Viral DRM LLC v. Prokopenko

Background

Viral DRM LLC alleged that it syndicates and licenses video content showing extreme weather events. It alleged that Yurii Prokopenko, identified as a citizen of Ukraine, downloaded and copied Viral DRM’s copyrighted materials from YouTube, edited them, removed copyright-management information, and uploaded infringing versions to YouTube channels identified as LATEST WEATHER and TOUGH WEATHER US. Viral DRM also alleged that the activity was intended to promote the channels, increase subscribers, and earn advertising revenue.

Viral DRM said it sent copyright takedown notices to YouTube and Prokopenko, and that Prokopenko responded with false and misleading information. Viral DRM asked the court for permission to serve Prokopenko through email and by posting notice on a designated website. It proposed using an email address that Google allegedly 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 alternative methods of service, including email, if the method is not prohibited by an international agreement and is appropriate under the circumstances.

The court explained that alternative service must also satisfy constitutional due process. That means the method must be reasonably calculated to inform the defendant that the case is pending and give the defendant an opportunity to respond. The court found that the Hague Service Convention applied because the United States and Ukraine are parties to it, but concluded that the Convention did not itself prohibit court-ordered email service.

Court’s analysis

The court found that Viral DRM had not shown that email service was reasonably likely to reach Prokopenko. First, 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 proposed address had been identified.

Second, Viral DRM did not provide evidence that an email address associated with Prokopenko was actually a reliable way to contact him. The complaint alleged that information in a YouTube counter-notice was fraudulent. That counter-notice identified Sergey Lineev of Kyiv, Ukraine, and listed an email address associated with LATEST WEATHER. Because Viral DRM named Prokopenko rather than Lineev as the defendant, the court found that Viral DRM appeared to consider the information inaccurate, but had not explained the discrepancy or shown that Google supplied a different address used to communicate with Prokopenko.

Third, Viral DRM did not show that it had attempted to contact Prokopenko through the listed address or another address to confirm that the address was legitimate. Finally, the motion referred to multiple electronic means of contact, while the supporting declaration referred only to a single email address. The court found it unclear whether this difference was a typographical error or reflected multiple email addresses.

Ruling

The court concluded that Viral DRM’s motion did not satisfy Rule 4(f) or constitutional due process. It denied without prejudice the motion to serve Prokopenko by alternative means and stated that the order disposed of Docket No. 14. The opinion did not decide the underlying copyright allegations.