Case of the Day: Advanced Access v. Shen
Posted on October 8, 2018
The case of the day is Advanced Access Content System Licensing Administrator, LLC v. Shen (S.D.N.Y. 2018). Advanced Access sued Feng Tao for violations of the Digital Millennium Copyright Act “in connection with Defendants’ trafficking of products designed to circumvent Plaintiff’s encryption technology.” It sought and received leave to serve Feng Tao, a resident of China, with service of process by email. After the court entered a preliminary injunction and the clerk entered Feng Tao’s default, Feng Tao appeared in the case seeking reconsideration of the default and modification of the injunction. The court of appeals affirmed those interlocutory orders over arguments that the service of process was improper. Advanced Access moved for entry of default judgment. Feng Tao then moved to dismiss for insufficient service of process (procedurally, it’s unclear why this was proper given that he was in default. Probably the service issue should have been addressed in connection with Advanced Access’s motion for entry of default judgment. But I’ll leave this minor point to the side).
Advanced Access had justified its service by arguing in the first instance that it did not know Feng Tao’s address though it had made reasonably diligent inquiries. Feng Tao argued that it had a known address, but it was unable to rebut Advanced Access’s point about its diligence; thus this argument was unsuccessful. Feng Tao also argued that Advanced Access should have been required to make a first effort at service under the Hague Service, but the Convention has no rule of first resort. The case, therefore, did not implicate the Convention.
Feng Tao argued that it the court had erred by allowing Advanced Access to email the documents in English rather than in Chinese. Such an argument is possible on due process grounds, but the court noted there was evidence in the record that Feng Tao had done business in English. Feng Tao also argued that Chinese law forbade service by email and service in English. But the court correctly noted that service under FRCP 4(f)(3), while it may not violate the Convention, may violate foreign law.