Liberty Media v. Sheng Gan Revisited: Service On The Web?

Julian Ku recently reported on a High Court decision permitting service of process by Facebook. Today’s case of the day, Liberty Media Holdings, LLC v. Sheng Gan (D. Colo. 2012), a follow-up to our case of the day from January 30, 2012, is a slightly more sophisticated variation on the same theme. In the earlier decision, the judge denied an ex parte motion for leave to serve process via email. Now the plaintiff returned to the court with another, more sophisticated request. The case involved an internet website that posted material that allegedly infringed on Liberty Media’s copyright. Liberty Media asked the judge to authorize it to create a webpage with the title of the lawsuit and links to the summons and complaint and to order to domain name registrar (which also hosted the allegedly infringing site) to point the domain name to the notice webpage. Full marks for creativity! The idea is that when the defendant pointed his web browser to his own website, he would be directed instead to the notice page.

But the judge didn’t buy it. She held that as a matter of due process, service by publication was permissible only if the defendant already had knowledge of the suit. This seems wrong-headed to me, since the point—the sole point, really—of service of process is just to provide notice to the defendant. What is the point of providing notice to a defendant who already has notice? The judge also found that the method of service was not reasonably calculated to provide notice. But her real objection didn’t seem to be notice—she was instead concerned that she lacked authority to order the domain name registrar to change the DNS records to cause a browser pointed at the defendant’s website to display the notice page.

So much for creativity!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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