Someone has asked the IPKat a question and he doesn't have the foggiest notion what the answer is. The background is a familiar one: a copyright owner finds that an unauthorised use is being made of his work by users of a social networking site; he decides to write a cease-and-desist letter and, if that is not effective, to commence copyright infringement proceedings. The question is: "Can you serve legal documents over MySpace? [or indeed over any other social networking facility]".The Kat's first thoughts are that the validity of such service will depend on the applicable rules for service in the jurisdiction in which the copyright owner seeks to bring the infringement proceedings, and that it is improbable that such rules will make explicit reference to this medium -- but he wonders what his readers think. Merpel says, it's all the more fun when the physical presence of the alleged infringers is none too apparent.
If you have any brilliant thoughts on this subject do please post them below, and/or email the IPKat here and let him know.
A katty query on service of documents
Reviewed by Jeremy
on
Monday, November 10, 2008
Rating:
Reviewed by Jeremy
on
Monday, November 10, 2008
Rating:
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Posts
Under English procedure you couldn't serve by Myspace message or posting, which would count as an electronic form of service under CPR 6PD para 4.1 unless the recipients consented or you got an order permitting alternative service from the Court.
ReplyDeleteIt may help to "serve by Myspace" in addition to the conventional methods if you ever had to prove that the owner of the offending myspace page had received the proceedings (e.g. default judgment application). This is because when a message is opened on myspace the sender is able to see if the recipient has read the message or not (it will show up in the sender's sent items as either "Sent" or "Read").
ReplyDeleteI don't see why the answer should depend on the nature of the claim or where the damage occurred. On principle, valid service should ensure that the party being served has been give notice, since it triggers the court's authority over the individual. Giving notice on MySpace doesn't strike me as sufficient.
ReplyDeleteI think the question here is not the method of service, but who is being served. In order to proceed with litigation, MySpace is going to have to be brought in as an indispensible party (even if MySpace correctly alleges no liability... and that is not the slam dunk that its counsel claims, see Ellison v. America Online, Inc.). Serving MySpace electronically is easy, either under the DMCA or otherwise.
ReplyDeleteOn the other hand, absent actual knowledge that the MySpace infringing poster's apparent identity is "real" and accurate, service via MySpace is no better than service on an interloper, regardless of the method of service. This leads back into the previous consideration: The closest that the server can come is to demand that MySpace cough up all the identification data it has on its account-holder.
I would have thought that if it was possible to serve over a social networking site the claimants in Eros LLC v John Doe (the case against Second Life avatar Volkov Catteneo- http://secondlife.reuters.com/stories/2007/07/03/sl-business-sues-for-copyright-infringement/) might have tried that, although that case is a couple of years old now so maybe things have moved on.
ReplyDeleteSurely, though also, communications on social networking sites are equivalent to email communications and therefore acceptability of this medium, will, as you say, depend on the laws of the particular jurisdiction in which the copyright owner seeks to bring infringement proceedings.
In England and Wales, the 2008 Civil Procedure Rules allow service by "electronic communication" (CPR 6.2(e)) which can include service via networking websites.
ReplyDeleteIn practice, an application for service by an alternative method is required and will be granted only where there is a good reason to do so.
In considering what is a "good reason", the court will require evidence that everything reasonably possible has been done by the claimant to trace and serve the defendant or the defendant's current address but this has proved unsuccessful. Trace agent reports showing that the defendant is evading service (and may be being shielded by family members) can constitute good reason.
Having successfully served by email, there is no reason why the principle cannot be extended to social networking websites. The judge will require a "walkthrough" of how the such sites and the method will work and why the defendant cannot be served by any other method and what attempts have been made.
Assuming service is deemed effective and the case is successful, enforcement becomes a different matter...
Niel Ackermann (Hewitsons) writes: I have checked the rules http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part06.htm#IDA5OC1B and can confirm that what we are discussing here is properly termed "Service by an alternative method".
ReplyDelete