cases,1) the act of converting non-perpetual Photoshop into a perpetual Photoshop and selling it via e-mail delivery on an online shopping mall can be considered to be copying and transmitting software that infringes the copyright of the right holder by circumventing (disabling the technical protection measures) that allow use for the period granted by the license. 

The perpetual Photoshop sold by the online shopping mall that Mr. Kim visited is only about 1/30th of the annual subscription fee of the original software. Moreover, this perpetual Photoshop is known to be unupdatable, suggesting that it is not genuine. Considering this, it is possible to conclude that the seller of the so-called perpetual Photoshop is infringing on the right to reproduce or transmit the right of the owner of the software by selling pirated copies of the software that have violated the technical protection measures, or is at least aiding the infringement of the rights of reproduction and transmission of the illegal software by the creators and users. If Mr. Kim had purchased and used Photoshop from the above online shop, it could have been an act of copyright infringement.

Nowadays, it is common to purchase (subscribe) the license key rather than the software. If there is perpetual software that is sold at an exorbitantly low price, a customer must carefully verify that it is genuine.

The Copyright Protection Deliberation Committee recently decided to issue a warning to the shopping mall operator as well as a correction notice to delete or suspend transmission, considering that the postings under review are copyright infringement information closely related to the copyright infringement of the creator or buyer and are subject to a correction notice, and that the postings under review are likely to have a significant impact on the legal market of the copyrighted works.

※ In accordance with Article 133(3) of the Copyright Act, the Korea Copyright Protection Agency recommends that online service providers take corrective measures to delete or suspend the transmission of illegal copies that infringe copyrights, etc., and to warn the person who posted them, to prevent copyright disputes in advance by notifying Internet users who are not familiar with the Copyright Act about whether they have violated the Copyright Act after a review by the Copyright Protection Deliberation Committee.

1)  "The defendant's act of allowing a copied game CD without an access code to run the program on PS2 by installing a mod chip violates substantial technical protection measures stipulated in Article 30(2) of the Act." (Supreme Court Feb. 24, 2006. Decided. 2004 2743)