Rapper and creator TREFUEGO became a headache for Sony Music after uploading a viral track that prominently featured a violin sample, allegedly without a license to do so. The problem for Sony Music? They couldn’t find him. The label claims on Mother’s Day they tried to serve the viral artist, but told the court, “Sadly, he was not there, and his own mother claimed she did not know who he was.”
A District Court judge in Texas recently issued an order accepting Sony Music’s use of TikTok, Twitter, and SoundCloud direct message tools to serve the notice to TREFUEGO, aka Dantreal Daevon Clark-Rainbolt, for the copyright infringement lawsuit. The move is a growing trend of using non-traditional means of serving notice on defendants in a lawsuit, a practice normally handled via IRL delivery.
Sony’s lawsuit claims that the artist’s virtual hit song “90MPH” uses a violin sample of Japanese composer Toshifumi Hinata’s song “Reflection” without having obtained a license from the label or music publisher. The song has been removed from streaming music platforms, such as Spotify, but remains available unofficially on YouTube and social platforms.
The label had been emailing TREFUEGO’s manager, but they noted that all communication stopped shortly before the lawsuit was filed. Therefore, they argued there would be no guarantee the email account would be monitored or the email notice seen. However, the label presented evidence to the court that TREFUEGO continued to personally use his social media accounts, and, therefore, would be sufficient proof that a DM notice would be received and seen.
“Modern problems require modern solutions,” the court wrote in its opinion.
Is This Even Legal?
Legal service of process is a required step in the litigation process that puts someone, or a business, on notice that a lawsuit or some other legal action has been started against them. Traditionally, the notice would be given in person, often through a courier or other third party. However, with the rise of digital platforms and anonymous or pseudonymous online personalities, courts can often grant substituted service, which is where service by DM comes into play.
Besides the court in the Sony Music case saying it is legal, there are other examples of legal notice and similar processes being validly communicated using messaging tools available by platforms.
“Alerting people to legal claims via messaging is becoming more commonplace,” Michael Lee, an attorney that represents high-profile creators and brands in disputes, told Passionfruit.
One of the first known uses of social media to serve a legal document on defendants involved Facebook messages (prior to the launch of Messenger) in 2008. In April, the Illinois Supreme Court updated its rules to specifically allow for service by social media, provided a motion is filed in court that explains why it is necessary. Previously, numerous court decisions permitted service by social media.
“Usually if you are going to get served that way you need permission from the court for substituted service,” said attorney Matt Feinberg, whose extensive work in emerging technology fields such as web3 and cryptocurrency often lends itself to needing non-traditional methods of serving notice.
As part of the FTX cryptocurrency influencer lawsuits, brought against YouTubers Tom Nash (@TomNashTV), Ben Armstrong (@BitBoyCryptoChannel), and others, the judge permitted service through the use of Twitter and email. Web3 and blockchain technologies present new questions for courts as to whether it would be possible to properly serve someone using an NFT. In 2022, the first known service of process via blockchain as part of a cryptocurrency hack was approved by a New York State court.
I Got Served, Now What?
Definitely don’t ignore the message. However, that doesn’t mean you should immediately respond, either. Instead, take a moment and try to determine if it seems like a real message coming from a real account. Confirm it’s authentic, and not a scam or fraud. Take a moment and pause. As with most scams and cybersecurity threats, the bad actors are trying to capitalize on fear and irrational decisions made in the heat of the moment.
Feinberg warns that “a person should be very careful what, if anything, they say in response as it could be an admission of some sort.”
Work with an attorney to determine the appropriate next steps. A notice being served is one of the steps required when another person or company is filing a lawsuit. It’s simply a part of the process. However, there are likely specific actions a creator or brand will need to take if they are put on notice. This is where an experienced litigation attorney will be helpful. On the other hand, there are times when notice is being given, and there’s actually no reason for it at all, such as with a cease-and-desist letter.
“If you don’t want to contact a lawyer, you are making a mistake,” advises Lee, “But at least fully research the person contacting you instead of just blowing it off as a scam. People who ignore claims become more likely to get sued.”
Another helpful aspect of the litigation process is that nearly every lawsuit will be publicly accessible after it’s been filed with a court. This makes it fairly easy to verify whether or not the person sending the notice is serious, or if they are bluffing.
“As soon as litigation seems reasonable [creators and brands] have to preserve everything like [they] would under a litigation hold,” notes Feinberg. “If they don’t and it goes to suit, they risk a sanction such as an adverse inference that the “lost” documents were bad for their defense. Or maybe worse like the striking of a pleading.”
Educating teams is a proactive measure that can be taken to prepare for when a DM comes in that is giving legal notice of some sort. Work with an attorney to get training. Many attorneys, especially ones with which you already have a working relationship, offer training as a complementary service. Then, when the real issue comes up, they’ll be top of mind for you or your company.
Establishing a formal internal process is also key to ensuring proper management and handling of any legal notices that come in via messaging tools available on social media platforms.
“If someone continues to commit a wrongdoing after receiving notice, it makes their wrongful acts even more willful and is great evidence of malicious intent in legal proceedings,” says Lee. “What better way to show that someone received notice of claims than showing a DM history.”