Viral DRM LLC v. Jardin

Background

Viral DRM LLC alleged that Aurelien Jardin and Societe Editrice du Monde operated the YouTube channel LE HUFFPOST and copied and downloaded Viral DRM’s copyrighted works from YouTube. Viral DRM alleged that the defendants used the content to advertise and promote the channel, increase subscribers, earn advertising revenue, and conduct other money-making activities. Viral DRM said it notified YouTube and the defendants of the alleged infringement through notices under the Digital Millennium Copyright Act.

Viral DRM moved for permission to use alternative service under Federal Rule of Civil Procedure 4(f)(3). It proposed serving the defendants by email and by posting the complaint and other case documents on its counsel’s website. It also requested WhatsApp messages as an additional backup method.

Legal Standard

Rule 4(f)(3) allows a court to order other methods for serving an individual outside the United States, so long as federal law does not provide otherwise and the method is not prohibited by an international agreement. The method must also satisfy due process, meaning it must be reasonably calculated under the circumstances to notify interested parties about the case and give them an opportunity to object.

Court’s Analysis

The court determined that the circumstances justified alternative service. It found that service by email, website posting, and WhatsApp was not generally prohibited by the Hague Service Convention, which applies because the United States and France are parties to it.

The court approved email service because Viral DRM presented evidence that the defendants had recently used the identified email address to submit counter-notifications to YouTube concerning the alleged infringement. Viral DRM also stated that the defendants were required to maintain accurate email addresses for communications involving Google, YouTube, copyright takedowns, counter-notifications, and payments.

The court approved website posting because Viral DRM’s attorney declared that the plaintiff would post the court papers on the website and email the website address to the defendants. The court found this method reasonably likely to notify the defendants and give them an opportunity to respond.

The court rejected WhatsApp service. Viral DRM stated only that the defendant “might” have a WhatsApp account connected to a phone number provided in the counter-notifications. Because Viral DRM offered no evidence that the defendants had WhatsApp accounts or could be reached through WhatsApp, the court found that speculation did not show that WhatsApp service would likely reach them or satisfy due process.

Disposition

The court GRANTED IN PART and DENIED IN PART Viral DRM’s Motion for Alternative Service. The motion was GRANTED to the extent it sought service by email and website posting. It was DENIED WITHOUT PREJUDICE to the extent it sought to use WhatsApp as a backup method. Viral DRM may serve the complaint and summons by email at the address identified in the order and by posting them on plaintiff’s counsel’s website. Viral DRM must file proof of service within 10 days of email service, and service will be effective as of the date the proof of service is filed.