Bringing Lawsuit to Stifle Online Criticism Held Ground for Awarding Attorneys’ Fees

Virginia lacks an anti-SLAPP statute, but that doesn’t mean filing a frivolous lawsuit focused on eliminating criticism rather than enforcing actual legal rights can’t result in being ordered to reimburse the defendant’s legal fees. Some creative plaintiffs, finding themselves the subject of online criticism but not wanting to sue for defamation either because of an inability to satisfy the elements of the actionable libel or slander or because of other potential problems with bringing a defamation claim, have resorted to copyright law in pursuit of their goals. But as demonstrated by a recent decision of the Western District of Virginia, if the plaintiff has no valid copyright-infringement claim and/or takes unreasonable positions (either in making arguments to the court or in the process of settlement negotiations), the court has the authority not only to dismiss the case but to order the plaintiff to pay the defendant a reasonable amount of attorneys’ fees.

In Ergun M. Caner v. Jonathan Autry, the court found that “Plaintiff filed a copyright infringement suit to stifle criticism, not to protect any legitimate interest in his work” and ordered him to pay Mr. Autry $34,389.59 in attorneys’ fees and costs. The court described the facts of the case essentially as follows:

The plaintiff, Mr. Caner, had lived in Ohio since he was a toddler. His father was a devout Muslim and highly involved in the Islamic community in Ohio. Some time after Mr. Caner entered high school, he became a born-again Christian and started going to church. He eventually obtained both a Master of Theology and a Doctor of Theology. About a year after the terrorist attacks on September 11, 2001, Mr. Caner and his brother wrote a popular book about their upbringing as Muslims and their conversion to Christianity.

Jerry Falwell hired Mr. Caner in 2005 to serve as the Dean of the Liberty Theological Seminary. At around this time, the court found, Mr. Caner “started making claims in his public speeches that he had grown up as a Muslim in Turkey, steeped and Money Stream.jpgtrained in jihad, in a tradition that went back several generations in his father’s family.” Upon becoming aware of accusations that Mr. Caner was not being honest with the public about his background, Liberty University initiated an official inquiry and later demoted him in light of its finding that his factual statements contained contradictions. Soon afterwards, he left to join another college.

Mr. Autry had attended Liberty Theological Seminary during the time Mr. Caner served as Dean. Mr. Autry felt that Mr. Caner was a detriment to the Christian religion and to Liberty University, and he took to YouTube to express his views. He posted two videos that were relevant to the lawsuit. In the first, Mr. Caner was shown proclaiming his Muslim upbringing in Turkey (an assertion Mr. Autry believed to be dishonest), and the second contained footage of Mr. Caner during various presentations and sermons.

Mr. Caner issued a copyright takedown notice to, claiming he possessed copyright protection in the videos. YouTube removed the videos but indicated it would repost them unless Mr. Caner filed legal action to enforce his supposed claims. So he did. Trouble is, the court disagreed that he had any valid copyright claim and that the claim was brought in bad faith, to suppress legitimate criticism.

The Copyright Act allows a district court to award costs and reasonable attorneys’ fees to the prevailing party in a copyright case. (See 17 U.S.C. ยง 505). In determining whether to award fees to a prevailing party in a copyright case, courts consider: (1) the motivation of the parties, (2) the objective reasonableness of the legal and factual positions advanced, (3) the need in particular circumstances to advance considerations of compensation and deterrence, and (4) any other relevant factor presented. While settlement discussions are inadmissible in most contexts, courts can consider the parties’ settlement negotiations as part of its “good faith” inquiry.

Here, the court found not only that the copyright claims lacked merit, but that Mr. Caner displayed improper motives in bringing the suit. Shortly after the case was filed, Mr. Autry removed some uncontested videos of Mr. Caner and agreed that he would not post any videos of him in the future if he would drop the suit. Settlement discussions broke down when Mr. Caner insisted on nondisparagement agreements from not only Mr. Autry but also his wife and three young children (aged four, five, and seven at the time). In the course of these discussions, Mr. Caner indicated that he might “follow this copyright suit with defamation lawsuits and with the likely outcome of bankrupting those involved.”

The court found that Mr. Caner’s conduct “strongly suggests that Plaintiff cared more about protecting himself from criticism and harassing his critics than protecting his alleged copyrights,” dismissed the case, and awarded fees.

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