The internet “adult entertainment” industry makes yet another contribution to the law of international judicial assistance in today’s case of the day, Liberty Media Holdings v. Sheng Gan (D. Colo. 2012). According to the amended complaint, Sheng Gan, a Chinese national residing in Costa Rica, operates a website known as SiteRipKing.com. “Site ripping” is the practice of copying an entire website and then making it available on the internet. Liberty Media, a California LLC doing business in Las Vegas, “produces, markets, and distributes adult-oriented audiovisual works.” It makes “G-Rated” photographs available for free viewing, but its “more explicit erotic works” are available only to paying subscribers. Liberty alleged copyright and trademark infringement and demanded damages and an injunction.

Liberty made an ex parte motion or leave to serve the defendant by email. Since Sheng Gan lived in Costa Rica, which is not a party to the Hague Service Convention, the reasons I have given for suggesting that the Convention does not permit service by email do not apply. (It’s curious, therefore, that the judge thought it necessarily to point out that the Convention did not apply in any case as the defendant’s address was unknown). The judge, relying on the Rio Properties case, held that service by email, in general, is permissible. It sidestepped the question some cases have raised about whether a plaintiff must first seek to make service conventionally, noting that the plaintiff had already made extensive efforts to locate the defendant’s physical address, to no avail.

But the judge identified due process issues, because unlike in Rio, “here there is [sic] no indicia of the extent to which Defendant uses” the emails to which Liberty wanted to send the papers. “Nor is there any indication that Defendant has held these addresses out to the public as a preferred means of contact.” On the ultimate issue, the judge found there was “no reasonable assurance that Plaintiff’s emailed complaint and summons will be received on the other end.”

But rather than denying the motion outright, the court suggested that Liberty seek to make use of a commercially available service that offers “encrypted on-line delivery of documents and returns a digitally signed proof of delivery once the document has been received by the target e-mail.” I don’t know enough about the technical details of the service to know whether it solves the problem, but I suspect that the chances of the defendant doing whatever he would have to do to acknowledge receipt are slim.