Moberg v. 33T LLC: Delaware District Court Distinguishes Posting and Publication for Purposes of the Copyright Act

Copyright Patent

Moberg v. 33T LLC, Civil No. 08-625(NLH)(JS) (D. Del. Oct. 6, 2009). 


On October 6, the United States Court for the District of Delaware ruled in a case of first impression that a photograph posted to the Internet from a foreign server is not a “United States work” within the meaning of section 411 of the Copyright Act, and thus need not be registered in the U.S. in order to bring suit for infringement. 17 U.S.C § 411(a). Håkan Moberg, a Sweden-based photographer, brought a copyright infringement action against 33T, LLC, a Delaware corporation, and Cedric and Erwan Leygues, France-based website operators, for unauthorized use of photographs he had displayed on a German website in 2004.  The court denied the defendants’ motion to dismiss, allowing the photographer to go forward with his suit without having to first register his copyright in the United States.

Loeb & Loeb LLP provides an overview of the case. Ex©lusive Rights suggests that the outcome was largely inconsequential. But CyberLaw Currents sees the case as significant for international copyright law.

The defendants asserted that, by posting material to the Internet from a German server, the plaintiff effectively had published the material simultaneously in the U.S. and in Germany.  This would have rendered the work subject to the requirement of § 411(a) that any domestic copyright must be registered with the Copyright Office before any infringement action may be brought regarding that work.  Declining to decide generally whether online posting constitutes “publication,” the court instead held that posting material on a foreign-based Internet site does not make it a “United States work,” despite the fact that it is simultaneously viewable in the United States, and accordingly it is exempt from the Act’s requirements.  In other words, the plaintiff’s photographs were not published simultaneously in the U.S. regardless of whether the German website was considered to have published them or not.

The court reasoned that accepting the defendants’ argument would “overextend and pervert” U.S. copyright law and would be contrary to the goals of the Berne Convention for the Protection of Literary and Artistic Works of reducing barriers to enforcing copyright of foreign works under U.S. law and promoting uniformity in international copyright law. The court additionally found that the Copyright Act’s exclusion of non-U.S. works from the registration formalities signaled a legislative desire to facilitate protection of copyright holders’ copyrighted material in the U.S.  The result of requiring registration of non-U.S. works, the court worried, would be to allow unlimited infringement within the U.S., because “the majority of foreign works are never registered in America.”

The court also found that the plaintiffs had not properly served the defendants with process, but gave the parties 45 days to amend service. Furthermore, the court ordered a 45 day limited “jurisdictional discovery” period to determine whether the defendants’ websites specifically targeted Delaware citizens for purposes of establishing jurisdiction.