1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 VIRAL DRM, LLC, Case No. 3:24-cv-00733-JSC Plaintiff, 8

ORDER RE: PLAINTIFF’S

9 v. MOTION FOR ALTERNATIVE

SERVICE

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

ACQUELINE SCOTT CORLE

6 United States District Judge 7 8 9 10 11 12

13

© 15 16

= 17

Z 18

19 20 21 22 23 24 25 26 27 28