Caner v. Autry

16 F.Supp.3d 689

110 U.S.P.Q.2d 1819

Ergun M. CANER, Plaintiff

v.Jonathan AUTRY, Defendant.

Case No. 6:14–cv–00004.

United States District Court, W.D. Virginia, Lynchburg Division.

Signed May 14, 2014.

David Charles Gibbs, III, Gibbs Law Firm, P.A., Bartonville, TX, Matthew Kevin Bailey, M. Kevin Bailey, PLLC, Lynchburg, VA, for Plaintiff.

Abram John Pafford, Pafford Lawrence & Childress PLLC, Lynchburg, VA, Joshua M. Autry, Clymer Musser & Conrad, P.C., Lancaster, PA, for Defendant.

Memorandum Opinion

NORMAN K. MOON, District Judge.

This case is before the Court on Defendant Jonathan Autry's Motion to Dismiss the Amended Complaint for Failure to State a Claim, or in the Alternative, for Summary Judgment (“Motion”) (docket no. 28), filed on November 26, 2013. Ergun M. Caner (“Plaintiff” or “Caner”) originally filed this action in the Northern District of Texas, claiming that Jonathan Autry (“Defendant” or “Autry”) and another person, Jason Smathers, infringed his copyrights by posting various videos on YouTube.com and other websites. Plaintiff filed his Amended Complaint (docket no. 13) on October 14, 2013, in the Northern District of Texas. Plaintiff seeks a permanent injunction restraining Defendant from any further infringement, along with costs, attorney's fees, investigatory fees, and expenses available under 17 U.S.C. § 505 (the “Copyright Act”). Am. Compl. ¶¶ 48–50.

Ergun M. Caner was born to parents who met at a university in Sweden, and he lived with them and his brothers in Ohio from the time he was a toddler.¹ His father was a devout Muslim, highly involved in the Islamic Community in Ohio, and after a painful divorce, Plaintiff spent weekend visitation at the mosque in Columbus, Ohio with his father. Sometime during high school, Plaintiff began attending church with a friend and became a born-again Christian, going on to obtain a Master of Theology from Southeastern Baptist Theological Seminary in Wake Forest, North Carolina, and a Doctor of Theology from the University of South Africa. About a year after the terrorist attacks on September 11, 2001, Plaintiff and his brother, Emir Caner, wrote what became a popular book about their upbringing as Muslims in Ohio and their conversion to Christianity. Plaintiff became a spokesperson for this background, and was hired by Jerry Fallwell in 2005 to serve as the dean of the Liberty Theological Seminary.

Around this time, Plaintiff started making claims in his public speeches that he had grown up as a Muslim in Turkey, steeped and trained in jihad, in a tradition that went back several generations in his father's family. After bloggers and major news media outlets began reporting on contradictions in Plaintiff's narrative, Liberty University conducted an official inquiry into these accusations in May 2010. Shortly thereafter, Liberty demoted Plaintiff from his position as dean, citing contradictions in factual statements he had made. By 2011, Plaintiff announced that he was called to serve as provost and vice president of academic affairs at Arlington Baptist College in North Texas.

Defendant attended Liberty Theological Seminary during the time Plaintiff served as dean, and as Plaintiff concedes, initially supported Plaintiff and his message. Eventually, revelations led Defendant to believe that Plaintiff was a detriment to the Christian religion and their common institution, Liberty University. Although accusations against Plaintiff emerged in 2010, it was not until the spring of 2011 and the spring of 2012 that Defendant joined the criticism by posting the Count Two and Count One Videos, respectively. Mot., Ex. A ¶¶ 8, 18. In February 2012, Defendant posted the Count One Video, in which Plaintiff proclaimed his Muslim upbringing in Turkey and expounded on how Muslims in the Middle East would view the U.S. Marines and approach them from the perspective of jihad. Mot., Ex. A ¶¶ 9, 18, 20–23. Defendant wished to expose Plaintiff's dishonesty, knowing he was making claims like those in the Count One Video to countless churches and before the U.S. Military. Mot., Ex. A ¶¶ 21–23.

Plaintiff responded to Defendant's videos by claiming he possessed copyright protection over the Count One and Two Videos, filing a takedown notice with YouTube.com in May 2013. Am. Compl. ¶ 9. Defendant contested the videos' removal, and on June 4, 2013, YouTube.com informed Plaintiff that it would repost the videos unless Plaintiff filed legal action within ten business days. Am. Compl. ¶ 12. This suit followed in the Northern District of Texas, on June 18, 2013.

In the Northern District of Texas, the parties filed various motions related to this case, including Defendant's Motion. Plaintiff responded to the Motion on January 6, 2014. On January 15, 2014, the Northern District of Texas severed Jonathan Autry from the case and transferred it to this Court, where only two videos mentioned in the Amended Complaint remain at issue.

Upon arrival in this Court and after various motions by Defendant, Magistrate Judge Robert S. Ballou ordered the parties to hold a scheduling conference, exchange initial disclosures, and exchange written discovery while the Motion was pending, but allowed Defendant to stay further discovery until the Motion's disposition. See April 11, 2014 Order (docket no. 56). On April 4, 2014, Defendant filed his reply on the Motion. On April 17, 2014, Defendant filed notice with this Court that the Northern District of Texas granted an identical motion to dismiss as to Jason Smathers, the other original defendant. On April 28, 2014, Defendant filed an unopposed Motion to Supplement the Record (docket no. 58) with copies of the copyright applications Plaintiff had filed with the Copyright Office, which this Court granted. See April 29, 2014 Order (docket no. 59). A telephonic hearing on the Motion was held at 2:00 p.m. on April 30, 2014. After the hearing, Defendant filed a Second Motion to Supplement the Record (docket no. 63) with information contesting Plaintiff's assertion during the hearing that Defendant was a disgruntled former employee.

For the reasons that follow, I will CONSIDER the Motion as one for summary judgment and GRANT that Motion (docket no. 28). I will DENY the Second Motion to Supplement the Record (docket no. 63).

I. Background²

Plaintiff resides in Texas and alleged he was employed at Arlington Baptist College in Arlington, Texas.³ The Amended Complaint alleges that Defendant resided in Lynchburg, Virginia.⁴ This Amended Complaint makes claims under the Copyright Act, 17 U.S.C. §§ 101, 501. Plaintiff became a prominent leader in the evangelical Christian community⁵ sometime after the September 11, 2001 terrorist attacks, when he spoke and wrote to numerous audiences throughout the United States about his upbringing as a Muslim in either Turkey or Ohio,⁶ and his conversion to Christianity as a teenager.⁷ Plaintiff became dean of the theological seminary at Liberty University in 2005, and served in that post until 2010.⁸ Controversy emerged in 2010 when public questions were raised regarding some details of Plaintiff's background. While he claimed to have been raised as a devout Muslim and jihadist in Turkey until his teenage years,⁹ various bloggers and newspapers began to point out that other speeches and a book Plaintiff published with his brother¹⁰ claimed he moved to the United States from Sweden when he was three or four years old.¹¹ In May 2010, citing “several newspapers rais[ing] questions,” Liberty University “form[ed] a committee to investigate a series of accusations against” Plaintiff, then removed Plaintiff from his position as dean in July 2010; by 2011, Arlington Baptist College in North Texas selected Plaintiff to serve as provost and vice president of academic affairs at Arlington Baptist College in North Texas.¹²

Count One of the Amended Complaint claims Defendant posted a video on YouTube (“Count One Video”) of a “presentation [Plaintiff made] as part of a training series on the religion of Islam” to the United States Marines, for which Plaintiff was “compensated as an independent contractor.” Am. Compl. ¶ 15. Plaintiff claims Defendant thereby infringed on a copyright “to the content of his presentation,” an application for which is “currently pending at the Copyright Office.” Am. Compl. ¶ 14. On May 13, 2013, “Dr. Caner filed a takedown notice ... with YouTube.com ... challenging Defendant's use” of this video and others. Am. Compl. ¶ 9. Defendant then “challeng[ed] the removal of two of Dr. Caner's videos” and YouTube.com informed Plaintiff on June 4, 2013, that the “videos would be reposted to Autry's account if Dr. Caner did not initiate legal action within ten business days.” Am. Compl. ¶ 12.

Count Two of the Amended Complaint alleges Defendant infringed Plaintiff's rights with a second video, titled “Ergun Educated in Cairo, Egypt,” (“Count Two Video”) which “includes live portions of recorded footage of Dr. Caner during various presentations and sermons.” Am. Compl. ¶¶ 20–22. Plaintiff alleges he “owns the copyright to the content of his presentation and has not authorized Autry to use any portion of this work.” Am. Compl. ¶ 22.

Plaintiff filed his initial complaint in the Northern District of Texas on June 18, 2013, and his Amended Complaint on October 14, 2013. After filing various motions regarding jurisdiction, venue, and severance, Defendant responded to the Amended Complaint with this Motion on November 26, 2013. Defendant attached several exhibits to the Motion, related to his reasons for posting the videos and to Jason Smathers' alleged Freedom of Information Act (“FOIA”) request for the Count One Video. Mot. to Dismiss, Exs. A–D. Plaintiff's response to the Motion attached an exhibit showing emails from the “Copyright Office” confirming that he successfully uploaded a file entitled “Ergun Caner trains U.S. Marines o_club.pdf,” and that he applied and paid for applications for works entitled: “Training Session: What You Need to...