This opinion, by Judge Hillman (sitting by designation from the District of New Jersey pursuant to the standing order in this Court), addreses an issue of first impression for the Court related to subject matter jurisdiction over copyrighted images on the Internet. Moberg v. 33T LLC, C.A. No. 08-625-MLH-JS, Opinion (D. Del. Oct. 6, 2009). Pursuant to the Copyright Act, a plaintiff alleging infringement os a U.S. work must have registered the work. Id. at 5. The work plaintiff alleged was infringed was posted on a German website. Defendant argued the work was a U.S. work that plaintiff failed to register and therefore this Court lacked jurisdiction to hear any infringement action. Id. at 5-7. The Court, therefore, needed to decide whether a photograph posted to a foreign website is simultaneously "published" everywhere and therefore is a U.S. work and must be registed. Id. at 6-7.
The Court found that this work was not "published simultaneously" worldwide and therefore is not a U.S. work subject to registration. Id. at 14-15. A different finding would be contrary to the Berne Convention, would "allow American citizens to infringe on foreign copyrighted works without fear of legal retribution," and the United States copyright laws "provide for protection of foreign works in the United States without requiring the artists to undetake any formalties in the United States." Id.