Copyright Owner Can Serve DMCA Counter-Notifier by Email–Epic Games v. Mendes
DMCA counter-notifications are rare, and litigation over them is even more rare. So my curiosity is piqued that this is the second 512(g) case I’m blogging in a week (the other: DMCA Counternotification Doesn’t Create Personal Jurisdiction in Copyright Owner’s Home Court–Real v. Matteo). Must be something in the water.
Epic Games makes videogames, including Fortnite. Rak, a Russian, made a Fortnite cheat and posted a YouTube video advertising the cheat. “Epic Games alleges that Mr. Rak’s cheat and video violates Epic Games’s copyrights and trademarks and intentionally induces other players to modify the game and thereby induces those players to violate Epic Games’ copyrights and trademarks as well.” Epic got some press for the quoted legal position when it sued a minor and mom publicly scolded them. In this case, Epic sent a DMCA takedown notice for Rak’s video to YouTube, which complied. Rak submitted a counter-notice to YouTube.
The counter-notification statute requires the counter-notifier to include their “name, address, and telephone number, and a statement…that [they] will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.” Rak’s notice said he lived in Russia, listed his Gmail address, and said he would accept service. Epic located Rak’s email address used for his Fortnite account in its database and sent emails to both the Gmail and second email accounts including a cover letter, a copy of the summons and complaint, and a service waiver request (all in English). Rak did not reply.
Epic now wants official permission to serve the complaint by email. The Hague Convention and postal mail aren’t options in Russia. FRCP 4(f)(3) allows email service internationally unless barred by treaty, which is not the case in Russia. A few other cases (the court cites Ultra Records v. Teoh and Xcentric v. Karsten) have allowed email service to counter-notifiers in similar cases, so the court green-lights Epic’s request. However, the court says “Epic Games must provide a certified translation into Russian of the complaint, the summons, and its cover letter and cover email to Mr. Rak.”
Even if Epic serves Rak, what will it do with the judgment? Enforcing it in Russia sounds arduous. My guess is that Epic just wants the default judgment so it can go back to YouTube and get the video permanently removed. Even if Rak isn’t likely to be writing checks to Epic, for anyone considering counter-noticing a takedown notice, this case is another reminder that such a decision has legal consequences–you can and sometimes will be sued, so be prepared.
Case citation: Epic Games, Inc. v. Mendes, 2018 WL 582411 (N.D. Cal. Jan. 29, 2018). The complaint.