Page:Country of Origin and Internet Publication - Applying the Berne Convention in the Digital Age.pdf/11



The dispute in Kernel v Mosley arose from a sound recording of a composition entitled "AcidJazzed Evening" ("AJE") created by Glenn Rune Gallefoss. In 2007, Gallefoss transferred "all transferrable rights" to Kernel Records, a company registered in Finland. In 2009, Kernel alleged that the sound recording and musical arrangement of AJE had been copied into Nelly Furtado's song "Do It". It brought a claim for copyright infringement in the Florida Southern District Court against Timbaland (who wrote the composition and produced the recording), EMI Music and a few other recording and distribution companies. This dispute was initially tried and lost in Finland. While the Finnish ruling remained pending on appeal in Finland, Kernel commenced the second duplicative action in Florida.

In Florida, Kernel alleged that Gallefoss first published AJE on a disk magazine (i.e. a computer disk containing a magazine) in Australia in August 2002. It argued that music file was only later made available online on 21 December 2002. Kernel also claimed that at least three whole months separated the first publication on the disk magazine and the online appearance of the music file. Further, Kernel argued that Gallefoss had not chosen the internet as the means to first publish his work.

However, these submissions were not accepted by Justice Torress of the South Florida District Court. His Honour found that AJE was first published online via the so-called "disk magazine", which was held to be an online magazine. This finding of fact was largely due to Gellefoss's ambiguous oral testimony and Kernel's lack of evidence as to the nature of the alleged disk magazine. Therefore, online publication had occurred.

The court further concluded that posting AJE on the internet was publication under section 101 of the Copyright Act. Although Justice Hillman in Moberg v 33T had deemed it unnecessary to delve into the issue of internet publication, Justice Torress in Kernel v Mosely stated, "We must address the issue". His Honour reasoned that once a work is available for downloading and copying (as opposed to being merely viewable as was the case in Moberg), members of the public are able to obtain a possessory interest in the work. Hence, once the author has lost the physical ability to control the dissemination and enjoyment of the work and the work has been "acquired by the public", publication under section 101 of the Copyright Act has occurred.

As to whether publishing on the Internet lead to simultaneous publication in the United States, the court expressly declined to follow the reasoning in the earlier persuasive (but not binding) Delaware District Court decision of Moberg v 33T.