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Caner v. Autry

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

May 14, 2014

ERGUN M. CANER, Plaintiff,

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[Copyrighted Material Omitted]

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For Dr. Ergun M. Caner, Plaintiff: David Charles Gibbs, III., LEAD ATTORNEY, PRO HAC VICE, Gibbs Law Firm, P.A., Bartonville, TX; Matthew Kevin Bailey, LEAD ATTORNEY, M. Kevin Bailey, PLLC, Lynchburg, VA.

For Jonathan Autry, Defendant: Abram John Pafford, LEAD ATTORNEY, Pafford Lawrence & Childress PLLC, Lynchburg, VA; Joshua M Autry, LEAD ATTORNEY, PRO HAC VICE, Clymer Musser & Conrad, P.C., Lancaster, PA.


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Memorandum Opinion


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 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

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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 in May 2013. Am. Compl. ¶ 9. Defendant contested the videos' removal, and on June 4, 2013, 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).

II. Background[2]

Plaintiff resides in Texas and alleged he was employed at Arlington Baptist College in Arlington, Texas.[3] The Amended Complaint

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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 community [5] 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

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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

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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 brother [10] 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]

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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 . . . 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 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 Know About Islam--Base Theater" and " Training Session: What You Need to Know About Islam--O-Club." See Resp. on Mot. to Dismiss, Ex. A. The attachments did not include confirmation that Plaintiff successfully uploaded a file corresponding with the " Base Theater" training session file name, only two confirmations for files entitled " o_club." Id.

Defendant submitted several more exhibits to this Court through two motions to supplement the record. This Court granted leave for Defendant to supplement the record on the first motion, with " electronic

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cop[ies] of Dr. Caner's two application for copyrights," with " the transcript of Dr. Caner's respective sermons" attached to each application. Mot. to Supplement the Record ¶ ¶ 5-6 (docket no. 58). Defendant also submitted a second declaration by Jonathan Autry, describing the extent of his and his wife's employment for Liberty University, and for Plaintiff. Second Mot. to Supplement the Record, Ex. A (docket no. 63).[13]

III. Legal Standard

In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must contain facts sufficient " to raise a right to relief above the speculative level" and " state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible if the complaint contains " factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," and if there is " more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). When considering a Rule 12(b)(6) motion, a court must accept all factual allegations in the complaint as true, and must draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). However, a court is not required to " accept the legal conclusions drawn from the facts" or " accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000) (citations omitted).

Federal Rule of Civil Procedure 56(a) provides that a court should grant summary judgment " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." " As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In order to preclude summary judgment, the dispute about a material fact must be " 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. See also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). However, if the evidence of a genuine issue of material fact " is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 250. In considering a motion for summary judgment under Rule 56, a court must view the record as a whole and draw all reasonable inferences in the light most favorable to the nonmoving party. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994).

IV. Discussion

This Court has jurisdiction pursuant to 28 U.S.C. § § 1331 and 1338(a), and venue is proper pursuant to 28 U.S.C. § 1391(b)(2). Plaintiff's claims arise under the Copyright Act, 17 U.S.C. § § 101, 501, and 28 U.S.C. § 1338(a) provides that federal district courts " shall have original jurisdiction of any civil action arising under any Act of Congress relating to . . . copyrights . . . ." 28 U.S.C. § 1338(a). Defendant raises multiple issues with Plaintiff's claim. Those most central to resolution of

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this case include whether this Court should consider his Motion as one to dismiss the complaint or as one for summary judgment, whether this Court can consider the various exhibits submitted during briefing on the Motion, whether Plaintiff has satisfied the prerequisites to filing a copyright suit, and whether Defendant's posting of Plaintiff's videos constitutes fair use.

A. Exhibits and Alternative Motion for Summary Judgment

Defendant has filed a Motion to dismiss, or in the alternative, for summary judgment, and both parties have submitted exhibits with their briefs on the Motion. Defendant submitted documents related to a FOIA request by Jason Smathers. Defendant also submitted a declaration explaining his motivations for posting the Count One and Two Videos online. Finally, during briefing, Defendant submitted a declaration about the employment status of himself and his wife, and copies of the copyright applications that Plaintiff filed with the Copyright Office. For his part, Plaintiff submitted emails from the " United States Copyright Office," which confirm application and payment for two works: (1) " Training Session: What You Need to Know about Islam--Base Theater," and (2) " Training Session: What You Need to Know about Islam--O-Club," and deposit of the " O-Club" work.

1. Exhibits Extrinsic to the Pleadings

Rule 12(d) prohibits district courts from considering evidence outside the pleadings on motions to dismiss, unless the process is converted to summary judgment. See Fed.R.Civ.P. 12(d). However, without risking conversion of the proceedings, courts can consider " documents attached to the complaint, as well as those attached to [a] motion to dismiss, so long as they are integral to the complaint and authentic," including documents " incorporated into the complaint." Bala v. Commonwealth of Virginia Dep't of Conservation & Recreation, 532 F.App'x 332, 334 (4th Cir. 2013) (internal quotation marks omitted) (citing Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). The Fifth Circuit and some district courts have refused to consider " documents that are mere evidence for the defense" as incorporated into the complaint. See Kaye v. Lone Star Fund V (U.S.), L.P., 453 B.R. 645, 663-64 (N.D. Tex. 2011).

If I were to consider the Motion under Rule 12(b)(6), I would consider the material submitted with Plaintiff's response to the Motion, as it is integral or incorporated into the Amended Complaint. The Amended Complaint claims that Plaintiff " owns the copyright to the content of [the presentation in the Count One Video]; [and that] his copyright application is currently pending at the Copyright Office." Am. Compl. ¶ 14. Likewise, Plaintiff claims he " owns the copyright to the content of his presentation and has not authorized [Defendant] to use any portion of [the Count Two Video]." Am. Compl. ¶ 22.

The Court can consider Exhibit A, attached to Plaintiff's response to the Motion. This exhibit purports to show that the U.S. Copyright Office received Plaintiff's applications for copyrights over certain works on October 14, 2013.[14] See Resp. to Mot. to Dismiss, Ex. A. Plaintiff

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may only satisfy the prerequisites to bring a copyright suit if, before bringing suit, he actually applied to the U.S. Copyright Office for copyrights in the works at issue. Proof that he has applied for or owns copyright in the videos thus proves " integral to the complaint," and since an application for copyright is mentioned in the complaint, that application may also be " incorporated into the complaint" by reference. See Bala, 532 F.App'x at 334; Trimble, 484 F.3d at 705.

If I consider most of the exhibits submitted with Defendant's Motion and in supplemental briefing, I must convert the motion to dismiss into one for summary judgment. See Bala, 532 F.App'x at 334; Fed.R.Civ.P. 12(d). These exhibits relate to Defendant's purpose in posting the videos, the method for obtaining the videos, and the content of the copyright applications Plaintiff submitted, among other things. See Mot., Exs. A-C (docket no. 28); First Mot. to Supplement Record & Supplement (docket nos. 58, 60); Second Mot. to Supplement Record, Ex. A (docket no. 63). The Amended Complaint never mentions how Defendant obtained the Count One and Count Two Videos, his motivations for posting the videos, alludes to any employment relationship between him and his family and Plaintiff, or specifies the contents of Plaintiff's copyright applications.

I could nevertheless consider the copies of Plaintiff's copyright applications, as the Amended Complaint refers to Plaintiff's pending application for copyright over the Count One Video, and his purported ownership of the copyright over the content in the Count Two Video. Am. Compl. ¶ ¶ 14, 22. These applications and their content are incorporated by reference into the Amended Complaint, or prove integral to it. All other extrinsic exhibits refer to matters not referenced or discussed in the Amended Complaint, which are not integral to it or incorporated into it by reference. Therefore, I cannot consider these other documents without converting the Motion into one for summary judgment. See, e.g., Kaye, 453 B.R. at 663-64 (N.D. Tex. 2011) (finding documents that are mere evidence for the defense are not incorporated into the complaint); Caner v. ...

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