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Minister ordered to pay attorney’s fees after suit tossed

Peter Vieth//July 16, 2014

Minister ordered to pay attorney’s fees after suit tossed

Peter Vieth//July 16, 2014

BDenouncing what he said were frivolous arguments and delaying tactics designed to stifle online criticism, a Lynchburg federal judge has tossed a Baptist minister’s copyright infringement claims and ordered him to pay $34,262.50 in attorney’s fees.

In making the fee award, U.S. District Judge Norman K. Moon questioned Ergun Caner’s motivations for bringing suit against a Virginia man who posted YouTube videos of the minister’s speeches. To divine his motives, Moon even reviewed Caner’s conduct during early settlement negotiations.

Caner’s tactics suggested he “cared more about protecting himself from criticism and harassing his critics than protecting his alleged copyrights,” Moon said.

A changing story

Having converted from Islam to Christianity in high school, Caner gained notice for his perspective on the two religions in the years after the terrorist attacks of Sept. 11, 2001. He was hired in 2005 as dean of Liberty University’s theological seminary.

Caner began to publicly embellish his life story, claiming he was exposed to anti-American jihadist doctrines while growing up as a Muslim in Turkey. Those accounts conflicted with his own earlier-published account of his childhood in Ohio.

“In order to make his story more compelling, he fabricated things,” said Lancaster, Pennsylvania, lawyer Joshua M. Autry, who represented his brother, the defendant in the case.

When news outlets took notice of the contradictions in Caner’s narratives, Liberty U investigated and then demoted Caner in 2010.

Caner took a position at a Texas Baptist college in 2011 and – this year – assumed the presidency of Brewton-Parker College in Georgia.

Offended by Caner’s apparent dishonesty, Jonathan Autry, a former student at Liberty’s seminary, posted two videos of Caner speeches on YouTube to draw attention to the minister’s baseless claims of a Middle East upbringing.

Caner demanded YouTube take down the videos claiming a copyright violation. Autry contested removal of the videos. YouTube told Caner it would repost the videos unless he filed legal action within 10 business days.

Caner brought suit in Texas, and a judge transferred the claims against Autry to Virginia.

Settlement efforts considered

Autry quickly sought to make peace, Moon said. The contested videos already had been removed. Autry pulled down additional videos and agreed not to post any other Caner videos if Caner would drop the suit.

Autry agreed to a non-disparagement contract and answered some informal interrogatories at Caner’s request, but he refused to have his wife and three young children sign similar agreements. He refused to turn over private correspondence without a subpoena.

Caner said he sought the family non-disparagement agreements out of fear that Autry would post videos using their names instead of his own.

Moon was not impressed with Caner’s claim of good faith settlement efforts.

Caner “insisted on terms that overwhelmingly focused on eliminating criticism, rather than protecting any copyright claims he had” in the videos, Moon said.

Moon said it was proper to consider settlement discussions on a motion for fees to gauge what relief a plaintiff sought or the extent of success achieved by a plaintiff.

Arguments described as ‘frivolous’

Moon also found fault with Caner’s litigation conduct.

It took an extra month, considerable prodding from a clerk and a show cause order from the court to get Caner to associate local counsel, Moon said.

Opposing a summary judgment motion, Caner cited the need for discovery regarding unspecified issues, but he had failed to send any discovery requests in the preceding months.

“This pattern of delay, dispute, and then neglect of crucial issues is woven throughout this case,” Moon said.

The judge then criticized Caner’s legal positions.

While Autry argued his posting of the videos was protected by the “fair use” provision of copyright law, Caner contended that position was weakened because Autry was merely a disgruntled former employer with a vindictive purpose.

“His continuous frivolous arguments have unnecessarily extended the length and cost of this litigation,” Moon said of Caner.

An award of attorneys’ fees for victorious copyright litigants “serves both to discourage meritless lawsuits that might stifle legitimate criticism, and to encourage defendants to vindicate their rights against these meritless suits,” Moon wrote.

Moon approved an award for 135.8 hours, billed mostly at $250 an hour.

Moon’s May 14 opinion dismissing the copyright claims is Caner v. Autry (VLW 014-3-261).

The July 1 opinion awarding attorney fees is Caner v. Autry (VLW014-3-335).

The outcome of the case is “highly significant,” the attorney Autry said.

Moon recognized that Caner’s suit was not a proper use of copyright law to protect an owner’s rights to protected works, he said.

“The public figure is just trying to hide those works, not sell them,” Autry said. “The court has explicitly said that’s not what copyright law is all about.”

Caner was represented by David C. Gibbs of Bartonville, Texas. He did not respond to a request for comment.

VLW 014-3-335

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