BLACK, Circuit Judge:
Appellant Kernel Records Oy (Kernel) appeals the district court's
In the summer of 2002, Glenn Rune Gallefoss created a Sound Interface Device (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 parties disagree 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 the Internet." However published in August 2002, the parties agree that in December 2002, a Swedish website called High Voltage SID Collection uploaded
On June 7, 2006, the allegedly infringing song Do It was released. On August 16, 2007, Gallefoss transferred his rights in Acidjazzed Evening to Kernel. Kernel litigated a claim of copyright infringement in Finland against parties associated with the release of Do It. Kernel lost. Kernel then brought its copyright infringement claim to the United States.
Kernel filed this action in the United States District Court for the Southern District of Florida. Kernel's amended complaint alleged that defendants Timothy Z. Mosley, Mosley Music, LLC (Mosley Music), Universal Music Distribution Corp. (Universal), Nelly Furtado, UMG Recordings, Inc. (UMG), Interscope-Geffen-A&M (Interscope), EMI Music Publishing (EMI Publishing), EMI April Music, Inc. (EMI April), Virginia Beach Music (Virginia), WB Music Corp. (WB), and Warner Chappell Music, Inc. (Warner) (collectively, Defendants)
Defendants individually answered the complaint and pleaded affirmative defenses. Each defendant raised as an affirmative defense Kernel's failure to comply with the required statutory formalities prior to filing suit, including registration of the allegedly protected work with the Copyright Office.
On May 28, 2010, Mosley and Mosley Music (collectively Mosley) moved for summary judgment. Contemporaneously with the motion for summary judgment, Mosley filed a statement of material facts, which alleged the following was undisputed:
In his motion, Mosley contended that Kernel lacked the statutorily required copyright registration for Acidjazzed Evening, and the copyright infringement action had to be dismissed. Mosley claimed it was undisputed that Acidjazzed Evening "was first published on the Internet" as part of the disk magazine Vandalism News Issue #39. Mosley contended that
Mosley also attempted to preempt Kernel's response. Mosley predicted Kernel would contend that because the Internet site was "based" in Australia, Acidjazzed Evening was published in Australia, and registration therefore was not required. Mosley called this argument "unavailing, and at odds with the plain language of ... the Copyright Act." Mosley, however, misconceived Kernel's argument.
On May 28, 2010, Kernel also filed its motion for summary judgment and statement of material facts. In its motion, Kernel simply stated it need not have registered its work because Acidjazzed Evening was first published outside the United States. Kernel did not contend, as Mosley had anticipated, that Acidjazzed Evening was first published on the Internet in Australia. Instead, Kernel claimed as an undisputed fact that Acidjazzed Evening was published in Australia on a physical computer disk, and uploaded to the Internet months later. Kernel's statement of material facts stated that:
The Gallefoss Declaration, dated May 28, 2010, was filed simultaneously with the statement of material facts.
Thus, on May 28, 2010, Mosley contended it was undisputed that Acidjazzed Evening was first published by making the SID file available for download from an "Internet site." On the same day, May 28, 2010, Kernel contended it was undisputed that Acidjazzed Evening was first published on a physical computer disk, and not uploaded to the Internet until months later.
Kernel subsequently responded in opposition to Mosley's motion for summary judgment. Kernel objected to Mosley's statement of undisputed facts, contending "[t]he factual citation made by defendants makes no reference to first publication on the internet." In its response, Kernel argued that Acidjazzed Evening was first published "on a disk magazine that was not online," and stated that Mosley's assertion
Defendants filed a collective response to Kernel's motion for summary judgment. Defendants reiterated Mosley's argument that the facts were undisputed that publication occurred on the Internet and stated that Kernel's "failure to address its non-compliance with [the registration] statutory condition precedent mandate[d] the denial of [Kernel]'s summary judgment motion (and the granting of Defendants' motions)." Defs.' Resp. at 4.
Mosley filed a reply in support of his motion for summary judgment. Mosley argued that:
Mosley's Reply at 1-2. Mosley then argued that Kernel failed to produce a physical copy of the claimed computer disk and that it had only produced a webpage printout. Mosley also argued that Gallefoss "agreed that the publication was via the online magazine" in his deposition. Id. at 3. Finally, Mosley argued that Gallefoss's declaration should be disregarded because it was offered for the sole purpose of opposing the summary judgment motion, and contradicted his prior sworn deposition testimony. Id. at 5.
On March 31, 2011, the district court issued an "abbreviated non-final Order" intended to be "supplemented with a plenary memorandum opinion and a final appealable Order." The non-final order indicated that the court would grant summary judgment to the defendants by relying on Mosley's Internet publication argument.
On April 1, 2011, Kernel filed a motion for reconsideration and a motion to stay the proceedings. Kernel claimed it had submitted credible evidence of non-Internet publication, but nevertheless voiced a willingness to register the work with the Copyright Office should the court hold the proceedings in abeyance. All defendants responded in opposition to Kernel's motions.
On May 5, 2011, Kernel filed a reply in support of its motion for reconsideration, indicating it had registered Acidjazzed Evening. Kernel also filed a motion for leave to amend its complaint to add the fact of its registration, attaching a certificate of registration from the Copyright Office effective April 29, 2011.
On June 7, 2011, the district court issued its final order. The district court found Gallefoss's deposition testimony was "clear enough" to affirmatively establish "Internet publication," and stated that if the testimony was "inaccurate or unclear, it was incumbent upon Plaintiff's counsel to clarify the witness' testimony on this important point." D. Ct. Final Order at 9. Relying on the sham affidavit doctrine, the district court disregarded Gallefoss's declaration, stating the "deposition testimony was clear" and a declaration cannot be used to create a factual dispute when "a party has given clear answers to
This Court reviews a district court's grant of summary judgment de novo. Brown v. Sec'y of State of Fla., 668 F.3d 1271, 1274 (11th Cir.2012). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine factual dispute exists only if a reasonable fact-finder "could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Once the movant adequately supports its motion, the burden shifts to the nonmoving party to show that specific facts exist that raise a genuine issue for trial." Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). However, when the moving party fails to demonstrate the absence of a genuine issue of material fact, the motion should be denied. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Clark v. Coats &
"Although all justifiable inferences are to be drawn in favor of the nonmoving party," Baldwin County v. Purcell Corp., 971 F.2d 1558, 1563-64 (11th Cir.1992) (quotation omitted), "inferences based upon speculation are not reasonable," Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir.1986). Evidence that is "merely colorable, or is not significantly probative" of a disputed fact cannot satisfy a party's burden, see Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citation omitted), and a mere scintilla of evidence is likewise insufficient, see Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir.2004).
The Constitution authorizes federal regulation of copyright protection. U.S. Const. art. I, § 8, cl. 8. Congress overhauled federal copyright law by passing the Copyright Act of 1976, Pub.L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C. § 101 et seq.). As part of that overhaul, Congress eliminated all statutory prerequisites to obtaining copyright protection. Instead, Congress provided "that a copyright exists the moment an original idea leaves the mind and finds expression in a tangible medium, be it words on a page, images on a screen, or paint on a canvas[]." La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1198 (10th Cir.2005), abrogated in part by Reed Elsevier, Inc. v. Muchnick, ___ U.S. ___, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010).
Congress also created a new voluntary registration system. See 17 U.S.C. § 408(a) ("[R]egistration is not a condition of copyright protection."). Registration under the Copyright Act is relatively simple and inexpensive. A copyright owner who wishes to register must: (1) complete an application, id. § 409; (2) deposit with the Copyright Office a copy of the work to be copyrighted, id. § 408(b); and (3) pay a modest fee, id. § 708; 37 C.F.R. § 201.3(c) (listing fees ranging from $35 for a "basic claim" to $220 for a "claim in a vessel hull"). The Register of Copyrights examines the application and determines whether the deposited material is copyrightable, and if so, registers it. 17 U.S.C. § 410(a). Registration of a work may be obtained at any time during the subsistence of the work's copyright. Id. § 408(a).
"[R]egistration is not a condition of copyright protection," and is completely voluntary. Id. However, Congress created a substantial incentive for copyright owners to register United States works:
Id. § 411(a). Thus, although "registration is not a condition of copyright protection," see id. § 408(a), registration (or a refusal of registration) of a United States work "is a prerequisite for bringing an action for copyright infringement," BUC Int'l Corp. v. Int'l Yacht Council Ltd., 489 F.3d 1129, 1142 (11th Cir.2007). The plaintiff bears the burden of proving compliance with statutory formalities. Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1233 (11th Cir. 2010).
Courts have divided on whether the filing of an application for registration with
For purposes of § 411, the Copyright Act defines a "United States work" as a work that:
17 U.S.C. § 101. A "treaty party" is defined as "a country or intergovernmental organization other than the United States that is a party to an international agreement." Id.
Although registration of "foreign works" (i.e., non-United States works) is not statutorily required, foreign works can also be registered. See Nimmer on Copyright § 7.16[C][1][a][iv]. Owners of foreign works may choose to apply for registration because Congress has granted substantial litigation benefits to owners of registered works. Id. A certificate of registration serves as prima facie evidence of copyright validity. 17 U.S.C. § 410(c). Further, only owners of registered works may collect
Here, the parties agree that Acidjazzed Evening was published, but dispute whether Acidjazzed Evening is a United States work for which registration was required prior to suit. Thus, their dispute and our analysis focuses on subsection 1 of the definition of a "United States work." Subsection 1's definition hinges on the timing and locations of first publication. To determine where and when Acidjazzed Evening was first published, we must examine the law of publication.
"[P]ublication is a legal word of art, denoting a process much more esoteric than is suggested by the lay definition of the term." Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211, 1214 n. 3 (11th Cir.1999) (quotations omitted). The Copyright Act defines "publication" as:
17 U.S.C. § 101. Publication also occurs "when an authorized offer is made to dispose of the work in any such manner[,] even if a sale or other such disposition does not in fact occur." Brown v. Tabb, 714 F.2d 1088, 1091 (11th Cir.1983) (quoting Nimmer on Copyright § 4.04).
However, proof of distribution or an offer to distribute, alone, is insufficient to prove publication. Central to the determination of publication is the method, extent, and purpose of distribution. See Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1214-1216 (discussing general and limited publication); cf. 17 U.S.C. § 101 (defining publication as distribution to the public). Most publication disputes concern whether distribution of the subject work was sufficiently broad, or whether the purpose of the distribution included a transfer of the right of diffusion, reproduction, distribution, or sale. See Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1215 (delivery of public speech via live broadcast to worldwide audience), 1216 (distribution to the press); Aerospace Servs. Int'l v. LPA Grp., Inc., 57 F.3d 1002, 1003 & n. 2 (11th Cir.1995) (distribution to a general contractor and government agencies); Donald Frederick Evans & Assocs., Inc. v. Cont'l Homes, Inc., 785 F.2d 897,
Determining whether a work was first published domestically or abroad adds an additional level of complexity. Because the statutory definition of "United States work" contains strict temporal and geographic requirements (e.g., "first," "simultaneously," "in the United States," "foreign nation," and "treaty party"), see 17 U.S.C. § 101, a determination that a work was first published abroad requires both: (1) an examination of the method, extent, and purpose of the alleged distribution to determine whether that distribution was sufficient for publication, and (2) an examination of both the timing and geographic extent of the first publication to determine whether the work was published abroad.
For example, a free pamphlet distributed by mail to every household on the continent of North America would undoubtedly meet the statutory definition of "publication." See 17 U.S.C. § 101. However, to determine whether the very same pamphlet was first published abroad, the exact timing and geographic extent of the first publication must be known. Was the pamphlet first mailed to every household in Mexico, followed a week later by a separate mailing to the rest of the continent? If so, the pamphlet is a foreign work, first published abroad, and is not subject to the registration requirement.
Of course, if a distribution is insufficient to establish publication, the timing and geographic extent of the deficient distribution is immaterial. Assume in both of the hypotheticals above that an advance copy of the pamphlet had been mailed only to a small number of reporters in Canada in an effort to gain media attention. Such a mailing to the press would not be a distribution to the public, and is therefore not a publication. See Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1216 (explaining that distribution to the news media, as opposed to the general public, for the purpose of enabling reporting is only a limited publication). Since the limited distribution to the press was not a publication, it could not be the first publication, and is immaterial to determining whether the pamphlet was a United States work or a foreign work.
Thus, to proceed with a copyright infringement action, a plaintiff that claims
Because terminology is important to our holding, we must review relevant technological terms. The term "online" means "relating to a service, resource, etc., available on or performed using a computer network (esp[ecially] the Internet)." Oxford English Dictionary Online, http://www.oed.com (June 2012). "The Internet is an international network of interconnected computers .... [that] enable[s] tens of millions of people to communicate with one another and to access vast amounts of information from around the world." Reno v. ACLU, 521 U.S. 844, 849-50, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). "Any person ... with a computer connected to the Internet can `publish' information.... Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group ...." Id. at 853, 117 S.Ct. 2329.
The Internet consists "of a wide variety of communication and information retrieval methods .... [including] electronic mail (e-mail) ... and the `World Wide Web.'" Id. at 851, 117 S.Ct. 2329. "E-mail enables an individual to send an electronic message... to another individual or to a group of addressees." Id. The sender of an e-mail may "attach" files such as photographs to the message. See United States v. Williams, 553 U.S. 285, 305, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). "[T]he World Wide Web ... allows users to search for and retrieve information stored in remote computers ...." Reno, 521 U.S. at 852, 117 S.Ct. 2329. That information is typically presented to users as "web pages" or websites, most, but not all of which, are freely available to the public. Id. In addition to e-mail and websites, Internet users may choose to distribute electronic files by other methods, such as "peer-to-peer networks." Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 919-20, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005). Internet users who desire access to peer-to-peer networks must download a software product that allows them to distribute and receive files over the Internet directly from other users of the software. Id. "[P]eer-to-peer networks are employed to store and distribute electronic files by universities, government agencies, corporations, and libraries, among others." Id. at 920, 125 S.Ct. 2764. Each of these very different "online" distribution methods occurs on the Internet.
Although "online" and "Internet" are largely synonymous terms, the Internet consists of distribution methods of significantly different types. Thus, an "online" activity may occur through public websites, restricted websites, peer-to-peer networks, e-mail, or other less common methods. Although it may be possible to presume simultaneous worldwide availability of a public website, see ACLU v. Reno, 929 F.Supp. 824, 831, 836-37 (E.D.Pa. 1996), aff'd, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997),
To determine the countries to which these other online methods distribute material would require additional evidence, such as the country of residence of the users of a certain restricted website or peer-to-peer network, or the recipient of a certain e-mail. For example, if a restricted website has subscribers only in the United States, Germany, and Japan, placing a file on that website would not make the file simultaneously available to a worldwide audience. Similarly, if the software for a peer-to-peer network was downloaded only in Canada, Egypt, and the Netherlands, offering a file for download on the peer-to-peer network would not make the file simultaneously available to a worldwide audience. Finally, if the recipients of an e-mail are all located in Mexico, sending a file by e-mail attachment would not make the file simultaneously available to a worldwide audience. Each of these "online" distribution methods utilizes the Internet, but none of them can be presumed to result in simultaneous, worldwide distribution.
Throughout this case, the district court (as well as the parties) confounded "the Internet" and "online" with "World Wide Web" and "website." Because of the strict temporal and geographic requirements contained in the statutory definition of "United States work," conflating these terms had a profound impact on the district court's evidentiary analysis. By confounding "Internet" with "website," the district court erroneously assumed that all "Internet publication" must occur on the "World Wide Web" or a "website." The district court then erroneously assumed all "Internet publication" results in simultaneous, worldwide distribution. As outlined below, a proper separation of the terms yields a very different analysis.
Before the district court, Mosley claimed the evidence affirmatively established that Gallefoss, through Vandalism News, first offered Acidjazzed Evening to the public by "posting" it to an "Internet site" in August 2002. Mosley claimed that such a posting on the Internet amounted to a simultaneous, worldwide publication of Acidjazzed Evening, making Acidjazzed Evening a United States work, and requiring registration prior to suit. Drawing all justifiable inferences in favor of Kernel as the nonmoving party, we conclude that Mosley failed to meet his burden as the movant under Rule 56 to show that there was no genuine dispute as to whether Acidjazzed Evening is a United States work.
In his motion for summary judgment, Mosley relied solely on Gallefoss's February 2010 deposition testimony:
Gallefoss February 11, 2010 Deposition at 76:16-77:9 (emphasis added). Mosley's characterization of the first "agreement" by Gallefoss that the disk magazine was online is unavailing. The transcript clearly indicates that Gallefoss interrupted his questioner immediately prior to the word "online." This simultaneous questioning and answering, as indicated by the transcript, does not yield clear evidence. The second purported "agreement" by Gallefoss is similarly problematic. Although the question assumes the disk magazine is online, the question's purpose was not to confirm this fact. Instead, the questioner sought information about where "the people who work for the High Voltage SID collection" obtained their copy of Acidjazzed Evening. Gallefoss confirmed "[t]hey took it from the disk magazines;" nothing more. To infer from Gallefoss's answers that he acquiesced in the questioner's assumption of online publication requires a strained reading of the exchange and unreasonable speculation.
However, even that unreasonable speculation (if assumed to be reasonable), would not definitively prove that Acidjazzed Evening was made available to the public on a website. As discussed, "online" is largely synonymous with the Internet, a term used to describe a wide variety of communication and information retrieval methods. Because the term "online" does not foreclose Internet distribution methods other than via a public website, Gallefoss's supposed agreement as to Vandalism News being an "online magazine" does not support a finding of simultaneous, worldwide publication on a website. Gallefoss's ambiguous testimony is insufficiently probative to demonstrate that there was no dispute of material fact concerning how Acidjazzed Evening was first published. See Clark, 929 F.2d at 606-07; cf. Wolf v. Coca-Cola Co., 200 F.3d 1337, 1343 (11th Cir.2000).
Further, Gallefoss's May 2010 deposition testimony directly contradicts Mosley's characterization of the February 2010 deposition testimony quoted above. When asked specifically about websites, Gallefoss testified as follows:
Gallefoss May 7, 2010 Deposition Testimony at 93:11-15. When asked a direct, concise question about websites, Gallefoss gave a direct response. And a reasonable inference from that response is that Vandalism News Issue #39 did not appear on a website in August 2002.
Mosley's motion rested solely on Gallefoss's deposition testimony. However, the
Suni May 26, 2010 Deposition at 3-4.
Suni's deposition testimony suffers from a lack of specificity in two ways. First, although Suni testified as to his general familiarity with Vandalism News, his testimony lacked temporal context. Suni's general familiarity with Vandalism News as an Internet publication on May 26, 2010, is too remote to be significantly probative as to whether Vandalism News Issue #39 was an Internet publication in August of 2002. See Burton v. City of Belle Glade, 178 F.3d 1175, 1195 (11th Cir.1999) (finding ten-year-old evidence "too remote and attenuated" to be probative); 1 K. Broun, McCormick on Evidence § 185 at 732 (6th ed. 2006) ("[E]vidence lacking substantial probative value may be condemned as `speculative' or `remote.' ... Remoteness relates not to the passage of time alone, but to the undermining of reasonable inferences due to the likelihood of supervening factors.").
Second, Suni, like Gallefoss, testified only that Vandalism News is an "Internet publication" and an "online magazine." Neither of these general characterizations provide any indication as to what method may have been used to distribute Acidjazzed Evening over the Internet in August 2002. Once again, the terms "Internet" and "online" include alternatives to the use of a public website, including a restricted website, e-mail, or a peer-to-peer network. Such general and ambiguous deposition testimony, without the inclusion of specific facts, is insufficiently probative to demonstrate that there was no dispute of material fact. See Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.2000); Wolf, 200 F.3d at 1343.
The only other piece of evidence discussed by the district court related to publication is a document produced by Kernel during discovery. The document is a screen-shot from a third-party website called "Commodore 64 Scene Database," which seeks "to gather as much information and material about the scene around the commodore 64 computer ...." Visitors to the site "can find almost anything which was ever made for the commodore 64." The screen-shot was made on February 5, 2010, lists the publication as Vandalism News #39, lists the releasing party, lists a release date of "10 August 2002," and lists Acid Jazz as a SID included in the release. This document, created eight years after the alleged first publication, is of minuscule probative value. Although it may establish the existence of Vandalism News Issue #39 and the date of its first release (neither of which is disputed by either party), it provides no basis from which to reasonably infer how Vandalism News Issue #39 was first released, whether on a public website, through another Internet distribution method, or on a physical computer disk.
Although Mosley's motion was improperly granted, this Court may affirm the judgment of the district court on any ground supported by the record, regardless of whether that ground was relied upon or even considered by the district court. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir.2010) ("This court may affirm a decision of the district court on any ground supported by the record."); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007) ("We may affirm the district court's judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below.").
"One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual dispute exists only if a reasonable fact-finder "could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Thus, when the record viewed in the light most favorable to the nonmovant reveals insufficient evidence to support a verdict for the nonmovant, summary judgment is appropriate. Id.; Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007); Thomas, 506 F.3d at 1363-64.
Here, a close review of the record dictates affirming the grant of summary judgment. Kernel bears the burden of proving compliance with statutory formalities, including the registration prerequisite. See Latimer, 601 F.3d at 1233; BUC Int'l Corp., 489 F.3d at 1142. Kernel failed to register Acidjazzed Evening prior to filing suit. The record reveals a lack of sufficiently probative evidence to determine that Acidjazzed Evening is a foreign work. Without sufficiently probative evidence of Acidjazzed Evening being a foreign work exempt from registration, and without a certificate of registration, Kernel's infringement suit was over before it began. See 17 U.S.C. § 411(a); BUC Int'l Corp., 489 F.3d at 1142.
Gallefoss Declaration at 3. Gallefoss's declaration, alone, is insufficient to establish that Acidjazzed Evening is a foreign work; he fails to address distribution, an essential element of publication. Although Gallefoss baldly attests that the disk magazine was published, "publication is a legal word of art, denoting a process much more esoteric than is suggested by the lay definition of the term." Estate of Martin Luther King, Jr., Inc., 194 F.3d at 1214 n. 3 (quotations omitted). Gallefoss attests to the computer disk being "published ... in Australia ... in August 2002," but he fails to attest to whether the disk was ever distributed, the breadth of distribution, the purpose of the distribution, and whether the distribution included a transfer of the right of diffusion, reproduction, distribution, or sale. See id. at 1216. The unsupported, conclusory, and general attestation by Gallefoss that Acidjazzed Evening was "published" lacks probative value, and is insufficient to prevent a grant of summary judgment. Leigh, 212 F.3d at 1217 ("This court has consistently held that conclusory allegations without specific supporting facts have no probative value." (quotation omitted)).
Kernel also offered Gallefoss's February 2010 deposition testimony as proof of publication by distribution on a physical disk. That exchange (and every other piece of evidence cited by Kernel to support its theory of publication by physical computer disk) fails to provide any insight as to distribution. Because Kernel failed to offer significantly probative evidence of distribution, that is, whether the disk was ever distributed, the breadth of distribution, the purpose of the distribution, and whether the distribution included a transfer of the right of diffusion, reproduction, distribution, or sale, no reasonable fact-finder could find that Acidjazzed Evening was first published on a physical computer disk in August 2002. See Latimer, 601 F.3d at 1233; Welding Servs., Inc., 509
Although no reasonable fact-finder could find by a preponderance of the evidence that Kernel's specific theory of publication occurred, that alone is insufficient to dispose of the case. If a reasonable fact-finder, under any theory, could find by a preponderance of the evidence (1) that Acidjazzed Evening was published; (2) when that first publication occurred; and (3) in what countries that first publication occurred, we would be required to remand the case to the district court. However, on this record, no reasonable fact-finder could possibly determine by a preponderance of the evidence those essential facts.
First, as previously discussed, Gallefoss's February deposition testimony and Suni's deposition testimony are too ambiguous and general to be sufficiently probative evidence of first publication. Leigh, 212 F.3d at 1217; Wolf, 200 F.3d at 1343. Second, the only inference (albeit an unreasonable and speculative one) to be drawn from Gallefoss's and Suni's ambiguous and general testimony is that Acidjazzed Evening was distributed "online" or on "the Internet." See Marshall, 797 F.2d at 1559 ("[I]nferences based upon speculation are not reasonable."). Third, although the screen-shot corroborates that Acidjazzed Evening was first released in August 2002 as part of Vandalism News Issue #39, it provides no evidence of "Internet publication," and certainly not availability from a publicly accessible website.
We have exhaustively reviewed the record; not a single piece of documentary or testimonial evidence describes Vandalism News as a publicly accessible website, or provides a basis to infer that Vandalism News Issue #39 was uploaded to a publicly accessible website in August 2002. To the contrary, Gallefoss testified clearly that the only website on which Acidjazzed Evening appeared was the High Voltage SID Collection, beginning in December of 2002. We are, at best, left with simple speculation that Acidjazzed Evening was published on the Internet in August 2002. A reasonable fact-finder could not find that a simultaneous, worldwide publication occurred in August 2002. Because the record lacks sufficiently probative evidence of simultaneous worldwide publication, we need not determine what effect simultaneous worldwide publication would have under 17 U.S.C. § 101's definition of a United States work.
Kernel has failed to produce sufficiently probative evidence of Acidjazzed Evening being a foreign work exempt from registration. Without proof of compliance with required statutory prerequisites, Kernel's case was not properly commenced. See BUC Int'l Corp., 489 F.3d at 1142. We need not remand the case for the simple purpose of allowing Kernel a second chance to muster the necessary proof. Instead, we affirm the grant of summary judgment.
Mosley failed to demonstrate the absence of a genuine dispute of material fact. See Fed.R.Civ.P. 56(a); Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Because Mosley failed to meet his burden as the movant under Rule 56, the district court erred by granting Mosley's motion for summary judgment. See Adickes, 398 U.S. at 157, 90 S.Ct. 1598; Clark, 929 F.2d at 606-07.
However, Kernel has failed to produce sufficiently probative evidence that it complied with the statutory prerequisites required to bring this action. We have reviewed
Kernel claims in its opening brief that the district court erred by finding Nelstar was an indispensable party for the purposes of granting a permanent injunction. However, "[d]ue to word limitations, Kernel ... only briefly mention[ed] this point" in its brief, and incorporated its arguments to the district court by citation. Appellant's Br. at 55. Such a blatant attempt to "bypass the rules" only "makes a mockery of our rules governing page limitations and length." See Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n. 4 (11th Cir. 2004). Kernel waived this argument by not properly presenting it for review. Id.
In Reed Elsevier, Inc., the Court reserved the question of whether district courts may or should enforce the registration prerequisite sua sponte. Id. at 1249. We do the same, since Mosley raised the issue of registration by motion.
