Viral DRM LLC v. Rizky Fadilah

Background

Viral DRM LLC alleged that Rizky Fadilah downloaded and copied its copyrighted extreme-weather video content from YouTube, edited the content, removed copyright-management information, and uploaded infringing versions to YouTube channels. Viral DRM also alleged that Fadilah used the videos to promote a YouTube channel, increase subscribers, and earn advertising and other business income.

Viral DRM asked for permission to serve Fadilah through an email address that it said Google provided in response to a subpoena and through a designated website. Fadilah was alleged to be a citizen of Russia. Viral DRM argued that email service was appropriate because Fadilah conducted business online and used email.

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 order an alternative method of service if the method is not prohibited by an international agreement. The method must also satisfy due process, meaning it must be reasonably likely to inform the defendant about the lawsuit and give the defendant an opportunity to respond.

The court noted that the Hague Service Convention applies because the United States and Russia are parties to it. The court also explained that the Convention itself does not necessarily prohibit court-ordered email service, but that a plaintiff must still show that email service is reasonably likely to provide actual notice.

Court’s analysis

The court found that Viral DRM had not made that showing. Viral DRM did not identify the email address or addresses it intended to use and did not attach Google’s response to the subpoena. The court also noted that Viral DRM had not been granted permission in this case to subpoena Google, making it unclear how the address had been identified.

The court further found that Viral DRM had not shown that the email address was legitimate or likely to reach Fadilah. A counter-notice identified the YouTube channel as registered to Alexey Butko and listed an email address associated with that person, while Viral DRM had named Fadilah as the defendant. Viral DRM did not explain the discrepancy or provide evidence that Google supplied a different address used to communicate with Fadilah. It also did not show that it had tried contacting Fadilah at the listed address or another address to confirm that the address was valid.

Finally, the court observed that Viral DRM’s motion referred both to a single email address and to multiple electronic contacts, while the supporting declaration referred only to one email address. The court said it was unclear whether this difference was a typographical error or reflected multiple addresses.

Disposition

Judge Corley denied without prejudice Viral DRM’s motion to serve Fadilah by alternative means. The order disposed of Docket No. 46. It did not decide whether Fadilah infringed Viral DRM’s copyrights.