The case of the day is Cawthon v. Zhousunyijie (S.D.N.Y. 2023). Cawthorn claimed that Zhousunyijie had sold products via Amazon that infringed his copyrights. Cawthorn served a DMCA takedown notice on Amazon, and Zhousunyije served a counter-notice, as the statute permits. The counter-notice contained a agreement to accept service of process from Cawthon or his agent.
When Cawthorn sued, he served the summons and complaint on Zhousunyijie, in China, by email. Months later, he moved for leave to serve by alternate means. The court unsurprisingly denied the motion. The easiest path to denial would have been to point out that you should file a motion for leave before serving the process, not after. But the court instead held, correctly, that service by email in China is impermissible, because China has objected to service under postal channels under Article 10 for the Service Convention, and the Convention is exclusive. Cawthorn argued that the service was good because by delivering the counter-notice, Zhousunyijie had waived service under the Convention. The court rejected the argument, noting that the counter notice specified who would serve the process but not how it could be served.
Cawthon then renewed the motion, focusing on the DMCA, which, according to him, should be read to waive the requirement of service of process. The court rejected that reading of the statute—I’m not going to go into the details of the reasoning. It seems to me there is. conceptual problem with the statute itself. What does it mean to say that the party that serves the counter-notice agrees to accept service, if you still have to serve process in the ordinary way? In other words, what does the statute really do? Whatever the statute means, though, it can’t mean that a party can waive the requirements of the Convention, for the reasons I have explained before. A state’s objection to service of process by a particular method in its territory is the state’ objection, not the objection of a private party that the private party has the power to waive, or that a statute can waive on the private party’s behalf.