Viral DRM, LLC v. Thanh

Background

Viral DRM, LLC alleged that Uong Sy Thanh, a citizen of Vietnam, downloaded and copied Viral DRM’s copyrighted extreme-weather video materials from YouTube and re-uploaded infringing versions to his YouTube channel or channels. Viral DRM alleged that the activity helped advertise and grow the channel and generate advertising revenue. It sought permission to serve Thanh through an email address that Google allegedly provided in response to a subpoena, along with posting the legal papers 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 methods such as email if the method is not prohibited by an international agreement. The method must also satisfy due process, meaning it must be reasonably likely to tell the defendant about the case and give the defendant an opportunity to respond.

The court explained that the Hague Service Convention applied because the United States and Vietnam are parties to it. The court also stated that the Convention itself does not prohibit court-ordered service by email, but that fact did not automatically entitle Viral DRM to use email service.

Reasons for the ruling

The court found that Viral DRM had not shown that email service would likely provide Thanh with actual notice. 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 it had not authorized Viral DRM to subpoena Google in this case, making it unclear how the address had been identified.

The court further found that Viral DRM had not shown that any email address associated with Thanh was legitimate. Although Viral DRM argued that Thanh would need a valid email address to communicate with Google and YouTube, the complaint alleged that information in a YouTube counter-notice was fraudulent. That counter-notice listed NA Weather as registered to Nguyen Minh Chien, who allegedly lived in Vietnam and used jasonbrownad@gmail.com. Because Viral DRM sued Thanh rather than Chien, the court said Viral DRM needed to explain the discrepancy and provide evidence that Google supplied a different address used to communicate with Thanh. Viral DRM also did not show that it had tried to contact Thanh at the listed or another email address. Finally, the motion referred to multiple electronic contacts, while the supporting declaration referred only to one email address, leaving the number of possible addresses unclear.

Disposition

The court denied without prejudice Viral DRM’s motion to serve Thanh by alternative means. The order disposed of Docket No. 11. The opinion did not decide the underlying copyright allegations.