Delaware Court on case of first impression holds photographs published on web in Germany not "published" in US

From Loeb & Loeb LLP: "District court, addressing what it determined to be an issue of first impression, holds that posting a work created outside the U.S. on a website outside the U.S. by a foreign national does not constitute publishing the work simultaneously in the U.S., and therefore plaintiff did not need to register his photographs before filing suit for infringement in a U.S. court."

http://www.loeb.com/news/CaseList.aspx?Type=ip

The opinion states that publishing the work (photos) in Germany is not "publishing" for purposes of the requirement for registration needed on US works in order to bring suit in the US, even though after published on the web in Germany the photos were immediately available on the web in the US.

The court states on page 8, "Thus, in a case of first impression, this Court must consider the correlation between the posting of foreign copyrighted works on a foreign website and the copyright holder’s ability to file suit for infringement in the United States pursuant to the United States Copyright Act."

The court has held that even though, in reality, when the photos were published in Germany they were simultaneously published in the U.S., "as a matter of statutory law" they were *not* published in the U.S.

The opinion doesn't describe that copyright registration is a relatively easy process, and registration is needed to bring suit, not to have copyright protection.

From the opinion:
“What appears to be a simple premise actually joins an issue of first impression not addressed by any court. Defendants contend that plaintiff’s 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 . . . 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 . . . Professor Cotter explains, however, that the determination of the 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 . . . The Court does not need to delve into yet another unsettled issue, however, because even assuming that the German website ‘published’ plaintiff’s photographs, the Court holds that as a matter of U.S. statutory law the photographs were not published simultaneously in the United States.” Moberg v 33T LCC, US District Court Delaware