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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Case No. 09-cv-21597-EGT-TORRES Kernel Records Oy, Plaintiff, v. Timothy Z. Mosley p/k/a Timbaland, et al. Defendants. ) ) ) ) ) ) ) ) ) )

PLAINTIFF KERNEL RECORDS OYS RESPONSE IN OPPOSITION TO DEFENDANT TIMOTHY Z. MOSLEY P/K/A TIMBALAND AND MOSLEY MUSIC, LLCS RULE 56 MOTION FOR SUMMARY JUDGMENT

Plaintiff Kernel Records Oy, (Kernel) by and through its undersigned counsel, hereby responds in opposition to Defendants Timothy Z. Mosley p/k/a Timbaland and Mosley Music, LLCs (Mosley) Rule 56 Motion for Summary Judgment. DE 137. For the reasons stated below, Defendants Motion should be denied. Relevant Facts The facts relevant to this response are fully set forth in Plaintiffs Motion for Summary Judgment and Statement of Undisputed Facts DE 140 and 141, which is fully incorporated herein. Kernel also incorporates its Responses in Opposition to the Motions for Summary Judgment by Defendants Furtado and Interscope, which are being filed contemporaneously. Argument The applicable Summary Judgment standard has been fully set forth in Plaintiffs Motion for Summary Judgment, which is fully incorporated herein. Mosley essentially makes three arguments: (1) Kernels claims are barred due to the lack of any U.S. Copyright Registration; (2) Gallefoss did not obtain from Suni any right to copyright the Gallefoss work; and (3) defendants possess an implied license. Mosley does not argue that Kernels work was not copied, rather, he

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tries to hide behind registration requirements. forth more fully below. I.

All of Mosleys arguments fail for reasons set

Lack of registration does not bar Kernels claims. For a claim under the Copyright Act for an alleged infringement of a United States

work, the work must be registered according to provisions in the Copyright Act. 17 U.S.C. 411(a) ([N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.) After the Berne Convention Implementation Act of 1988, however, registration of copyright is no longer a prerequisite to an action of infringement of copyright in Berne Convention works whose country of origin is not the United States.1 See Rudnicki v. WPNA 1490 AM Alliance Communs., Inc., No. 04C5719, 2006 U.S. Dist. LEXIS 1238 (N.D. Ill. Jan. 4, 2006) (Polish journalist entitled to bring copyright claims in U.S. despite lack of registration when his work was first published on a Polish website). Mosley claims that Kernel has no United States copyright registration for its SID file version of Acid Jazzed Evening (AJE) or for any claimed sound recording or composition. DE 137 at 2. Mosley contends that Kernels AJE is a United States work which it has failed to register and erroneously concludes that defendants are entitled to summary judgment because Kernel has failed to satisfy the statutory precondition of 17 U.S.C.A. 411. Id. at 3. For purposes of section 411, a work is a United States work only if: (1) in the case of a published work, the work is first published2 -(A) in the United States; (B) simultaneously in the United States and another treaty party3 or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided by the United States;

Pub. L. No. 100-568, 102 Stat. 2853 (1988) (codified as amended in scattered sections of Title 17 of the United States Code). 2 Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. 17 U.S.C. 101. 3 The Copyright Act 101 defines a treaty party as a country or intergovernmental organization other than the United States that is a party to an international agreement. An international agreement is (1) the Universal Copyright Convention; (2) the Geneva Phonograms Convention; (3) the Berne Convention; (4) the WTO Agreement; (5) the WIPO 2

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(C) simultaneously in the United States and a foreign nation that is not a treaty party; 17 U.S.C. 101. Mosley claims that AJE is a U.S. Work under both categories (B) and (C). This

argument fails, because an identical argument has been addressed and squarely rejected by the leading case in this area. Moberg v. 33T LLC, 666 F. Supp. 2d 415 (D. Del. 2009) (rejecting simultaneous publication theory as contrary to the Berne Convention and U.S. copyright law). In that case, the defendants made an unsuccessful attempt to extend the pre-suit registration requirement to foreign works first published on a non-U.S. website. The court rejected the position Mosley is now taking. It refused to find that posting a work on the internet means simultaneous publication in every country in which the work is accessible, thus rendering the work a United States work subject to 411. Id. at 424. The Moberg court also contemplated a situation where first publication occurred prior to a work appearing on the internet. If these [works] had been published prior to the posting on the website, and that publication did not occur in the United States, the Courts analysis would be moot, because it could not be disputed that the [works] are not United States works, and therefore not subject to the registration requirements of the Copyright Act. Id. at 422 n.12. Since Gallefoss actually published AJE in a disk magazine in Australia several months prior to the online appearance of his AJE, clearly it is not a U.S. work. Mosley has presented no evidence that the first publication of AJE was by posting on the internet. 1. Acid Jazzed Evening was not first published on the internet.

Simply put, Kernel has never said AJE was first published on the internet and no testimony from any party says otherwise. The first publication was on a disk magazine that was not online. Deposition of Glenn Rune Gallefoss (Gallefoss Dep.) Vol. I at 73:10-74:5 (attached as Exhibit A); Gallefoss Decl., DE 143-4 at 4, 23; Kernel Statement of Material Fact (Kernel Stmt. of F.), DE 141, 19 & 20. Without any foundation, Mosley claims: It is undisputed that Plaintiffs SID file was first published on the Internet and was therefore published in the United States and simultaneously in other nations of the world in which there is Internet service. DE 137 at 3. Mosley further claims: Plaintiff attempts to evade its fatal lack of registration by pleading that the SID file was first published in Australia based upon the contention that the Copyright Treaty; (6) the WIPO Performances and Phonograms Treaty; and (7) any other copyright treaty to which the United States is a party. 3

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Internet site (disk magazine) through which the SID file was released to the world is purportedly based there. Id. No testimony shows disk magazine means Internet site. In its Statement of Material Facts in Support of its Motion for Summary Judgment (Mosley Stmt. of Facts), DE 138, Mosley claims: 2. Gallefosss work was first published on the Internet. The first publication of Gallefosss version of Acidjazzed Evening, in any form, was in Australia as part of the disk magazine Vandalism News, issue 39, in August, 2002. (Amended Complaint, 25). 3. Gallefoss chose the internet as the means to first publish his work (as is customary in the demoscene sub-culture of which he is a member). (Gallefoss Depo., 2/11/10, 20-21. Exhibit A.) Both 2 and3 of Mosley Stmt. of Facts intentionally misrepresent and distort the truth. Contrary to Mosleys assertion in 2 of Stmt. of Facts, 25 of the Amended Complaint (or any other paragraph for that matter) does not state anywhere that Gallefosss work was first published on the Internet. Rather, the first publication on August 2002 was on a disk

magazine. Gallefoss Decl, 143-4 23. The full text of 25 of the Amended Complaint goes on to state that: On December 21, 2002, the SID file was included in the High Voltage SID Collection an online collection of SID files. There is nothing on the record which states the disk magazine, literally a computer disk containing a magazine, was simultaneously placed online. During his deposition testimony and in his Declaration Gallefoss has emphasized that first publication was on a disk magazine in August 2002. Ex. A at 73:10-74:5; Gallefoss Decl., DE 143-4 23; Kernel Stmt. of F., DE 141, 19 & 20. The SID file was made available online in December 2002. Id. Kernel has put on record that first publication took place in August 2002 on a disk magazine, and the subsequent appearance of the SID file online in the High Voltage SID Collection happened more than three months later in December, 2002. A careful review of the record reveals that at least three whole months (September, October and November and a large part of December) separated the first publication on the disk magazine and the separate online appearance of the SID file. This is an important fact that Mosley intentionally glosses over. Mosley spends a great deal of time and effort trying to make these separate events look like first publication. Gallefoss testified that he had nothing to do with the online appearance of

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AJE on the High Voltage SID collection once first publication had already taken place in the disk magazine. Ex. A at 122:5-122:11. Paragraph 3 of the Mosley Stmt. of Facts relies on pgs. 20-

21 of the Gallefoss Deposition for the proposition that Gallefoss chose the Internet as the means to first publish his work. Again, there is nothing on pages 20-21 of the Gallefoss deposition, or anywhere else in the transcript that Gallefosss work was first published on the internet. To the contrary, Gallefoss said in his deposition that the first publication was on a disk magazine - he never said that first publication was online. Ex. A at 43:19-43:24. Additionally, Gallefoss stated that back in 2002 he was concerned that the SID file size should be kept small so that it could fit on the disk magazine. Ex. A at 101:4-101:12. It would be nonsensical for Gallefoss to think about keeping his file size small if the SIDs intended publication source were the internet. This is further evidence, ignored by Mosley here but trumpeted by the other defendants in their motions, that Gallefoss first published in physical form on a computer disk called Vandalism News, not on the internet. Gallefoss Decl., DE 143-4, 23-25. The disk is in Commodore 64 format and thus viewable only on a C64 computer or an emulator. Ex. A at 44:12-44:21. Mosley does not provide any record evidence to show that the contents of the disk consisting of Vandalism News were simultaneously made available online. . Thus, Mosleys argument about internet first publication necessarily fails due to lack of evidence. 2. AJE is not a U.S. Work.

At all relevant times including when he created AJE, Gallefoss has resided in Norway. Gallefoss Dep. at 6:5-9:22, Ex. A. AJE was first published on a disk magazine in Australia. Gallefoss Decl., DE 143-4, 23. The only connection to the United States is the fact that Mosley, a U.S. resident, stole AJE in Miami, Florida. Even if the first publication of AJE were online, it is not a U.S. Work subject to registration requirements. First, recent case law has conclusively established that posting of a work on the internet in another part of the world does not make such a work a U.S. work. Id. Second, the term of protection in Australia at the time of AJEs first publication was not the same or longer than the term provided in the United States, a necessary requirement for qualifying a work as a U.S. work under 17 U.S.C. 101. A. Posting on the internet does not make AJE a U.S. Work.

Kernel does not concede that first publication of AJE was via posting on the internet. However, even assuming arguendo it did, Mosleys arguments still fail. The only federal case to 5

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address whether a foreign work posted on the internet is subject to U.S. registration held that foreign works are not subject to U.S. registration requirements simply because they are posted on the internet. Moberg v. 33T LLC, 666 F. Supp. 2d 415, 423 (D. Del. 2009). Mosley recognizes that Moberg held that the display of photographs on a German internet site did not amount to simultaneous publication that would render the work a United States work. DE 137 at 11. The only argument that Mosley makes is: The Moberg court is simply wrong in this regard. Id. at 11. As discussed below Moberg is a thorough treatment of the issues and exactly right. (i) Moberg correctly rejects the idea of simultaneous U.S. publication for foreign works placed on the internet.

Moberg was a professional photographer living in Sweden. Id. at 418. He created a series of photographs that were first posted in 2004 on a German website. Id. This website was an online art shop that offered copies of the photographs for sale. Id. The photographs showed up in 2007 on some U.S. websites. Id. Moberg filed suit in the U.S. against the operator of these websites alleging violations of the U.S. Copyright Act. Id. Moberg had never registered his copyright in the U.S. Id. at 419. Defendants in Moberg took a similar position to what Mosley is now arguing with respect to posting of foreign works on the internet: Defendants contend that plaintiffs photographs, which were created undisputably outside the United States, are United States works because when they were posted on a German website, they were published simultaneously in Germany and in the United States. [citation to 17 U.S.C. 101]. Defendants argue that it is well settled that Internet publications are published everywhere simultaneously, regardless of the location of the server hosting the website. (Def. Br. at 7.) Therefore, because the posting of a photograph on a website simultaneously publishes the photograph everywhere, including the United States, it is a United States work, and as such, it must be registered prior to filing suit for infringement. Moberg v. 33T LLC, 666 F. Supp. 2d 415, 419 (D. Del. 2009) (emphasis added). The court disagreed it was well settled that internet publications are published everywhere simultaneously for purposes of the Copyright Act. Id. at 420. The court observed no court had assessed the correlation between posting of foreign copyrighted works on a foreign website and the copyright holders ability to file suit for infringement in the United States pursuant to the United States Copyright Act. Id. However, it found a highly persuasive law

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review article on the issue.4

Professor Cotters observations, which the Moberg court

considered, apply equally to the position now advocated by Mosley, and militate against equating internet postings with publication: First, requiring all website owners to deposit copies of their work with the Library of Congress appears both burdensome (particularly if the content of the website changes with some frequency), and pointless, insofar as works made available to the public over the Internet are much more readily accessible as a practical matter than are hard copies residing in the Library of Congress. Second, equating the two concepts might require inquiry into where a work is first accessed to determine its country of first publication. This inquiry may be not only burdensome but also fortuitous, to the extent the work could be first accessed just about anywhere. Alternatively, if the work is available for downloading everywhere, perhaps it should be viewed as simultaneously published everywhere, on the analogy of books that are deemed published upon their first appearance on retailers shelves, regardless of whether any consumer buys or even notices them. This would mean, however, that the country of origin of a work first uploaded in the United States by a U.S. author would be the country or countries whose copyright term is the shortest. While defensible in theory, this outcome might seem contrary to copyright owners reasonable expectations. Third, equating transmissions with publication would reduce the copyright term for certain works from 120 to 95 years, and would render the fair use defense marginally more tenable. Both of these results might increase social welfare, but could have some marginal negative impact on the welfare of individual authors. 92 Minn. L. Rev. 1724, 1787. [citations omitted] (referenced in Moberg at 422). The court stated that the determination of whether the photographs were United States works depended on the resolution of two issues: (1) whether the posting of the photographs on the Internet was considered publishing, and if so (2) whether publishing on the Internet caused the photographs to be published only in the country where the Internet site is located, or in every country around the world simultaneously. Moberg, 666 F. Supp. at 421. On the first of the two issues the court stated: the question of whether an Internet posting constitutes publication under U.S. law and the Berne Convention remains unresolved. Id. at 422.5 First, the

In his law journal article, Toward a Functional Definition of Publication in Copyright Law, 92 Minn. L. Rev. 1724, 1749 (2008), Thomas Cotter considered, inter alia, the interrelation between the Copyright Act, the Berne Convention, and the Internet, and what constitutes publication. Moberg v. 33T LLC, 666 F. Supp. 2d 415, 420 (D. Del. 2009). 5 In making this observation the court was informed by the careful analysis done by Professor Cotter where he concluded that: [o]n balance, despite some common-sense appeal to the notion that works transmitted over the Internet are necessarily published, and despite a plausible textual 7

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court reviewed the defendants statement that it is well settled that Internet publications are published everywhere simultaneously and concluded the issue was far from settled. Moberg at 420. The defendants had cited to two cases that the court believed only made the observation that the Internet is located in no particular geographical location and it is available to anyone worldwide. Id. The court noted that the fact that defendants did not cite to any case that directly supported their position evidenced the lack of any courts consideration of the issues, let alone consensus on it. Id. The court turned to consideration of Professor Cotters article. Id. First, the court noted that as Professor Cotter explains in 1988, the United States acceded to the 1971 Paris Act of the Berne Convention for the Protection of Literary and Artistic Works,6 an international copyright treaty that, among other things, reflects an unfavorable view of copyright formalities. Id. The effect of the United States accession to the Convention was to exempt works the country of origin of which is not the United States from the registration requirement. Id. Thus, the court noted that because plaintiffs photographs did not originate in the United States, they were not subject to the registration requirement, and such a formality was not a prerequisite to suit. Id. The court agreed with Professor Cotter that the determination of country of origin is not so simple as that determination hinges on whether the work is published and if so where the work is published. Id. Under the Berne Convention the country of origin is considered to be: (a) in the case of works first published in a country of the Union, that country; in the case of works published simultaneously in several countries of the Union which grant different terms of protection, the country whose legislation grants the shortest term of protection . . . . Berne Convention, art. 5(4). The United States Copyright Act mimics this language:

basis for reaching this result, it is hardly obvious that this result would be desirable. 92 Minn. L. Rev. 1724, 1787-88 (2008). 6 The Union are those countries which have adopted the Berne Convention. The Convention provides that [a]uthors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, . . . the rights specially granted by this Convention, and that [t]he enjoyment and exercise of these rights shall not be subject to any formality. Berne Convention, art. 5. Australia is a member of the Berne Convention: World Intellectual Property Organization Website, http://www.wipo.int/clea/en/search.jsp?cntryorg_id=6&cat_id=11&order=date (accessed June 15, 2010). 8

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[A] work is a United States work only if-- (1) in the case of a published work, the work is first published-- . . . (B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States. 17 U.S.C. 101. Moberg v. 33T LLC, 666 F. Supp. 2d 415, 421 (D. Del. 2009)[emphasis added]. The court then squarely rejected the idea that photographs became U.S. works subject to U.S. registration requirements because they were simultaneously posted online in Germany and the U.S. It stated that such an outcome would overextend and pervert the United States copyright laws, and would be contrary to the Berne Convention. Id. at 420. The Moberg court stated three factors in support of its decision: (1) to hold publications on the internet simultaneously published everywhere in the world is contrary to the purpose of the Berne Convention;7 (2) American citizens should not be allowed to infringe on foreign copyrighted works without fear of legal retribution; and (3) U.S. copyright laws, in accord with Berne Convention, provide for protection of foreign works without requiring formalities. Id. at 423.8 The same factors support Kernel in this case. Defendants have argued complying with the U.S. registration procedure is simple to do; therefore Moberg is wrong. DE 137 at 11. First, the simplicity of the registration procedure

The overarching purpose of the Berne Convention is to provide protection to authors whose works will be published in many countries. Christopher Sprigman, Reform(aliz)ing Copyright, 57 Stan. L. Rev. 485, 544 (2004). Bernes proscription of mandatory formalities is a rational response to the difficulty of complying (and maintaining compliance) with differently administered formalities that may have been, absent the Convention, imposed in dozens of national systems, some with registries, some without, and none of which shares information. Id. (explaining that [e]vidence for this view can be found in the origins of the Berne Convention). Moberg v. 33T LLC, 666 F. Supp. 2d 415, 422 (D. Del. 2009). 8 See 17 U.S.C. 408(a) (2000) ([R]egistration is not a condition of copyright protection.); Kuklachev v. Gelfman, 600 F. Supp. 2d 437, 473 (E.D.N.Y. 2009) (citing Muchnick v. Thomson Corp., 509 F.3d 116, 133 (2d Cir. 2007)) (Under the clear language of the statute, which refers only to any United States work, foreign works originating in countries party to the Berne Convention need not comply with 411.); Cotter, supra, at 1743-44, (explaining that U.S. copyright subsists in unpublished works . . . from the moment of creation, wherever those works happen to be created. Upon publication, . . . U.S. copyright continues to subsist in the work . . . if, on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled). The adoption of defendants point of view would be contrary to that law. Moberg v. 33T LLC, 666 F. Supp. 2d 415, 423 (D. Del. 2009). 9

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does not alter the United States obligations under the Berne Convention. The Berne Convention abolished formalities for copyright protection and requiring registration for any work published on the internet would be a back door to reestablishing those formalities. Second, the law of this Circuit is that registration must be in hand before a lawsuit can be filed. See M.G.B. Homes v. Ameron Homes, 903 F.2d 1486 (11th Cir. 1990). Thus, a potential plaintiff must wait until the certificate is issued by the Copyright Office before filing suit, even though the statute of limitations is running. Thus, a foreign plaintiff, who would have no reason to register his work in the United States as a matter of course, would lose his remedies while the U.S. Copyright Office passed judgment on his claim. (ii) Kernels position is on all fours with Moberg.

The facts in Moberg and the present case are similar. Mosley does not dispute that copying of Gallefosss AJE took place. There is no dispute that the first publication took place in Australia. While Kernel does not concede that first publication took place online, even if it had been online, it was in Australia and not the United States. Suni has testified Gallefoss had permission to make and release Gallefoss version of AJE. Deposition of Janne Suni (Suni. Dep.) DE 143-2 at 69:5-71:4. There is record evidence to support copying. Id. at 23:2-16. Kernel does not dispute that it has not registered its copyright in the United States. To require Kernel to register its copyright in the U.S. will lead to all the negative repercussions that the Moberg court cautioned against. Mosley has provided no persuasive explanation for why

Moberg is not applicable to the present situation. The cases that Mosley cites are problematic. First, Mosley cites Getaped.Com, Inc. v. Cangemi, 188 F. Supp. 2d 398, 402 (S.D.N.Y. 2002) for the proposition that internet display alone constitutes distribution within the meaning of the Copyright Act and, therefore, constitutes publication. DE 137 at 5. It further cites A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001), Playboy Enterprises, Inc. v. Chuckleberry Pub., Inc., 939 F.Supp. 1032, 1039 (S.D.N.Y. 1996) and Playboy Enterprises, Inc. v. Frena, 839 F. Supp. 1552, 1556 (M.D.Fla. 1993) Id. Professor Cotter has analyzed these cases as well as other sources and rightly concluded the question of whether Internet transmissions constitute publications (and if so, what consequences therefore follow) still often admit of no clear answer. 92 Minn. L. Rev. 1724, 1770 (2008). Further, as Professor Cotter also points out the Copyright Office has not

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taken an official position on the matter.9 It is far from clear that posting online constitutes publication for purposes of copyright law and after Moberg it is clear that even if it was, posting in one country would not make it simultaneous publication in the U.S. B. Australian term of protection shorter than U.S. term.

The Moberg court noted that Germany and U.S. offered the photographer in that case the same term of protection of life of the author plus an additional 70 years. Moberg, 666 F. Supp. 2d at 419 n.7 (D. Del. 2009). Despite this similarity in the German and U.S. terms of protection, the court rejected the argument that the photographs were U.S. Works. Id. at 424. Here Mosley cannot and does not claim that Australias term of protection was the same or longer than the U.S. during the relevant period of time. As shown below the Australian term of protection was not the same in 2002 and is not the same at present for sound recordings. Indeed, Mosley has not discussed the term of protection in Australia at all. The treaty status at the time of first publication of the foreign work is determinative for this inquiry.10 When first publication took place in 2002, Australias term of protection was shorter than that of the U.S.11 During the relevant period of time, when the work was first published, Australias term of protection for sound recordings was first publication plus 50 years, and for musical arrangements, it was life of author plus 50 years. These terms are shorter than the term offered by the U.S. In the United States, protection for both sound recordings and musical arrangements for works created on or after January 1, 1978 is life of the author plus 70 years. 17 U.S.C. 302. The present term of protection in Australia for sound recordings is shorter than

See U.S. Copyright Office, Circular 65: Copyright Registration for Automated Databases 2 (2006) (It is unclear whether online availability for the user constitutes publication of the work under the copyright law.); U.S. Copyright Office, Circular 66: Copyright Registration for Online Works 3 (2006) [hereinafter Online Circular] (The definition of publication in the U.S. copyright law does not specifically address online transmission.). 10 The Copyright Act, as amended by the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), extends certain protections to foreign works when the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party. 17 U.S.C.S. 104. Hamdad Trust v. Ajit Newspaper Adver., Mktg. & Communs., Inc., 503 F. Supp. 2d 577 (E.D.N.Y. 2007)(emphasis added). 11 The Australian Copyright Act 1968 as it stood in 2002, available at World Intellectual Property Organization Website, http://www.wipo.int/clea/en/search.jsp?cntryorg_id=6&cat_id=11&order=date (accessed June 15, 2010). 11

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the term in the United States.12 In 2002 when AJE was first published Australia clearly did not offer a term of protection that was the same as or longer than the term provided in the United States. AJE does not qualify as a U.S. Work as defined in 17 U.S.C. 101 category (B) because Australia, while it is a treaty party, is not a treaty party that granted a term of copyright protection that is the same or longer than the term provided by the U.S. Nor does category (C) apply, because Australia is a treaty party.13 3. Courts do not lightly impose the burdens of registration on foreign works.

Mosleys request to impose registration obligations on Kernel will lead to procedural hardship that is disfavored by the Berne Convention. As a result of the Berne Conventions mandate that foreign works not be subject to formalities, 411s pre-suit registration requirement does not apply to non-U.S. works. See Berne Convention, art. 5. Cosmetic Ideas, Inc. v. IAC/InteractiveCorp, No. 08-56079, 2010 U.S. App. LEXIS 10555 (9th Cir. May 25, 2010) (discussing the burdens of the registration requirement in detail). Requiring pre-suit registration from owners of foreign works would create a mess for statute of limitations purposes. Further, summary judgment is not the proper remedy in this situation. Indeed,

Mosley has not cited a single case where summary judgment was granted to a defendant in a copyright infringement case on the basis that the plaintiff had not registered its copyright. Lastly, modern jurisprudence requires more than mere online presence for courts to impose U.S. legal consequences upon foreign parties.14

Presently the term of protection in Australia is 70 years from date of first publication for sound recordings (shorter than US), and life of the author plus 70 years for musical arrangements. World Intellectual Property Organization Website, http://www.wipo.int/clea/en/search.jsp?cntryorg_id=6&cat_id=11&order=date (accessed June 15, 2010). 13 World Intellectual Property Organization Website, http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=15 (accessed June 15, 2010). 14 Since the advent of online commerce, courts have had to struggle with the legal implications in the United States of online transactions. Such cases frequently involve when to assert jurisdiction over a foreign party doing business online Arguably anyone who does commerce online can be subject to the jurisdiction of courts everywhere in the world, yet courts have been circumspect and have looked at factors other than the mere online presence in the home country. Courts have come up with a set of limiting factors, such as nexus or purposeful availment. See, e.g., Roblor Mktg. Group, Inc. v. Gps Indus., 645 F. Supp. 2d 1130, 1138 (S.D. Fla. 2009)(Cases from other U.S. courts where the allegations involve online activity have also refused to impose obligations on parties that merely posted content online, without some kind of additional 12

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II.

Gallefoss obtained Sunis authorization to create AJE. Mosley argues Gallefoss did not have permission to create his version of AJE. As a

threshold matter, defendants have moved to compel the forensic examination of Gallefosss personal home computer to gather evidence on this issue. DE 158. On the one hand, defendants argue summary judgment should be granted to them on this issue because of the evidence on the record; on the other, defendants have thrown a Hail Mary pass after the close of discovery in the hope that Gallefosss personal e-mails differ from the testimony of both his and Janne Sunis testimony. The mere fact alone that defendants are seeking additional evidence renders

defendants claims of no material dispute of fact suspicious. Gallefosss arrangement of AJE is a derivative work entitled to copyright protection under 17 U.S.C. 103.15 It is also undisputed AJE is an original arrangement. A derivative work within the meaning of the Copyright Act consists of a contribution of original material to a preexisting work so as to recast, transform or adapt the pre-existing work, and the variation from the original must be sufficient to render the derivative work distinguishable from its prior work in any meaningful manner. 1 Melville B. and David Nimmer, Nimmer on Copyright, 3.03[A]; see also Schrock v. Learning Curve Intl, Inc., 586 F.3d 513, 520-21 (7th Cir. 2009); Woods v. Bourne Co., 60 F.3d 978, 990 (2d Cir. 1995). Gallefosss arrangement of AJE meets and exceeds this low standard. 1. Gallefosss use of AJE is lawful.

[A] nonexclusive license to use copyrighted material may be granted orally or implied from conduct. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 956 (11th Cir. 2009). It is

undisputed Gallefoss lawfully used Sunis Amiga version of AJE to create and release a C64 arrangement of AJE as attested to by several communications between Suni and Gallefoss via internet relay chats (IRC) in 2002. Kernel Stmt. of F. at 5.16 Through the course of these

connection to the forum state). The Moberg opinion is consistent with the trends in such cases and correctly rejected U.S. registration for foreign works so as to not run afoul of Berne. 15 To establish copyright protection in a derivative work, Kernel must show that: (1) the preexisting material was not used unlawfully, and (2) the new material possesses sufficient originality to be subject to copyright protection. 17 U.S.C. 103. It is undisputed Gallefoss lawfully used Sunis Amiga version of AJE to create and release a C64 arrangement of AJE and that Gallefoss made numerous, original changes. 16 Gallefoss has produced several copies of e-mails and electronic documents that he could find evidencing such communications. However, he has testified that his old computer crashed and 13

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conversations, Suni and Gallefoss reached an agreement where Gallefoss would create a Commodore 64 arrangement of Sunis work Acidjazzed Evening. Id. While the IRC

conversations were not recorded, this permission is evidenced in a July 31, 2006, e-mail later sent from Suni to Gallefoss in which Suni asked Gallefoss via e-mail to provide a signed document evidencing Suni gave Gallefoss permission to make and release the Commodore 64 version of Acidjazzed Evening. Id. at 24, DE 143-4, Ex. A. This document is the most unimpeachable testimony on the record from Suni about the permission he gave Gallefoss because it was written in advance of Gallefoss even knowing his version of AJE had been stolen by Mosley. In this e-mail Suni says to Gallefoss: Im writing about Acidjazzed Evening, of which [the] intro was stolen by Nelly Furtado for her song Do It..I think they sampled it from the SID-version you made in 2002.Can you provide me a signed document, which proves that I gave you permission for making/releasing that c64-cover version, if that is needed? (I know its odd logic that I have to prove that I gave a permission for something) (emphasis added) Gallefoss Decl., DE 143-4, 29 & Ex. A. Other e-mails between Suni and Gallefoss similarly establish Gallefosss lawful use of AJE. See Gallefoss Decl., DE 143-4, 28-31, Exs. A-D. In an e-mail dated January 15, 2007 Suni urges Gallefoss to go for it if he has a legal claim. Gallefoss Decl., 29 & Ex. B. Again on January 18, 2007, Suni wrote an e-mail to Gallefoss where he said he thought it would be great to split a fund 50/50 between Suni and Gallefoss for fighting the infringement of Acidjazzed Evening. Gallefoss Decl. 30 & Ex. C. In an e-mail to Gallefoss dated October 28, 2010, after Suni had been strong-armed into a bad settlement with Mosley, Suni told Gallefoss that Sunis lawyers did not claim the SID version was mine. Gallefoss Decl., DE 143-4, Ex D. In the same e-mail Suni told Gallefoss he hoped Kernel nailed the defendant in the Finnish case for stealing Acidjazzed Evening. Gallefoss Decl., 31, Ex. D. In this e-mail Suni wrote with respect to Gallefosss claims:

he has been unable to retrieve further electronic documents from the old hard drives. Ironically, while both Kernel and the Defendants motions for summary judgment are pending, Defendants have filed a motion to compel production of Gallefosss hard drives. DE 158. By filing such a motion to compel, Defendants concede that the record information in this case does not justify summary judgment in their favor. 14

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Anyways, good luck in December! I hope you guys nail them..I think Ill have to correct some of the illogical claims Chris Abbott made in some forum. My lawyers did not claim the SID version was mine. Remember I had all the info. public on my webpage during the whole legal process, with a special mention of your SID version being different version than my MOD original Id. Suni had, of course, previously stated the SID file belonged to Gallefoss. On January 16, 2007 Suni e-mailed Gallefoss restating his belief that Gallefosss work had been sampled in Do It and encouraging Gallefoss to pursue a legal claim: I dont know how these things work, because I am the original composer and youre the one being sampled. You really need to stay calm.talk to some good lawyers who know intellectual property rights. Next time Im in contact with my lawyer Ill ask what chances you have to form a legal-case. [emphasis added] Exhibit B & DE 143-2 at 100:25-101:3. On January 26, 2007 Suni e-mailed Gallefoss again confirming his belief that Gallefosss SID version had been plagiarized in Do It: At the moment Warner and EMI people are going through the evidence my lawyers sent them. If they admit that Acidjazzed Evening is the composition plagiarized in Do It, then they should admit the sampling of your SID as well. Exhibit C & DE 143-3 at 159:25-160:1. In his deposition in this case, Suni believed Gallefoss used Acidjazzed Evening consistent with the permission Suni gave him. DE 143-3 at 209:24-7. In fact, nothing on the record suggests Suni ever challenged or even complained to Gallefoss about the actions Gallefoss was taking to protect his rights. On February 16, 2007, Suni wrote an article regarding Acidjazzed Evening on his web site <http://www.fairlight.fl>, which further evidences Suni gave his permission to release the arrangement. DE 143-10; Kernel Stmt. of F. at 23. Specifically, Suni wrote: In 2002, however, Glenn Rune Gallefoss (also known as GRG) made and conversion/arrangement of the Acidjazzed Evening which was not released commercially. This arrangement was made on the Commodore 64 computer. It was authorized by me, and Gallefoss explicitly asked for Given these explicit

permission before releasing the arrangement. Id (emphasis added).

statements from the original creator of AJE it cannot be disputed Gallefoss lawfully used Sunis

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work in creating his original arrangement of Acidjazzed Evening on the Commodore 64 computer. On February 5, 2010, Gallefoss e-mailed Suni: I need you to do me a favor, my lawyers do not have a written statement from you that you gave me permission to do AJE. All we have is your statement on your webpage, where it says you gave me permission. I hope you can write such a statement on a piece of paper signed by you. I have attached a word document file with an example on how it can look like. Exhibit D & DE 143-3 at 173:7-15.) On February 7, 2010 Suni replied to Gallefosss February 5, 2010 e-mail : The timingit could not be worse. I wish youd asked me to do this earlier! Before you sued Timbaland and his record label in Florida actually way back in 2007. For over a week Ive been painfully trying to convince person X that Im not working behind the scenes with a certain Norwegian, so I now have very tight limits what I can do. Id. (emphasis added). Suni testified that person X was Mosleys people. DE 143-3 at 173:7174:13. Any change of heart by Suni can be attributable to interference by defendants. Finally, the Finnish court found it was undisputed that Suni gave permission to Gallefoss in Finland. DE 135-7 at 10. 2. A derivative work may be infringed regardless of whether license is exclusive or not. Whether or not Kernel is a non-exclusive licensee, does not bar Kernel from bringing an infringement claim for its rights in the Gallefoss version of AJE. As demonstrated below, being a non-exclusive licensee of Suni does not bar Kernel from bringing a claim against defendants for infringement of its copyright in AJE. Being a non-exclusive licensee protects Kernel from being sued by Suni but it does not protect defendants from claims by Kernel. Mosley either does not understand this important legal principle or distorts it intentionally. The cases cited by Mosley would only be relevant if Kernel was bringing a claim for infringement of Sunis original work, but Kernel is not. Kernel is suing for the infringement of its derivative work. Mosley is missing the point that this is not a case about Sunis copyrights in Sunis version of AJE, but it is about Kernels rights in its own version. Nowhere is it alleged Suni transferred the exclusive right to make derivative works to Gallefoss. For example, Mosley cites Maxwell, Inc. v. Veeck, 110 F.3d 749, 752 (11th Cir. 1999) for the proposition that federal copyright law renders the parties oral agreement unenforceable 16

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insofar as it provided for the transfer of an exclusive copyright. DE 137 at 16. Maxwell involved a baseball team for whose promotion a song had been written. The composer of the song brought a claim against the team, when the team failed to honor an oral agreement to compensate the composer and to give him credit at performances of the song at games. The court refused to allow the composer to allege infringement in a federal copyright since he had given the team a non-exclusive license to play the song at its games. Nowhere in that case was there an allegation of a violation of a copyright in a derivative work. Mosleys reliance on the concept of a nonexclusive license is illogical. It is simply not applicable in the context of an author of a derivative work suing for infringement of its rights by a third party. Mosley next cites Micro Star v. Formgen, Inc., 154 F.3d 1107, 1113 (9th Cir. 1998) for the proposition that Section 204 of the Copyright Act requires the transfer of the exclusive rights granted to copyright owners (including the right to prepare derivative works) to be in writing. DE 137 at 16. Nowhere in the case does it state that the maker of a derivative work may not sue the infringer of his or her work, simply because the maker of the derivative work holds a nonexclusive license. 3. Third parties cannot dispute whether or not valid permission was given, when licensor and licensee agree.

In this case, Gallefoss and Suni agree that Suni gave Gallefoss permission to create AJE and Mosley the infringer - tries to dispute that fact. The decision of the Finnish Court, which defendants rely on in other places, DE 135-7 at 10, conclusively established that Suni gave permission to Gallefoss to create his own version of AJE, which is a derivative work. It is contrary to established doctrine in this area for Mosley to dispute this fact. Courts have held that in situations in which the copyright holder appears to have no dispute with its licensee on [the issue of transfer], it would be anomalous to permit a third party infringer to invoke this provision against the licensee. Eden Toys, Inc. v. Florelee Undergarment Co., Inc., 697 F.2d 27, 36 (2d Cir. 1982); accord Imperial Residential Design, Inc. v. Palms Dev. Group, Inc., 70 F.3d 96, 99 (11th Cir. 1995) (adopting the rule of Eden Toys); Kenbrooke, 690 F. Supp. at 301 (applying the rule of Eden Toys); 3 Nimmer, 10.03[A][3] at 10-38.

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4.

The statute of limitations has run on Sunis ability to challenge Gallefosss ownership of Gallefosss arrangement and sound recording.

Mosley claims that Suni did not give permission to Gallefoss to create AJE. DE 137 at 12. There are two problems with this argument. First, this is not Mosleys claim to make and second, even if it were, it is barred by the statute of limitations. [A] party generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (internal quotation marks omitted). A party may assert a claim on behalf of another only when the party asserting the right has a close relationship with the person who possesses the right and when there is a hindrance to the possessors ability to protect his own interests. Id. at 130. Mosley is asserting Sunis right by claiming Suni did not give permission to Gallefoss. As discussed above, this is not true. Moreover, Suni himself has never complained about Gallefosss actions regarding Acidjazzed Evening. Even if Suni had wanted to complain, though, the statute of limitations has run in the United States for Suni to assert his own rights over Gallefosss SID arrangement and sound recording. A claim for copyright infringement accrues only once, and if an action is not brought within three years of accrual, it is forever barred. Roger Miller Music, Inc. v. Sony/ATV Publg, LLC, 477 F.3d 383, 390 (6th Cir. 2007). Under the Copyright Act, a claim for copyright infringement or ownership has a three-year statute of limitations. 17 U.S.C. 507(b). Gallefoss has been openly claiming authorship of his SID version since 2002. See Rubel Decl., DE 162-1 at 40 (screenshot of display from SID emulator listing Glenn Rune Gallefoss as author). Suni would have had 3 years to challenge Gallefosss claim of ownership under U.S. copyright law. After three years, the statute of limitations has run on it. Defendants cannot make a claim that Suni cannot make. Even if Gallefosss initial claim of ownership does not qualify, he expressly claims ownership in 2007 in an e-mail from Gallefoss to Suni dated February 6, 2007. Exhibit E. In this e-mail Gallefoss advises Suni: Timbaland recorded my SID song and claims he recorded it. (emphasis added). Clearly in this e-mail Gallefoss is claiming ownership of the version of AJE that was copied by Mosley and Suni does not object. Three years from the date of this e-mail and the statute of limitations on a claim of ownership thus elapsed in February 2010. Since Suni cannot legally dispute Gallefosss ownership of AJE, Mosley should not be permitted to. 18

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III.

Defendants do not possess an implied license. Mosley claims that Defendant possessed an implied license to use Gallefosss AJE. DE

137 at 19. This claim cannot be further from the truth. Mosley makes an incredible leap of logic by arguing that because Gallefoss did not object to the distribution of his version of AJE over the internet on the High Voltage website, he gave his permission to Mosley to infringe his rights in AJE. Id. The primary defect with Mosleys argument is that there is no record evidence that Gallefoss ever gave permission to Mosley, whether by overt act or lack of objection. Mosley cites several cases for the proposition that an implied license can be created when one party (1) creates a work at another persons request; (2) delivers the work to that person; and (3) intends that the person copy and distribute that work. Id. Mosley cannot prove any of these three factors with respect to Gallefosss AJE in relation to its Do It. As such it claims that an implied license may arise where consent [is] given in the form of mere permission or lack of objection. Id at 19. Mosley has not presented any record evidence to establish that it possess an implied license in the Gallefoss version of AJE. Suni told Gallefoss that it was Gallefosss version of AJE that was copied. Gallefoss never gave anyone let alone Mosley - permission to use it. Also, curiously, Mosley does not explain why, under its theory, Gallefoss would not have an implied license from Suni. Gallefosss AJE is a derivative work based on Sunis original work, made with Sunis permission. Kernel Stmt of F., 5. The Finnish court found it was undisputed Suni gave

permission to Gallefoss in Finland. DE 135-7 at 10. Gallefoss first found out about Defendants infringement after July 31, 2006 in an e-mail from Suni that stated that the intro to AJE was stolen by defendants for their song Do It. Gallefoss Decl., 143-4 28 & Ex. A In that e-mail Suni informs Gallefoss that defendants Do It was sampled from the SID version you [Gallefoss] made Id. [emphasis added]. Suni subsequently encouraged Gallefoss to file suit for the infringement of Gallefosss rights in his version of AJE. Gallefoss Decl., 143-4 29 & Ex. 29 and a case was subsequently brought in Finland. DE 135-7 at 10. If this is not an objection to Defendants illegal use of AJE, it is hard to imagine what else is. There is no record evidence that Gallefoss gave anyone permission to infringe his rights in his version of AJE. Even though he was aware that his work was available on the online High Voltage SID collection, it does not mean that he gave his permission to defendants to infringe his rights.

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The cases cited by Mosley are easily distinguished. Failure to object to unknown parties downloading his AJE from a website does not satisfy the requirements of the legal theory on which Mosley seeks to proceed. The legal requirement is to show that Gallefoss knew of Mosleys infringement and permitted Mosley to carry on without objection. Clearly as soon as Gallefoss found out he objected by filing a lawsuit as quickly as he could have. Similarly, two other cases cited in support of its argument to an implied license, Field v. Google, Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006) and Parker v. Yahoo!, Inc., 88 U.S.P.Q.2d 1779, 2008 WL 4410095 (E.D.Pa. 2008) involved specific knowledge of the alleged infringers activities and a failure by the owner to object to continued infringements. DE 137 at 19. Both of these cases involved claims by authors of certain works against internet search engines. Both cases involved claims that the popular search engines Google and Yahoo respectively violated copyright law when they permitted the works to be displayed on the search engines. Field v.

Google Inc., 412 F. Supp. 2d 1106, 1116 (D. Nev. 2006); Parker v. Yahoo!, Inc., No. 07-2757, 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sept. 25, 2008). The courts noted that both Google and Yahoo had certain internet protocols that are were known to the plaintiffs in those cases. Both Field and Parker knew that because of certain actions they both took, under the internet protocols Google and Yahoo had in place, the search engines would interpret the authors actions as permission for Google and Yahoo to display their works. To simplify, when the authors put their works online, they were required to make certain choices under electronic protocols. They could either choose to prevent the search engines from displaying copies of their works or not. They made the conscious choice to have the search engines display their works.17 Both Parker and Field involved plaintiffs that knowingly did not take measures that Google and Yahoo had in place that could have prevented the alleged violations from taking place. Those cases involved direct interaction between the search engines and the parties

claiming infringement against the search engines. In this case there has been no demonstration by Mosley that Gallefoss gave them any kind of permission. At a minimum Mosley should have to show that Gallefoss knew that Mosley would interpret Gallefosss failure to object to third
17

Under these circumstances the District of Nevada held that Google could have reasonably interpreted plaintiffs conscious choice to be the grant of a license to Google for that use. Field at 1116. The Eastern District of Pennsylvania found that Yahoo could reasonably interpret the plaintiffs failure to abide by Yahoos procedures as a grant of a license to display his works. Parker v. Yahoo!, Inc., 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sept. 25, 2008). 20

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parties downloading AJE from the internet as granting Mosley an implied license. It is highly unlikely that Mosley can make such a demonstration because: (1) there simply was no contact between defendants and Gallefoss; (2) Gallefoss never took steps to make his work available online; (3) even after Gallefoss became aware that AJE was available for download online, he had no knowledge that defendants would interpret this fact as permission to make an infringing work. In this case Mosley has not shown that Gallefoss knew of the infringement by defendants and failed to act. Nor has Mosley shown that defendants could have reasonably interpreted Gallefosss actions to amount to granting a license to defendants. Parker v. Yahoo!, Inc., 2008 U.S. Dist. LEXIS 74512 (E.D. Pa. Sept. 25, 2008). Further, Mosley claims not to know the origin of AJE. Mosley could not have been relying on the songs being freely available online as permission to copy it. Conclusion For the reasons set forth above, this court should deny Mosleys motion for summary judgment. Respectfully submitted, __/s/ Ethan J. Wall_____ Bruce A. Christensen (Fl. Bar No. 0198188) bchristensen@richmangreer.com Ethan J. Wall (Fl. Bar No. 045158) ewall@richmangreer.com RICHMAN GREER P.A. Miami Center, Suite 1000 201 South Biscayne Boulevard Miami, Florida 33131 Attorneys for Plaintiff KERNEL RECORDS OY __/s/ Richard S. Busch________ Richard S. Busch (Pro Hac Vice) KING & BALLOW 315 Union Street, Suite 1100 Nashville, TN 37201 615/259-3456 (tel) 615/248-2860 (fax)

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CERTIFICATE OF SERVICE I HEREBY certify that on June 21, 2010, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notice of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. By: ___/s/Ethan Wall______ Ethan J. Wall

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CASE NO. 09-21597 CIV TORRES SERVICE LIST Richard S. Busch (Pro Hac Vice) KING & BALLOW 315 Union Street, Suite 1100 Nashville, TN 37201 Telephone: (615)259-3456 Attorneys for Plaintiff KERNEL RECORDS OY Karen L. Stetson, Esquire Jonathan L. Gaines, Esquire Gray Robinson, P.A. 1221 Brickell Avenue Suite 1600 Miami, Florida 33131 Telephone: (305) 416-6880 Facsimile: (305) 416-6887 William L. Charron Pryor Cashman LLP 7 Times Square New York, New York 10036 Telephone: (212) 421-4100 Facsimile: (212) 326-0806

Bruce A. Christensen, Esquire bchristensen@richmangreer.com Ethan Wall, Esquire ewall@richmangreer.com Richman Greer P.A. Miami Center, Suite 1000 201 South Biscayne Boulevard Miami, Florida 33131 Telephone: (305) 373-4000 Facsimile: (305) 373-4099 Attorneys for Plaintiff KERNEL RECORDS OY

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