A federal district court in Florida has held that publication of a work on the Internet constitutes simultaneous publication everywhere in the world, including the United States, requiring that the work be deemed a “United States work” and triggering a Copyright Act requirement that a plaintiff must register the work before filing suit for infringement. Kernel Records Oy v. Mosley, 2011 U.S. Dist. LEXIS 60666 (S.D. Fla. June 7, 2011).

Kernel Records Oy, a Finnish record label, alleged that Timothy Mosley, professionally known as “Timbaland,” produced a song recording for singer Nelly Furtado that illegally sampled a sound recording owned by Kernel. In June 2011, the U.S. District Court, Southern District of Florida granted Mosley’s motion for summary judgment on Kernel’s claims of copyright infringement. Under § 411(a) of the Copyright Act, a work must be registered with the U.S. Copyright Office prior to becoming the subject of a copyright infringement suit in the U.S., although foreign works are exempt from the registration requirement under the Berne Convention.

Kernel’s song was composed in Norway, recorded in Finland, and (the court held) initially published in an Australian online magazine. Judge Torres concluded that because the song was first published on the Internet, this “constituted simultaneous publication in the [U.S.] and other nations around the world having Internet service,” thus satisfying the definition of a “[U.S.] work” under the Copyright Act. The court therefore granted summary judgment on the ground that Kernel “had not satisfied a statutory condition precedent to initiating this infringement lawsuit” – registration of the work with the U.S. Copyright Office.  

The decision is notable for its sweeping conclusion as to what constitutes a U.S. work under § 411. For the purposes of § 411, the Copyright Act defines a work as a United States work if, in the case of a published work, the work is published first in the U.S., simultaneously in the United States and another foreign nation, or first in a foreign nation where the authors are nationals, domiciliaries or habitual residents of the United States. In Kernel, the court determined that any work, foreign or domestic, becomes a U.S. work for purposes of § 411 at the time the work is published online anywhere in the world.

The issue has only once before been the subject of a suit in district court. Reaching the opposite conclusion, the court in Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) reasoned that “as a matter of U.S. statutory law,” photographs posted on a website in Germany “were not published simultaneously in the United States.” Further, the U.S. Copyright Office has declined to provide additional guidance regarding what constitutes publication for purposes of § 411.  

Once the court determined the Kernel work had been published, the court looked to the issue of simultaneous global publication. The court reasoned that “there can be little dispute that posting material on the Internet makes it available at the same time — simultaneously — to anyone with access to the Internet. There is nothing in the text of the statute to suggest that . . . certain works should be excluded from the definition of ‘United States work’ based solely on the manner in which they are published.” In substance, the court concluded that theoretical availability of any internet-published work represents publication in the United States.

Given the ramifications of the ruling in Kernel, the case may well go up on appeal in the U.S. Court of Appeals, Eleventh Circuit. However, it also serves as a warning to potential plaintiffs to register any works published online before bringing an infringement suit. Whatever the ultimate outcome of a possible appeal, obtaining registration will virtually always be less expensive than litigating the issue.