Caner v. Smathers, No. 4:13-CV-494 (N.D. Tex. Apr. 17, 2014)
If hard cases make bad law, it may also be that sometimes
jerks make good law. Here is an addition
to the growing number of cases finding fair use on a motion to dismiss. (The next Caner
case finds fair use on summary judgment, which is less pleasant but still ends
up with some very fine statements about the benefits of fair use.) Caner alleged that Smathers infringed by
posting two videos featuring Caner online. The videos “were taken during a
presentation given by Dr. Caner to the United States Marine Corps.” (Why is he the copyright owner?)
Caner claimed to have been associated with Muslim extremist
groups until moving to the United States and converting to Christianity. While
his faith background is central to his writings and lectures, in 2010 questions
began to arise about some of his biographical claims. Sometimes, Caner claimed to have moved to the
United States as a teenager, after spending years on the “cusp of Muslim
extremism” in Turkey. In other accounts, Dr. Caner moved to the United States
with his parents when he was three or four years old. As a result of these questions, Liberty University—where
Caner was then dean of the seminary—investigated him, and he was ultimately
removed as Dean, after which he left the university for another college.
Smather blogged about Caner’s misrepresentations, as a part
of which he posted the videos in suit. When Caner’s takedown notice proved unsuccessful
because Smathers counternotified, he sued Smathers. Caner apparently didn’t contest the fair use
argument, but the court proceeded to analyze it independently.
There was no evidence (nb: court must mean allegation, given
the procedural posture) that Smathers posted the video for commercial gain. His sole purpose was to expose Caner’s
inconsistencies and criticize him. This
was transformative of the character and message of the videos. As for the nature of the work, Caner’s
lecture was supposed to provide information about Islam, and thus was
factual. “This is true even though the
facts concerning Dr. Caner’s biography are alleged to be fictional.”
Smather did use the entirety of the videos, which weighed
against but did not preclude fair use.
For market harm, any financial loss wasn’t related to unauthorized
reproduction but rather to Smathers’ legitimate criticism, which does not give
rise to “a harm cognizable under the Copyright Act.” Campbell. Thus, fair use.
The court noted that it would entertain a separate motion
for attorney’s fees, which I trust will be forthcoming.
Caner v. Autry, No. 6:14-cv-00004 (W.D. Va. May 14, 2014)
Same videos, different posture, same result. The court goes into more details on the facts
of Caner’s life, noting that it is using sources that may appropriately be
judicially noticed (and as to the contradictions, it’s using them not as
evidence of truth but rather as evidence of what Caner stated at various
times). He and his brother wrote a book
about their upbringing as Muslims in Ohio and their conversion to
Christianity. But a few years later,
Caner “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.”
In the book, he stated that his parents met at a university
in Sweden, where he was born, then moved to America when he was three or four
years old; he attended a mosque in Columbus, Ohio as a teenager during weekend
visits to his father after his parents’ divorce, until he converted to
Christianity in high school. In one of
the USMC videos, by contrast, he said that he “wore [his] robes” to America,
that there are “two types of Turks who come to America,” that “[w]e came in
full gear,” that he was “taught that you hated me” through his “training and
[his] Madrasa Istanbul, and his “training and my Madrasa in Cairo before
[coming] to America”; he described himself as a “Turk,” and said he did not encounter
the two nations of Islam “until ’78 when we came here to America.” His bio said he was born in 1970, so that
also does not quite square up with another set of statements, where he said
“I’m Turkish”; that he “knew nothing about American until [he] came here when
[he] was 14 years old. Everything [he] knew about American culture [he] learned
through American television, whatever they allowed into the Turkish region”;
that he “moved to Brooklyn, New York”; and that he was “sworn to Jihad. At the
age of 9 until I was 18 years old and [he] became a believer in Jesus Christ.”
His schtick proved popular, and his counsel conceded that he
was a public figure.
Autry attended Liberty’s seminary while Caner served as
dean, and initially supported him and his message. However, Autry came to believe that Caner was
a detriment to the Christian religion and to Liberty. He thus joined the criticism of Caner by
posting the two videos in suit, wishing to expose Caner’s dishonesty because
Caner was making claims like those in the video “to countless churches and
before the U.S. Military.” Again the
DMCA takedown (though the second video, at least, seems to have been different
than the video in Smathers); again
the counternotification (and by the way, you go, religious critics!); again the
lawsuit.
The court found that summary judgment analysis was
appropriate; Caner had been allowed some written discovery, and failed to
identify any additional information he could seek that might present a dispute
of material fact, which was consistent with his “noticeably sparse” filings. “Plaintiff’s
unusual conduct gives rise to the impression that he seeks to reveal as little
as possible to conceal for as long as possible that his claims lack merit.” The court had equally strong words for
counsel’s conduct at the hearing. “For the first time, without the benefit of
written argument for all to see, or of citation (except sometimes to his own
beliefs or thoughts) Plaintiff cast aspersions on Defendant’s motives and past
association with Plaintiff and argued Defendant was not ‘qualified’ under the
fair use doctrine to criticize Plaintiff.”
The court singled out counsel’s attempt to distinguish “cyber terrorism”
from “cyber criticism”: “an anonymous cyber terrorist, in my mind, is not
entitled to the same Fair Use protection as a publicly identified professional of
Atheism.” Oh-kay then.
What might preclude summary judgment? Caner sought additional information about
Autry’s purpose in posting the videos.
At the hearing, Caner’s counsel represented that Autry was a disgruntled
former employee who once fully supported Caner but posted the video for the
purpose of harming him economically.
Discovery, counsel urged, would reveal Autry’s improper purpose, and
could also reveal that Autry profited from posting the videos and might provide
evidence about the impact on Caner’s career through substitution of the video
for a live lecture. “Plaintiff’s counsel made astounding claims during the
hearing that discovery would affect the fair use analysis by showing that
Defendant was not ‘qualified’ to direct ‘appropriate criticism’ at Plaintiff.”
None of that information (if obtained) would raise a dispute
of material fact. Use of the videos to
criticze Caner as a “disingenuous public figure” would still be fair use even
if (1) Autry were a disgruntled former employee who sought to harm Caner by
criticizing contradictions in his narratives; and (2) Autry profited from that criticism and reduced the market
for Caner’s work through the force of his criticism. The assertion that only speech by “qualified”
speakers or “appropriate criticism” could be fair use as against a public
figure was “ludicrous on its face”:
The First Amendment’s protections,
advanced by the fair use defense, have never applied to some bizarre oligarchy
of “qualified” speakers. Excluding speakers
who criticize public figures from protection due to the speaker’s social
status, level of education, or other nebulous “qualifying” factors would
nullify the broad protections the First Amendment is meant to provide, and
stifle the open discourse that stands against tyranny, intolerance, and
oppression.
(In another “ouch!” moment, the court pointed out that Caner
himself has extolled the virtues of free thought and the dangers of censorship
as part of his love for America.)
The second video in suit had never been submitted to the Copyright
Office at all, so it was out. (The court
suggested it wouldn’t matter because the fair use analysis would be the same,
of course.) The first video had been
submitted, though not registered; the court found that all that was required
for the court to proceed was the completed application, a (mistaken)
proposition with a fair amount of judicial support.
So, fair use: the purpose and character of the use here
supported Autry. Autry’s sworn
declaration said that he posted the video for the purpose of making
“religiously based criticism against a public figure on a matter of public
concern . . . based on [his] sincerely held religious beliefs” that “it is
morally wrong to lie, and especially wrong to lie in a church and to U.S.
Marines.” This was essentially conceded,
despite Caner’s aspersions on his motives.
Criticizing Caner was a transformative purpose. Autry’s blog posts “overtly contrasted
Plaintiff’s statements in the videos with statements Plaintiff had made in other
speeches and writings.” His use was not
to disseminate or profit from the video’s message about Caner’s background in
Islam, but rather to expose contradictions and dishonesty in a public figure’s
speech. “[T]his criticism lies at the heart of what fair use seeks to protect,
in that it targets the allegedly inconsistent statements of a person who has
placed himself in the public spotlight through the very narratives now under
fire.”
Even a commercial, for-profit use is fair use if it’s
transformative. But Autry’s declaration also said he didn’t post the videos to
make money and that he never received any financial benefit from doing so. Caner suggested that Autry might be profiting
through “lectures or speeches,” but so what?
“Bloggers sometimes profit from their posts through advertisements or
other revenue, just as publishers profit from book reviews and other
critiques. Even if Plaintiff showed that
Defendant wished to profit from criticizing Plaintiff, or that he did profit from
his blog posts containing the [video], the transformative, critical use of the
video still receives fair use protection.”
As for the argument that Autry’s vindictive purpose precluded
fair use, that too was unsupported by the case law. While fair use distinguishes between good and
bad faith, that doesn’t mean that the animus of an alleged infringer toward the
copyright owner matters. Instead,
copyright law focuses
most intensely on whether the purpose of the use is to
“exploit[] the copyright material without paying the customary price.” “Many
speakers who criticize others using copyrighted works may be motivated to do so
based on dislike or distrust of the object of their criticism. If that were a barrier to free speech, fair
use would offer little protection, and the analysis would delve courts into a
complex and highly subjective inquiry about the motivations and relationships
between parties.” The relevant bad faith
is “unscrupulous appropriation of another’s work for personal profit,” not dislike.
Nature of the work: Caner’s work was “clearly intended to be
informational,” so that also favored fair use.
Autry used the full work, but that wasn’t fatal, depending
on the purpose and character of the use.
Indeed, “it would be senseless to permit the [alleged infringer] to use
the [work at issue] for factual, historical purposes, but permit [the alleged
infringer] to show only a half, or two-thirds of it.” Autry said that he used the whole work in
order to make his criticism more forceful, “so he could point out
contradictions without readers questioning whether he had taken Plaintiff’s
statements out of context.” The court
didn’t need to rely on Autry’s explanation, though: “a criticism involving
contradictory statements may necessitate use of an entire work,” just as the
NFL could legitimately use an entire copyrighted logo for historical and
factual purposes. “[I]t would be
senseless to allow Defendant to criticize Plaintiff, but only less effectively,
by using portions of the video.”
Market effect: the critical, transformative use made market
substitution less likely. Demand suppression
is not actionable, and the court refused to credit Caner’s speculation that
posting the entire presentation could deter groups from asking him to speak at
their own gatherings because they already had access to his speech. (Query: if the speeches aren’t being recorded
with his authorization, does this even matter since it’s not substituting for
copyrighted works?) That just doesn’t
matter, because Autry’s use was
critical and transformative.
No reasonable jury could find for Caner. The court indicated
that it would consider a fee award.
If I were Caner, I’d prepare to write a check. Make that two checks.
1 comment:
This is Jason Smathers' attorney. To address your first parenthetical question--"Why is he the copyright owner?"--that's a very good question that we were hoping the judge would answer.
Alas, in neither case did the judge opine on the question, since both found fair use and stopped analyzing. But if you are interested in the question, I humbly recommend the filings in the Texas case (both cases started as Case No. 13-494 before the case against Autry was severed).
Not only was it mandatory DOD policy to require all contracts for speeches like Caner's to give unlimited license to the government (which the DOD then transferred to Smathers by way of a FOIA release of the videos), but Caner's only counterargument on that question was his attorney's unsworn statement (and this is actually a direct quote), "According to Dr. Caner, even though he was nominally compensated for delivering the speeches to the U.S. Marines as an independent contractor, he is doubtful that there was even a written agreement that was signed. To the best of his recollection, Dr. did not sign an agreement. Thus, Dr. Caner did not assign any copyrights as argued by Mr. Smathers." No sworn declaration, no nothing. Just a statement in a brief that his client doesn't remember doing this, so obviously the Court should find in his favor. Make of that what you will.
Side note, Smathers has already filed a Bill of Costs and a Motion for Attorneys' Fees. The Clerk taxed the costs yesterday, and Caner's opposition to the fee motion is due 5/23. It is our sincere hope that after these cases, Caner and people like him will hesitate before trying to use copyright infringement actions to silence critics.
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