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Bit Parts

By Stan Soocher

Alleging “Online” Distribution Not Enough to Establish Simultaneous International “Publication.”

The U.S. Court of Appeals for the Eleventh Circuit decided that alleging “online” distribution from Australia of a sound recording didn't establish simultaneous worldwide publication. Kernel Records Oy v. Mosley, 11-12769. For example, the appeals court noted, “if the software for a peer-to-peer network was downloaded only in Canada, Egypt, and the Netherlands, offering a file for download on the peer-to-peer network would not make the file simultaneously available to a worldwide audience” in the way that posting on an open Internet website would. Thus, there was a genuine issue of material fact ' in Kernel Records' copyright infringement suit against UMG Recordings, recording artist Nelly Furtado and producer Timbaland over the track “Do It” ' as to whether the plaintiff's work “Acidjazzed Evening” was simultaneously published in the United States. If it was, the lawsuit would be blocked, the appeals court noted, “because Kernel failed to apply for [U.S. Copyright Office] registration prior to the district court's grant of summary judgment” for the defendants '.”

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