Viral DRM LLC v. Lepetyuk

Background

Viral DRM LLC alleged that it syndicates and licenses video content depicting extreme weather events. It alleged that Yaroslav Lepetyuk downloaded and copied its copyrighted materials from YouTube, edited them, removed copyright-management information, and uploaded infringing versions to YouTube channels, including the channel OPEN YOUR EYES. Viral DRM further alleged that the activity was intended to promote the channel, increase subscribers, and earn advertising revenue.

Viral DRM asked for permission to serve Lepetyuk, whom the opinion identifies as a citizen of Ukraine, by email and by posting on a designated website. Viral DRM said it wanted to use an email address that Google had supposedly provided in response to a subpoena.

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 alternative service, including email, if the method is not prohibited by an applicable international agreement. The method must also satisfy due process, meaning it must be reasonably calculated to notify the defendant about the lawsuit and give the defendant an opportunity to respond.

The court explained that the United States and Ukraine are parties to the Hague Service Convention. The court also stated that the Convention itself does not prohibit court-ordered email service, but that a plaintiff still must show that the proposed method satisfies Rule 4(f) and due process.

Court’s analysis

The court found that Viral DRM had not made an adequate showing that email service would provide Lepetyuk 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 granted Viral DRM permission in this action to subpoena Google, making it unclear how the proposed address had been obtained.

The court further found that Viral DRM had not shown that the address was legitimate. Viral DRM argued that Lepetyuk would have needed to provide Google with a valid email address to handle copyright notices, counternotices, payments, and communications about his YouTube channel. But Viral DRM had alleged that information in Lepetyuk’s counternotice was fraudulent. The court noted that Viral DRM did not explain which information was inaccurate or fraudulent or whether Google had provided a different address.

The court also noted that Viral DRM had not shown that it had attempted to communicate with Lepetyuk at the email address appearing in the counternotices, or at another address, to confirm that the address was legitimate and likely to reach him. Finally, the motion referred to multiple electronic means of contact, while the supporting declaration referred only to one email address. The court said it was unclear whether that difference was a typographical error or reflected multiple email addresses.

Disposition

The court concluded that Viral DRM’s motion did not satisfy Rule 4(f) and constitutional due-process requirements. Judge Jacquelyn Scott Corley denied without prejudice Viral DRM’s motion to serve Lepetyuk by alternative means. The order stated that it disposed of Docket No. 12. The opinion did not decide whether Lepetyuk infringed Viral DRM’s copyrights.