Fair use twofer: motion to dismiss and summary judgment for critical uses

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 Canercase 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 , 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.
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