Viral DRM LLC v. Margarita

Background

Viral DRM LLC alleged that Shubstor Margarita downloaded, edited, and re-uploaded infringing versions of Viral DRM’s copyrighted extreme-weather video content to YouTube. Viral DRM also alleged that Margarita removed copyright-management information and used the videos to promote the YouTube channel WHEN GOD IS ANGRY, increase subscribers, and earn advertising revenue.

Viral DRM sought permission to serve Margarita in Ukraine by email and by posting notice on a designated website. It proposed using an email address that Viral DRM said Google 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 authorize an alternative method of service if it is not prohibited by an international agreement. The method also must satisfy due process, meaning it must be reasonably calculated to notify the defendant about the case and give the defendant an opportunity to respond.

The court explained that the Hague Service Convention applies because the United States and Ukraine are parties to it. The court stated that the Convention itself does not prohibit court-directed email service, but that this does not automatically entitle a plaintiff to use email. The plaintiff must still show that the proposed method is appropriate and 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 it had not authorized Viral DRM to subpoena Google in this action, making it unclear how the proposed email address had been identified.

The court further found no evidence that the proposed address was legitimate or likely to reach Margarita. Viral DRM argued that Margarita would have needed a valid email address to submit counternotices, receive payment information, and communicate with YouTube, but Viral DRM had also alleged that information in Margarita’s counternotice was fraudulent. The counternotice identified the channel as registered to Kashper Viacheslav, who allegedly lived in Ukraine and used the email address whengodisangry@gmail.com. Viral DRM did not explain this discrepancy or provide evidence that Google supplied a different address used to communicate with Margarita.

The court also noted that Viral DRM had not shown that it tried to contact Margarita at the identified address or another address to confirm that it was legitimate. Finally, the motion referred both to a single email address and to multiple electronic means of contact, while the supporting declaration referred only to one email address. The court found that this inconsistency was unexplained.

Disposition

The court denied without prejudice Viral DRM’s motion to serve Margarita by alternative means. The order disposed of Docket No. 14. It did not decide the merits of Viral DRM’s copyright allegations.