Way to first publish a work outside of the US in the Internet era

Question

Suppose that I live outside of the US and have a standalone website where I post original works created by myself: photos, articles, software sources, music etc. The site is hosted outside of the US and is publicly available worldwide.

For the purposes of US copyright law, if all those works were first published not on the Internet but on physical media (e.g. books, CDs) in my home country, they would not require registration in the US Copyright Office for the copyright to be accepted by US courts:

in the United States, works first published outside the United States do not need to be registered prior to filing a copyright infringement claim. In this way, foreign works are provided greater protection than U.S. works, which must be registered in order to obtain a judgment under the Copyright Act.

But because I first publish the works online and the site is available worldwide, copyright protection in the US is not available to me unless I register every bit of work there:

In several District Court cases, the question has arisen as to whether a work first published on a foreign website was actually simultaneously published world-wide. If the work was first published both in the United States and another country, under U.S. copyright law, the work is considered a U.S. work requiring registration prior to litigation.

So, is there a way around that? For example, if I configure my website to not initially show new pieces of work in the US (filtered by GeoIP) and only open them for US visitors 2-3 days later (to go beyond any timezone differences), will that count as first published outside of the US? What kind of proof of this would I need to retain in order to show it in a US court should I ever have to protect my copyright there?

Answer 1

First, you need to wait at least 31 days - from the Berne Convention:

Article 3 (4) A work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication.

I don't know of any case law on the matter but a clearly stated intention to publish in different jurisdictions at different times and some technical effort to prevent access from other jurisdictions (e.g. by GeoIP restriction) should be enough to support a claim that there was not simultaneous publication. Publication is something that must be actively done by the copyright owner so even if your technical protection was circumvented that would be an unlawful act by a third party and should not count as publication.