Viral DRM LLC v. Francisco Morante Fuentes
- Jacquelyn Corley
- 3:23-cv-05045
- U.S. District Court · Northern District of California
- 5
Viral DRM v. Fuentes: Judge Corley denied without prejudice the request to serve the defendant by email and website posting.
Viral DRM LLC may not use the proposed email and website-posting methods to serve Francisco Morante Fuentes based on this order; the motion was denied without prejudice.
What happened
In Viral DRM LLC v. Francisco Morante Fuentes, Viral DRM said the defendant copied its copyrighted weather videos and uploaded altered versions to YouTube. Viral DRM asked to notify him by email and by posting on a website.
The court found that email service was not barred by the international treaty governing service between the United States and Spain. But Viral DRM did not identify the email addresses it would use, attach Google's response identifying the address, or provide enough evidence that the address was legitimate and likely to reach the defendant. The motion also contained unclear references to one or multiple email addresses and another defendant.
Judge Jacqueline Scott Corley denied without prejudice the motion for alternative service because Viral DRM had not shown that the proposed service complied with the federal service rule or constitutional notice requirements.
The detailed version
- Viral DRM LLC v. Francisco Morante Fuentes · No. 3:23-cv-05045
- Jacquelyn Corley
- Apr. 11, 2024
Background
Viral DRM LLC alleged that Francisco Morante Fuentes downloaded and copied its copyrighted extreme-weather video content, edited it, removed copyright-management information, and uploaded infringing versions to YouTube. Viral DRM alleged that the activity promoted the FULLTOPS YouTube channel, increased its subscribers, and generated advertising revenue. After Viral DRM sent copyright takedown notices, it alleged that the defendant responded with false and misleading information.
The court had previously allowed Viral DRM to subpoena Google for information identifying the person operating the YouTube channel. Viral DRM then sought permission to serve Fuentes by email using an address Google provided and by posting notice on a designated website.
Legal standard
Federal Rule of Civil Procedure 4(f) governs service on an individual in a foreign country. Under Rule 4(f)(3), a court may authorize an alternative method of service if an international agreement does not prohibit it and the method is reasonably calculated to notify the defendant about the lawsuit and give the defendant an opportunity to respond. The court emphasized that the decision to authorize alternative service is within the court's discretion.
The United States and Spain are parties to the Hague Service Convention. The court concluded that the Convention did not itself prohibit court-ordered service by email. But that conclusion did not automatically entitle Viral DRM to use email service; Viral DRM still had to show that the proposed method would likely provide Fuentes actual notice.
Court's analysis
The court found Viral DRM's showing inadequate. Viral DRM did not identify the email address or addresses it intended to use or attach Google's response to the subpoena. Although Viral DRM referred to an email address associated with the FULLTOPS channel, it did not explain whether that address was inaccurate or fraudulent, whether Google supplied a different address, or whether Viral DRM had tried contacting Fuentes through the address to confirm that it was legitimate and active.
The court also noted that Viral DRM referred in some places to a single email address and elsewhere to multiple electronic means of contact. The supporting declaration referred only to one email address and also mentioned a different defendant. The court further noted that the motion did not address Viral DRM's earlier concern that Fuentes might change ownership of the YouTube channel if he learned about the lawsuit.
Disposition
The court held that Viral DRM's motion did not satisfy Rule 4(f) or constitutional due-process requirements. It denied without prejudice the motion to serve Fuentes by alternative means. The opinion states that the order disposes of Docket No. 42, although the motion identified in the order is Docket No. 47.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.