1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VIRAL DRM LLC, Case No. 3:24-cv-00739-JSC
8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. FOR ALERNATIVE SERVICE
10 YURII PROKOPENKO, Re: Dkt. No. 14 Defendant. 11
12 13 Plaintiff Viral DRM LLC syndicates and licenses video content of extreme weather events 14 from around the world. Defendant, a citizen of Ukraine, allegedly downloaded and copied 15 Plaintiff’s copyrighted materials from YouTube, and then re-uploaded infringing versions of 16 Plaintiff’s copyrighted media content to his YouTube channel(s). Plaintiff seeks leave to serve 17 Defendant via email and posting on a designated website. (Dkt. No. 14.) After carefully 18 considering Plaintiff’s motion and the relevant legal authority, the Court concludes oral argument 19 is unnecessary, see Civ. L.R. 7-1(b), and DENIES WITHOUT PREJUDICE the motion for 20 alternative service. 21 BACKGROUND 22 Viral DRM alleges Yurii Prokopenko operates the YouTube Channels LATEST 23 WEATHER and TOUGH WEATHER US. (Dkt. No. 1 at ¶ 25.) Defendant is alleged to have 24 “downloaded Viral DRM’s Works, [] edited the Works, removed Viral DRM’s copyright 25 management information, and then uploaded infringing versions of Viral DRM’s Works to 26 YouTube.” (Id. at ¶ 27.) Defendant did so “to advertise, market and promote their YouTube 27 channel, grow their YouTube channel subscriber base, earn money from advertising to their 1 copyrighted media content.” (Id. at ¶ 28.) Viral DRM notified YouTube and Defendant of the 2 allegedly infringing behavior by filing DMCA take-down notices, but Defendant responded with 3 false and misleading information. (Id. at ¶¶ 45-46.) 4 Plaintiff seeks leave to serve Defendant through alternative email service to the email 5 address Google provided in response to a subpoena as well as by website posting. (Dkt. No. 14.) 6 Plaintiff contends “allowing e-mail service in the present case is appropriate and comports with 7 constitutional notions of due process, particularly given Prokopenko’s decision to conduct his 8 illegal businesses using the Internet and utilizing e-mail as a primary means of communication.” 9 (Dkt. No. 14 at 10.) 10 DISCUSSION 11 Federal Rule of Civil Procedure 4(f) provides the applicable authority for serving an 12 individual in a foreign country. Under Rule 4(f)(3), courts can order service through a variety of 13 methods, “including publication, ordinary mail, mail to the defendant’s last known address, 14 delivery to the defendant’s attorney, telex, and most recently, email[,]” so long as the method of 15 service is not prohibited by an international agreement. Rio Props., Inc. v. Rio Intern. Interlink, 16 284 F.3d 1007, 1016 (9th Cir. 2002) (citation omitted). “However, the fact that an alternative 17 method of service is not prohibited by international agreement does not mean that the plaintiff is 18 entitled to use such a method under Rule 4(f)(3).” Keck v. Alibaba.com, Inc., 330 F.R.D. 255, 19 257–58 (N.D. Cal. 2018). It is within a court’s “sound discretion” to determine whether “the 20 particularities and necessities of a given case require alternate service of process under Rule 21 4(f)(3).” Rio Properties, 284 F.3d at 1016. 22 To comport with due process, alternate service of process must be “reasonably calculated 23 to apprise interested parties of the pendency of the action and afford them an opportunity to 24 present their objections.” Id. at 1016–17 (citation omitted). Service by email may be proper when 25 (1) international agreement does not prohibit service by email, and (2) service by email is 26 reasonably calculated to provide actual notice to the defendant. See D.Light Design, Inc. v. Boxin 27 Solar Co., No. C–13–5988 EMC, 2015 WL 526835, at *1 (N.D. Cal. Feb. 6, 2015) (collecting 1 International agreement does not prohibit service by email here. The Hague Service 2 Convention governs because the United States and Ukraine are both parties to this multilateral 3 treaty. See Hague Service Convention Status Table, 4 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Apr. 11, 2024). 5 The Convention’s language is mandatory “in all cases, in civil or commercial matters, where there 6 is occasion to transmit a judicial or extrajudicial document for service abroad.” Volkswagenwerk v. 7 Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (internal quotation marks omitted). The 8 Convention authorizes service in several ways, including (a) through a receiving country’s central 9 authority, (b) by diplomatic and consular agents, through consular channels, on judicial officers in 10 the receiving country, or direct service by postal channels, unless the receiving country objects, 11 and (c) by additional methods of service that a signatory country may designate within their 12 borders either unilaterally or through side agreements. Facebook, Inc. v. 9 Xiu Network 13 (Shenzhen) Technology Co., Ltd., 480 F. Supp. 3d 977, 980 (2020). “Nothing in the Hague 14 Convention itself prohibits alternative service by email, when such service is directed by a court.” 15 See Google LLC v. Does 1-3, No. 23-CV-05823-VKD, 2023 WL 8851619, at *2 (N.D. Cal. Dec. 16 21, 2023) (collecting cases). 17 Plaintiff, however, has not made an adequate showing service by email comports with due 18 process. As a threshold matter, Plaintiff has not identified the email address(es) it intends to use to 19 serve Defendant. Plaintiff indicates it plans to use the email address Google provided in response 20 to a subpoena, but it has not attached a copy of Google’s response. See, e.g., Google, 2023 WL 21 8851619, at *2 (relying on Google subscriber records submitted with the motion for alternative 22 service demonstrating the accounts were active and recently accessed to demonstrate service by 23 email was “likely to reach defendants and is reasonably calculated to provide them actual notice of 24 this action.”). Further, unlike in the related actions, see e.g., Nos. 23-4300, Dkt. No. 35, the Court 25 did not grant Plaintiff leave in this action to subpoena Google, so it is unclear how this email 26 address was identified. 27 Nor has Plaintiff provided evidence any such email address Defendant provided Google is 1 means to contact him” “in order to communicate with Google, receive notice of DMCA 2 takedowns, submit counternotices, receive payment advices, and communicate with YouTube 3 concerning his YouTube channel,” but Plaintiff alleged in the complaint the information in 4 Defendant’s counternotice was fraudulent. (Compare Dkt. No. 14 at 6 with Dkt. No. 1 at ¶¶ 45- 5 46.) The counternotice for LATEST WEATHER indicates it is registered to a Sergey Lineev of 6 Kiev, Ukraine who uses the email address latestweather666.gmail.com. (Dkt. No. 1-3 at 17-18, 7 26-27, 35-36.) Given Plaintiff named Mr. Prokopenko and not Mr. Lineev as a defendant, it 8 appears Plaintiff contends this information is inaccurate, but Plaintiff does not explain this or 9 provide evidence Google provided a different email address which it used to communicate with 10 Mr. Prokopenko. 11 Nor has Plaintiff provided other evidence demonstrating service by email is likely to reach 12 Defendant. For example, Plaintiff has not provided evidence it attempted to communicate with 13 Defendant at the latestweather666.gmail.com email address or another email address to ensure the 14 address is legitimate. See, e.g., F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE, 2013 WL 15 4016272, at *5 (S.D.N.Y. Aug.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VIRAL DRM LLC, Case No. 3:24-cv-00739-JSC
8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. FOR ALERNATIVE SERVICE
10 YURII PROKOPENKO, Re: Dkt. No. 14 Defendant. 11
12 13 Plaintiff Viral DRM LLC syndicates and licenses video content of extreme weather events 14 from around the world. Defendant, a citizen of Ukraine, allegedly downloaded and copied 15 Plaintiff’s copyrighted materials from YouTube, and then re-uploaded infringing versions of 16 Plaintiff’s copyrighted media content to his YouTube channel(s). Plaintiff seeks leave to serve 17 Defendant via email and posting on a designated website. (Dkt. No. 14.) After carefully 18 considering Plaintiff’s motion and the relevant legal authority, the Court concludes oral argument 19 is unnecessary, see Civ. L.R. 7-1(b), and DENIES WITHOUT PREJUDICE the motion for 20 alternative service. 21 BACKGROUND 22 Viral DRM alleges Yurii Prokopenko operates the YouTube Channels LATEST 23 WEATHER and TOUGH WEATHER US. (Dkt. No. 1 at ¶ 25.) Defendant is alleged to have 24 “downloaded Viral DRM’s Works, [] edited the Works, removed Viral DRM’s copyright 25 management information, and then uploaded infringing versions of Viral DRM’s Works to 26 YouTube.” (Id. at ¶ 27.) Defendant did so “to advertise, market and promote their YouTube 27 channel, grow their YouTube channel subscriber base, earn money from advertising to their 1 copyrighted media content.” (Id. at ¶ 28.) Viral DRM notified YouTube and Defendant of the 2 allegedly infringing behavior by filing DMCA take-down notices, but Defendant responded with 3 false and misleading information. (Id. at ¶¶ 45-46.) 4 Plaintiff seeks leave to serve Defendant through alternative email service to the email 5 address Google provided in response to a subpoena as well as by website posting. (Dkt. No. 14.) 6 Plaintiff contends “allowing e-mail service in the present case is appropriate and comports with 7 constitutional notions of due process, particularly given Prokopenko’s decision to conduct his 8 illegal businesses using the Internet and utilizing e-mail as a primary means of communication.” 9 (Dkt. No. 14 at 10.) 10 DISCUSSION 11 Federal Rule of Civil Procedure 4(f) provides the applicable authority for serving an 12 individual in a foreign country. Under Rule 4(f)(3), courts can order service through a variety of 13 methods, “including publication, ordinary mail, mail to the defendant’s last known address, 14 delivery to the defendant’s attorney, telex, and most recently, email[,]” so long as the method of 15 service is not prohibited by an international agreement. Rio Props., Inc. v. Rio Intern. Interlink, 16 284 F.3d 1007, 1016 (9th Cir. 2002) (citation omitted). “However, the fact that an alternative 17 method of service is not prohibited by international agreement does not mean that the plaintiff is 18 entitled to use such a method under Rule 4(f)(3).” Keck v. Alibaba.com, Inc., 330 F.R.D. 255, 19 257–58 (N.D. Cal. 2018). It is within a court’s “sound discretion” to determine whether “the 20 particularities and necessities of a given case require alternate service of process under Rule 21 4(f)(3).” Rio Properties, 284 F.3d at 1016. 22 To comport with due process, alternate service of process must be “reasonably calculated 23 to apprise interested parties of the pendency of the action and afford them an opportunity to 24 present their objections.” Id. at 1016–17 (citation omitted). Service by email may be proper when 25 (1) international agreement does not prohibit service by email, and (2) service by email is 26 reasonably calculated to provide actual notice to the defendant. See D.Light Design, Inc. v. Boxin 27 Solar Co., No. C–13–5988 EMC, 2015 WL 526835, at *1 (N.D. Cal. Feb. 6, 2015) (collecting 1 International agreement does not prohibit service by email here. The Hague Service 2 Convention governs because the United States and Ukraine are both parties to this multilateral 3 treaty. See Hague Service Convention Status Table, 4 https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Apr. 11, 2024). 5 The Convention’s language is mandatory “in all cases, in civil or commercial matters, where there 6 is occasion to transmit a judicial or extrajudicial document for service abroad.” Volkswagenwerk v. 7 Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988) (internal quotation marks omitted). The 8 Convention authorizes service in several ways, including (a) through a receiving country’s central 9 authority, (b) by diplomatic and consular agents, through consular channels, on judicial officers in 10 the receiving country, or direct service by postal channels, unless the receiving country objects, 11 and (c) by additional methods of service that a signatory country may designate within their 12 borders either unilaterally or through side agreements. Facebook, Inc. v. 9 Xiu Network 13 (Shenzhen) Technology Co., Ltd., 480 F. Supp. 3d 977, 980 (2020). “Nothing in the Hague 14 Convention itself prohibits alternative service by email, when such service is directed by a court.” 15 See Google LLC v. Does 1-3, No. 23-CV-05823-VKD, 2023 WL 8851619, at *2 (N.D. Cal. Dec. 16 21, 2023) (collecting cases). 17 Plaintiff, however, has not made an adequate showing service by email comports with due 18 process. As a threshold matter, Plaintiff has not identified the email address(es) it intends to use to 19 serve Defendant. Plaintiff indicates it plans to use the email address Google provided in response 20 to a subpoena, but it has not attached a copy of Google’s response. See, e.g., Google, 2023 WL 21 8851619, at *2 (relying on Google subscriber records submitted with the motion for alternative 22 service demonstrating the accounts were active and recently accessed to demonstrate service by 23 email was “likely to reach defendants and is reasonably calculated to provide them actual notice of 24 this action.”). Further, unlike in the related actions, see e.g., Nos. 23-4300, Dkt. No. 35, the Court 25 did not grant Plaintiff leave in this action to subpoena Google, so it is unclear how this email 26 address was identified. 27 Nor has Plaintiff provided evidence any such email address Defendant provided Google is 1 means to contact him” “in order to communicate with Google, receive notice of DMCA 2 takedowns, submit counternotices, receive payment advices, and communicate with YouTube 3 concerning his YouTube channel,” but Plaintiff alleged in the complaint the information in 4 Defendant’s counternotice was fraudulent. (Compare Dkt. No. 14 at 6 with Dkt. No. 1 at ¶¶ 45- 5 46.) The counternotice for LATEST WEATHER indicates it is registered to a Sergey Lineev of 6 Kiev, Ukraine who uses the email address latestweather666.gmail.com. (Dkt. No. 1-3 at 17-18, 7 26-27, 35-36.) Given Plaintiff named Mr. Prokopenko and not Mr. Lineev as a defendant, it 8 appears Plaintiff contends this information is inaccurate, but Plaintiff does not explain this or 9 provide evidence Google provided a different email address which it used to communicate with 10 Mr. Prokopenko. 11 Nor has Plaintiff provided other evidence demonstrating service by email is likely to reach 12 Defendant. For example, Plaintiff has not provided evidence it attempted to communicate with 13 Defendant at the latestweather666.gmail.com email address or another email address to ensure the 14 address is legitimate. See, e.g., F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE, 2013 WL 15 4016272, at *5 (S.D.N.Y. Aug. 7, 2013) (“Service by email alone comports with due process 16 where a plaintiff demonstrates that the email is likely to reach the defendant.”); Hillbroom v. 17 Lujan, 2010 WL 11515374, at *2 (C.D. Cal. May 3, 2010) (permitting service of foreign 18 individual by email where individual used the subject email address to communicate with 19 counsel); Goes Int’l, AB v. Dodur Ltd., No. 14-CV-5666, 2015 WL 1743393, at *3 (N.D. Cal. Apr. 20 16, 2015) (same). 21 Finally, while the motion repeatedly references Defendant’s email address in the singular, 22 it also states “[b]ased upon plaintiff’s investigation, Prokopenko has multiple forms of electronic 23 means of contact, demonstrating that this means of contact is not just effective, but the most 24 reliable means of communicating with Prokopenko, and consequently, the most reliable means of 25 providing Prokopenko with notice of this action.” (Dkt. No. 14 at 9 (citing Rollin Decl. ¶¶ 7-8).) 26 Mr. Rollin’s declaration, however, only refers to Defendant’s “email address.” It is unclear if this 27 is a typographical error or if Mr. Prokopenko has multiple email addresses at which Plaintiff 1 In sum, Plaintiff's motion for alternative service fails to satisfy Rule 4(f) and constitutional 2 || due process. 3 CONCLUSION 4 For the reasons stated above, the Court DENIES WITHOUT PREJUDICE Plaintiffs 5 motion to serve Defendant by alternative means. 6 This Order disposes of Docket No. 14. 7 8 IT IS SO ORDERED. 9 Dated: April 11, 2024
i ne CQWELINE SCOTT CORLEY 12 United States District Judge
15 16
= 17
Z 18 19 20 21 22 23 24 25 26 27 28