In what might have otherwise been a legitimate case of copyright infringement, Kernel Records–the plaintiff in Kernel Records Oy v. Timothy Mosley et al., had its case tossed out because of an evidentiary failure.

Section 411 of the Copyright Act is clear: absent special circumstances, a plaintiff must attain a copyright registration, as discussed here.  One of those special circumstances is when a work is not considered a U.S. work.  The Copyright Act defines a U.S. work, which, for purposes here, includes those which are published first in the United States, or simultaneously in the United States and certain other territories.  A plaintiff seeking to escape the registration requirement based upon a work being a non-U.S. work should be able to produce some evidence concerning where his work was published. 

Kernel records faced this issue in its claim against Timothy Mosley (professionally known as Timbaland), Furtado, and others. 

Kernel claimed to own a song called “Acidjazzed Evening,” which was published as a Sound Interface Device (“SID”) in 2002.  Kernel alleged that “Acidjazzed Evening” was copied in Nelly Furtado’s 2006 song “Do It,” which was produced by Timbaland.  According to Kernel, Timbaland chose the music for “Do It” and intentionally copied “Acidjazzed Evening.”

But Kernel did not have a copyright registration for “Acidjazzed Evening.”  Kernel claimed it did not need that registration because “Acidjazzed Evening,” was not a U.S. work.  The defendants disagreed.

No one disputed that “Acidjazzed Evening” appeared in an Australian “disk magazine” called Vandalism News in August 2002.  No one disputed that Vandalism News was physically located in Australia.  But Timbaland maintained that because Vandalism News was published on the Internet, the publication of “Acidjazzed Evening” in Vandalism News resulted in first publication of “Acidjazzed Evening” occurred in all locations with Internet access—including in the United States. 

The District Court was persuaded by Timbaland and granted summary judgment in his favor.  The Eleventh Circuit disagreed, holding that the district court “erroneously assumed all ‘Internet publication’ results in simultaneous, worldwide distribution.”  The Eleventh Circuit explained that the district court failed to consider subscription services, peer-to-peer networks, and other potential access restrictions to Vandalism News

Although Kernel succeeded in this challenge to the District Court’s reasoning, the Eleventh Circuit nonetheless upheld the judgment against Kernel. 

The Eleventh Circuit (decision  here) examined the entire record and could not find any evidence explaining how Vandlalism News—and by extension “Acidjazzed Evening”—was published.  Though there was testimony that Vandalism News was an Internet publication and an online magazine, those characterizations failed to shed any light concerning the method by which “Acidjazzed Evening” was distributed.  Ultimately, this ambiguity inured to Kernel’s detriment.  “[B]ecause Kernel failed to apply for registration . . . and Kernel cannot demonstrate that Acidjazzed Evening is a foreign work exempt from registration, Kernel’s case is doomed,” the Court explained. 

Kernel had a choice: attain a copyright registration or demonstrate that the work was first published outside of the U.S.  Kernel did neither, and now will not get to prove its case on the merits.