In only the second case to rule on the issue, in its opinion entered on June 7, 2011, the court in Kernal Records Oy v. Timothy Z. Mosley p/k/a Timbaland, et al., Case No. 09-21597-Civ-Torres (S.D. Fla.), held that first publication of a foreign work online constitutes simultaneous publication throughout the world, including the United States. As a result, the copyrightable subject matter at issue, which was initially published online, was considered a "United States work" under the Copyright Act. As a "United States work," the foreign copyright owner was required to comply with the same registration requirements as U.S. copyright owners in order to bring a lawsuit to enforce their copyrights against infringement in the United States.

The plaintiff, Kernel Records Oy sued the producers, writers, and record companies associated with the 2006 Nelly Furtado song "Do It," claiming that the song illegally sampled portions of the plaintiff’s work "Acidjazzed Evening." The plaintiff acquired the rights to "Acidjazzed Evening" from the original composer of the work in 2007. The composer had composed the work in Norway and recorded it in Finland. The court further found that the composer first published the work in an Australian disk magazine called Vandalism News, issue 39, in August 2002. The work was not only displayed there, but was also made available for downloading and copying, all with the knowledge and approval of the composer. In December of 2002 the work was also posted on the High Voltage SID (Sound Interface Device) Collection Web site.

The U.S. Copyright Act defines a "U.S. work" in pertinent part to be any published work that is first published "simultaneously in the United States and a foreign nation that is not a treaty party." 17 U.S.C. 101(1)(C). The court held that the initial publication online meant that the work qualified as a "United States work" under the Copyright Act because posting the work online constituted simultaneous publication of the work in the United States and all other nations around the world having Internet service. Based on this determination, the copyright owner, as the owner of a "United States work," was required to register "Acidjazzed Evening" with the U.S. Copyright Office prior to suing for copyright infringement. Since the owner failed to timely register the work, the court held that the plaintiff didn’t have standing to bring the suit. The judge also rejected the plaintiff’s request to amend the suit because it had since registered the work. As a result, all infringement claims were dismissed.

Foreign works first published outside the United States do not have to be registered in the United States in order for a foreign owner to enforce its rights against infringement in the United States under the terms of the Berne Convention. But, according to the court’s holding, any work first published online will be deemed to be simultaneously published around the world, including in the United States. Thus, any work first published in this manner will be subject to the same requirements as works first published in the United States, including the registration requirement.

The holding in this case differs from the only other case in which this issue arose. In Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009), the court reached the opposite conclusion in a case in which the issue was whether the publication of photos on a German Web site made them a U.S. work. The Moberg court held that publication of the photos on a German Web site did not amount to simultaneous publication in the United States and Germany, and therefore, the copyright owner did not have to satisfy the U.S. registration requirement before suing for copyright infringement. Moberg, 666 F. Supp. 2d at 424.

The Kernal court rejected the Moberg court’s reasoning:

Judge Hillman’s contextual and policy-driven analysis is reasonable and sound but is, in our opinion, wholly untethered to the actual statutory and treaty language that governs this dispute.

Instead, the Kernal court based its decision on its analysis of the statutory language of the Copyright Act, without focusing on the policy concerns considered by the Moberg court. The Kernal court took particular issue with one of the policy considerations from Moberg by challenging the assertion that U.S. copyright laws protect foreign works "without requiring the artists to undertake any formalities in the United States." Moberg, 666 F. Supp. 2d at 423. The Kernal court countered this assertion by noting that not all formalities for foreign authors have been dispensed with, namely, that "registration is still required for foreign authors to gain the procedural benefits of a prima facie presumption of the validity of a copyright, statutory damages, and attorney’s fees under the Act." Therefore, according to the Kernal court, the Moberg court’s policy-driven analysis was flawed.

This result should cause foreign copyright owners to consider the potential implications of first publishing their works on Internet Web sites. If works are first published online, they may be treated the same as any work first published in the United States. Consequently, they would be subject to the registration requirement before filing a lawsuit in the United States against infringers. Consequently, foreign copyright owners should consider implementation of a registration program in order to ensure their ability to effectively enforce their copyrights in the United States and to ensure eligibility for statutory damages and attorney’s fees for any acts of infringement.