Global Brother SRL v. Kaur

Background

Global Brother SRL filed a copyright infringement action against Will Kaur, George Andres Smith, Erika Tillis, and unnamed defendants. Global Brother originally relied on an address in a copyright takedown counter-notice submitted through Shopify. The address turned out to be Mr. Smith's residence, not the address of the other defendants. Global Brother later dismissed Mr. Smith and successfully served Ms. Tillis, but it was unable to serve Mr. Kaur.

Global Brother sought permission to serve Kaur by emailing the documents to pixelshophub@gmail.com. Global Brother had communicated with someone using that address who claimed to be associated with Pixel Shop Hub and to know about the alleged infringement. That person used the name “Elizabeth Miller,” which Global Brother suspected was false. Global Brother alternatively sought permission to serve Shopify with a third-party subpoena before the parties' required initial discovery conference.

Alternative service

The court denied the motion for alternative service. Under the applicable rules, email service must be reasonably likely to provide actual notice, and the plaintiff must show an association between the email address and the defendant. The court found that Global Brother had not shown that pixelshophub@gmail.com was associated with Will Kaur. The uncertainty about whether “Will Kaur” was the alleged infringer's real name, together with the apparently false information in the counter-notice, made email service premature.

Third-party subpoena

The court granted Global Brother's motion for leave to serve a Rule 45 subpoena on Shopify. The court found good cause for expedited discovery—limited information-gathering before the normal discovery process—because Global Brother showed that it had taken steps to locate the defendant, had identified the defendant sufficiently for a federal lawsuit, had a claim that could withstand a motion to dismiss, and was reasonably likely to identify the defendant through discovery. The court also noted Global Brother's representation that it had satisfied the copyright-registration requirement for filing the lawsuit.

Requirements and limits

The subpoena may require Shopify to provide the information listed in the subpoena's attachment, and Global Brother must attach this order. The subpoena must allow Shopify at least 30 days to respond. Shopify must notify the affected user or users by a reasonable method, including written notice sent to a last-known address by first-class mail or overnight service. Global Brother may use the disclosed information only to identify the alleged infringer and serve process in this action. An affected party or user may object to the subpoena or seek a protective order.

Disposition

The court denied the motion for alternative service and granted the motion for leave to serve the third-party subpoena.