Copyright Owner Fails To Establish Foreign Publication of Work, Loses Case

Kernel Records Oy owns the copyright for a song entitled Acidjazzed EveningKernel sued Timothy Mosley and others for infringing Kernel’s copyright in Acidjazzed Evening with the song entitled Do It.  Kernel did not register its copyright in Acidjazzed Evening with the U.S. Copyright Office before filing suit against Mosley in the U.S. or before the district court made its final decision.  Kernel argued that Acidjazzed Evening was first published as a foreign work, so that registration in the U.S. was not required for Kernel to sue Mosley for copyright infringement.  Mosley argued that Acidjazzed Evening was first published on the Internet, was therefore simultaneously published throughout the world, and that registration in the U.S was required before Kernel could sue Mosley for copyright infringement in the U.S.

The district court agreed with Mosley and granted Mosley’s motion for summary judgment.  The Eleventh Circuit Court of Appeals ruled that there was a genuine issue of material fact regarding the publication of Acidjazzed Evening and that the district court erred in granting Mosley’s motion for summary judgment.  The Eleventh Circuit upheld the district court’s decision in Mosley’s favor on the alternative ground that Kernel did not present sufficient evidence to show that it complied with the statutory requirements regarding publication.

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Copyright Holder’s Tardiness Prevents Copyright Infringement Claims

RSA Network, Inc., is a Utah-based company that developed the pilot escort vehicle training program for the state of Utah.  A pilot escort vehicle is a vehicle that guides an oversized vehicle by driving directly in front of or directly behind the oversized vehicle.  RSA’s president, Randy Sorenson, wrote the pilot escort vehicle certification training manual for the Utah program in 1992.  Sorenson registered his copyright in the manual in 1993. 

Evergreen Safety Council is a non-profit Washington corporation that is the administrator for Washington State’s pilot escort vehicle training program.  Sorenson acted as a consultant to the State of Washington in the development of its pilot escort vehicle training program.  Washington State based its pilot escort vehicle training manual on Utah’s manual.  Evergreen’s president sent a draft copy of Washington State’s training manual to Sorenson in 1999, seeking comments and suggestions.  Sorenson did not respond and did not open the letter containing the draft manual until 2010.  Evergreen registered its copyright in a revised version of the Washington State manual in 2003.

In 2009, RSA accused the states of Oklahoma, North Carolina and Washington of infringing its copyright in its pilot escort vehicle training manual.  Evergreen filed a declaratory judgment action for a judgment of non-infringement against RSA.  RSA counterclaimed for copyright infringement, to which Evergreen pleaded the laches defense.  The district court granted summary judgment in Evergreen’s favor, ruling that RSA’s claims were barred by laches.  The Ninth Circuit Court of Appeals affirmed.

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Washington State Copyright Infringer Sent to Prison

Everett, Washington resident and Korean national Sang Jin Kim was sentenced to 40 months in prison for criminal copyright infringement.  Kim was also ordered to forfeit to the U.S. government $409,776 of proceeds from his infringing activities.  Kim pled guilty to two counts of criminal copyright infringement.

According to the U.S. Department of Justice (DOJ), Kim offered a variety of copyrighted materials for download through his websites, including Korean television shows, U.S. movies, U.S. television shows, software, video games, fitness videos, wrestling videos and championship fight videos.  Kim did not have licenses to distribute any of these copyrighted materials and charged users subscription fees to download content.  Approximately 20,000 users subscribed to Kim’s websites.  Some of the U.S. movies Kim made available on his websites were still playing in theaters and were not available on DVD.  He also made Korean television programs available in the U.S. weeks before authorized U.S. distributors made them available.

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