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Kernel Records Oy v. Timothy Mosley, --F.3d--, No. 11-12769, 2012 WL 4040695 (11th Cir. 2012)

Kernel Records Oy v. Timothy Mosley, --F.3d--, No. 11-12769, 2012 WL 4040695 (11th Cir. 2012)

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Holder of copyright to musical work brought action against musician and his record company, alleging copyright infringement. District court granted defendants' motion for summary judgment, and holder appealed. The Eleventh Circuit Court of Appeals held that: (1) genuine issue of material fact as to whether alleged 'posting' of musical work to an 'internet site' amounted to a simultaneous, worldwide publication of the work, making it a U.S. work, and requiring registration prior to suit, precluding summary judgment in favor of defendants, but (2) holder failed to meet its burden of showing that the work was a foreign work exempt from registration.
Holder of copyright to musical work brought action against musician and his record company, alleging copyright infringement. District court granted defendants' motion for summary judgment, and holder appealed. The Eleventh Circuit Court of Appeals held that: (1) genuine issue of material fact as to whether alleged 'posting' of musical work to an 'internet site' amounted to a simultaneous, worldwide publication of the work, making it a U.S. work, and requiring registration prior to suit, precluding summary judgment in favor of defendants, but (2) holder failed to meet its burden of showing that the work was a foreign work exempt from registration.

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Published by: Tamaroff & Tamaroff, P.A. on Sep 25, 2012
Copyright:Attribution Non-commercial

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[PUBLISH]IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT ________________________  No. 11-12769 ________________________ D. C. Docket No. 1:09-cv-21597-EGTKERNEL RECORDS OY,Plaintiff-Appellant,versusTIMOTHY MOSLEY,f.k.a. Timbaland,UMG RECORDINGS, INC.,INTERSCOPE-GEFFEN-A&M,d.b.a. Interscope,d.b.a. Geffen,MOSLEY MUSIC GROUP, LLC,UNIVERSAL MUSIC DISTRIBUTION, et al.,Defendants-Appellees. ________________________ Appeal from the United States District Courtfor the Southern District of Florida _________________________ (September 14, 2012)Before MARCUS and BLACK, Circuit Judges, and HODGES, District Judge.
*
BLACK, Circuit Judge:
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of 
*
Florida, sitting by designation.
Case: 11-12769 Date Filed: 09/14/2012 Page: 1 of 40
 
Appellant Kernel Records Oy (Kernel) appeals the district court’s order 
1
granting Defendants’ motion for summary judgment, and denying as mootKernel’s motion for summary judgment. We conclude the district court erred bygranting Appellee Timothy Mosley’s motion for summary judgment. However, because Kernel failed to produce substantially probative evidence that it compliedwith statutory prerequisites prior to filing this action, we affirm.I. FACTSIn the summer of 2002, Glenn Rune Gallefoss created a Sound InterfaceDevice (SID) file called
 Acidjazzed Evening.
Gallefoss based his musical work 
2
on a MOD file that had been previously created by Janne Suni. Suni’s MOD fileis playable on an Amiga computer or by using a newer computer running softwarethat “emulates” the Amiga and its sounds. Gallefoss’s SID file is playable on aCommodore 64 computer or with “emulator” software. The technical details of  both the SID and MOD files are irrelevant to this opinion; all that is relevant is
The parties consented to proceeding before a magistrate judge in accordance with 28
1
U.S.C. § 636(c). For simplicity, we refer to the magistrate judge’s decisions as those of thedistrict court.Gallefoss’s amended complaint indicates that his work is referred to by multiple titles,
2
including
 Acidjazzed Evening 
,
 Acid Jazzed Evening 
, and
 Acid Jazz 
. For consistency, we use
 Acidjazzed Evening 
throughout this opinion.2
Case: 11-12769 Date Filed: 09/14/2012 Page: 2 of 40
 
that during the summer of 2002, Suni’s existing MOD file was modified byGallefoss into a SID file called
 Acidjazzed Evening 
.On August 10, 2002, with Gallefoss’s permission,
 Acidjazzed Evening 
appeared in the Australian disk magazine
Vandalism News
Issue #39. The partiesdisagree as to how this “disk magazine” was published. Kernel contends the disk magazine was published in August 2002 on a physical computer disk in Australia.Defendants contend the disk magazine was published in August 2002 “on theInternet.” However published in August 2002, the parties agree that in December 2002, a Swedish website called
 High Voltage SID Collection
uploaded
 Acidjazzed 
3
 Evening 
to its own website, likely after obtaining a copy from
Vandalism News
Issue #39.On June 7, 2006, the allegedly infringing song
 Do It 
was released. OnAugust 16, 2007, Gallefoss transferred his rights in
 Acidjazzed Evening 
to Kernel.Kernel litigated a claim of copyright infringement in Finland against partiesassociated with the release of 
 Do It 
. Kernel lost. Kernel then brought itscopyright infringement claim to the United States.
“To download means to receive information, typically a file, from another computer to
3
yours via your modem. The opposite term is upload, which means to send a file to another computer.”
United States v. Mohrbacher 
, 182 F.3d 1041, 1048 (9th Cir. 1999) (quotation andalteration omitted).3
Case: 11-12769 Date Filed: 09/14/2012 Page: 3 of 40

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