Case 6:14-cv-00004-NKM-RSB Document 65 Filed 05/14/14 Page 1 of 41 Pageid#: 392
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF VIRGINIA
`LYNCHBURG DIVISION
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`
`
`ERGUN M. CANER,
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`
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`
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`v.
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`JONATHAN AUTRY,
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`
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`
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`CASE NO. 6:14-cv-00004
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`
`MEMORANDUM OPINION
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`
`
`JUDGE NORMAN K. MOON
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` Plaintiff,
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`Defendant.
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`This case is before the Court on Defendant Jonathan Autry’s Motion to Dismiss the
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`Amended Complaint for Failure to State a Claim, or in the Alternative, for Summary Judgment
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`(“Motion”) (docket no. 28), filed on November 26, 2013. Ergun M. Caner (“Plaintiff” or
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`“Caner”) originally filed this action in the Northern District of Texas, claiming that Jonathan
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`Autry (“Defendant” or “Autry”) and another person, Jason Smathers, infringed his copyrights by
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`posting various videos on YouTube.com and other websites. Plaintiff filed his Amended
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`Complaint (docket no. 13) on October 14, 2013, in the Northern District of Texas. Plaintiff
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`seeks a permanent injunction restraining Defendant from any further infringement, along with
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`costs, attorney’s fees, investigatory fees, and expenses available under 17 U.S.C. § 505 (the
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`“Copyright Act”). Am. Compl. ¶¶ 48–50.
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`Ergun M. Caner was born to parents who met at a university in Sweden, and he lived
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`with them and his brothers in Ohio from the time he was a toddler.1
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` His father was a devout
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`Muslim, highly involved in the Islamic Community in Ohio, and after a painful divorce, Plaintiff
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`spent weekend visitation at the mosque in Columbus, Ohio with his father. Sometime during
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`1 For clarity, I provide a brief synopsis of the facts surrounding this case here. In the Background Section and
`throughout this opinion, I specify the source and admissibility for each piece of this information.
`1
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`high school, Plaintiff began attending church with a friend and became a born-again Christian,
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`going on to obtain a Master of Theology from Southeastern Baptist Theological Seminary in
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`Wake Forest, North Carolina, and a Doctor of Theology from the University of South Africa.
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`About a year after the terrorist attacks on September 11, 2001, Plaintiff and his brother, Emir
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`Caner, wrote what became a popular book about their upbringing as Muslims in Ohio and their
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`conversion to Christianity. Plaintiff became a spokesperson for this background, and was hired
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`by Jerry Fallwell in 2005 to serve as the dean of the Liberty Theological Seminary.
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`Around this time, Plaintiff started making claims in his public speeches that he had
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`grown up as a Muslim in Turkey, steeped and trained in jihad, in a tradition that went back
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`several generations in his father’s family. After bloggers and major news media outlets began
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`reporting on contradictions in Plaintiff’s narrative, Liberty University conducted an official
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`inquiry into these accusations in May 2010. Shortly thereafter, Liberty demoted Plaintiff from
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`his position as dean, citing contradictions in factual statements he had made. By 2011, Plaintiff
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`announced that he was called to serve as provost and vice president of academic affairs at
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`Arlington Baptist College in North Texas.
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`Defendant attended Liberty Theological Seminary during the time Plaintiff served as
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`dean, and as Plaintiff concedes, initially supported Plaintiff and his message. Eventually,
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`revelations led Defendant to believe that Plaintiff was a detriment to the Christian religion and
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`their common institution, Liberty University. Although accusations against Plaintiff emerged in
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`2010, it was not until the spring of 2011 and the spring of 2012 that Defendant joined the
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`criticism by posting the Count Two and Count One Videos, respectively. Mot., Ex. A ¶¶ 8, 18.
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`In February 2012, Defendant posted the Count One Video, in which Plaintiff proclaimed his
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`Muslim upbringing in Turkey and expounded on how Muslims in the Middle East would view
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`2
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`the U.S. Marines and approach them from the perspective of jihad. Mot., Ex. A ¶¶ 9, 18, 20–23.
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`Defendant wished to expose Plaintiff’s dishonesty, knowing he was making claims like those in
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`the Count One Video to countless churches and before the U.S. Military. Mot., Ex. A ¶¶ 21–23.
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`Plaintiff responded to Defendant’s videos by claiming he possessed copyright protection
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`over the Count One and Two Videos, filing a takedown notice with YouTube.com in May 2013.
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`Am. Compl. ¶ 9. Defendant contested the videos’ removal, and on June 4, 2013, YouTube.com
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`informed Plaintiff that it would repost the videos unless Plaintiff filed legal action within ten
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`business days. Am. Compl. ¶ 12. This suit followed in the Northern District of Texas, on June
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`18, 2013.
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`In the Northern District of Texas, the parties filed various motions related to this case,
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`including Defendant’s Motion. Plaintiff responded to the Motion on January 6, 2014. On
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`January 15, 2014, the Northern District of Texas severed Jonathan Autry from the case and
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`transferred it to this Court, where only two videos mentioned in the Amended Complaint remain
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`at issue.
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`Upon arrival in this Court and after various motions by Defendant, Magistrate Judge
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`Robert S. Ballou ordered the parties to hold a scheduling conference, exchange initial
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`disclosures, and exchange written discovery while the Motion was pending, but allowed
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`Defendant to stay further discovery until the Motion’s disposition. See April 11, 2014 Order
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`(docket no. 56). On April 4, 2014, Defendant filed his reply on the Motion. On April 17, 2014,
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`Defendant filed notice with this Court that the Northern District of Texas granted an identical
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`motion to dismiss as to Jason Smathers, the other original defendant. On April 28, 2014,
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`Defendant filed an unopposed Motion to Supplement the Record (docket no. 58) with copies of
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`the copyright applications Plaintiff had filed with the Copyright Office, which this Court granted.
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`3
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`See April 29, 2014 Order (docket no. 59). A telephonic hearing on the Motion was held at 2:00
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`p.m. on April 30, 2014. After the hearing, Defendant filed a Second Motion to Supplement the
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`Record (docket no. 63) with information contesting Plaintiff’s assertion during the hearing that
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`Defendant was a disgruntled former employee.
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`For the reasons that follow, I will CONSIDER the Motion as one for summary judgment
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`and GRANT that Motion (docket no. 28). I will DENY the Second Motion to Supplement the
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`Record (docket no. 63).
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`II. BACKGROUND2
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`
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`Plaintiff resides in Texas and alleged he was employed at Arlington Baptist College in
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`Arlington, Texas.
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`3 The Amended Complaint alleges that Defendant resided in Lynchburg,
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`Virginia.4
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` This Amended Complaint makes claims under the Copyright Act, 17 U.S.C. §§ 101,
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`2 Plaintiff’s response to the Motion is very brief, essentially contesting only whether he “paid the Copyright
`Registration fees, deposited the transcripts with the Copyright Office, and has received receipts of the payment and
`deposit from the United States Copyright Office.” Resp. at 1. This Court has gathered background from the
`Amended Complaint, sources from which it can take judicial notice, and from the record before it on this converted
`motion for summary judgment, as noted for each source outside the Amended Complaint throughout.
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` Although Plaintiff does not specify his place of employment, the address he lists for his place of employment
`corresponds to the one Arlington Baptist College lists on its website, of which this Court may sua sponte take
`judicial notice. See Jeandron v. Bd. of Regents of Univ. Sys. of Maryland, 510 F. App'x 223, 227–28 (4th Cir. 2013)
`(approving a district court’s broad discretion to consider a university’s continuous enrollment requirement from its
`website on a motion to dismiss); Fed. R. Ev. 201(c)(1), (d) (allowing a district court to take judicial notice of facts).
`Compare Am. Compl. (“Dr. Caner’s place of employment is located at 3001 West Division Street, Arlington, TX
`76012.”), with ArlingtonBaptistCollege.edu, Arlington Baptist College Location and Address,
`http://www.arlingtonbaptistcollege.edu/contact/arlington-baptist-college-location-and-address (listing address as
`3001 W Division St) (last visited Apr. 25, 2014). However, I take judicial notice under Rule 201(b)(2) and
`Jeandron that Plaintiff has since been hired as President of Brewton-Parker College in Decatur, Georgia, which
`describes itself as a “Georgia Baptist College” and announced Dr. Caner’s selection on its website. See Brewton-
`Parker College Calls Caner as President: Controversial Educator Determined to Raise the College’s Profile,
`bpc.edu, BPC News, http://www.bpc.edu/news_and_info/news/2013/December/12-
`3_Brewton_Parker_College_Calls_Caner_as_President.htm (last viewed May 14, 2014).
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`4 Jonathan Autry’s Declaration, attached to the Motion, states that since the filing of the Amended Complaint, he has
`moved to the Eastern District of Virginia. Mot., Ex. A ¶ 3. Dr. Caner has not objected to venue. Despite
`Defendant’s move, I find proper venue in this district, as it is the one “in which a substantial part of the events or
`omissions giving rise to the claim occurred,” and since the two parties do not live in the same state. See 28 U.S.C. §
`1391(b)(2).
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` 3
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`4
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`501. Plaintiff became a prominent leader in the evangelical Christian community5 sometime
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`after the September 11, 2001 terrorist attacks, when he spoke and wrote to numerous audiences
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`throughout the United States about his upbringing as a Muslim in either Turkey or Ohio,6
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` and his
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`5 Plaintiff’s counsel repeatedly conceded that Plaintiff serves as a visible, public figure within the evangelical
`Christian community during the hearing on this Motion. During the hearing, he noted that Plaintiff “is a college
`pres[ident],” that he “has written a number of books,” and that he “is someone that is out in the public square.”
`Hearing Tr. at 10, Apr. 30, 2014 (docket no. 64). He later compared Plaintiff to “authors, public speakers, [and]
`educational leaders,” and noted Plaintiff acts as a “spokesperson and as an academ[ician].” Id. at 10, 28. Indeed,
`the United States Marines wanted to hear him speak such that Plaintiff “donated the event . . . almost like a pro bono
`or a charity event for the Military” when he made his presentation, and suggested Plaintiff was donated his travel
`expenses. Id. at 11, 14. These statements are admissible as opposing party’s statements, made by Plaintiff’s
`attorney in a representative capacity. See Fed. R. Ev. 801(d)(2). Furthermore, as noted in footnote 7, this Court
`takes judicial notice of Plaintiff’s status as a public figure from the newspaper sources cited in footnote 11, for the
`reasons noted therein. I note I do not use these newspaper sources for the truth of the matters asserted, only to show
`Plaintiff has been a frequent subject of local and national media coverage as a public figure. See Fed. R. Ev. 801(c).
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`Information about Plaintiff’s degrees comes directly from his website, and I take notice of it as an indisputable fact
`under Federal Rule of Evidence 201(b)(2). See also O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1224–25
`(10th Cir. 2007) (noting company’s failure to dispute the earnings history it listed on its own website made that
`information capable of judicial notice and indisputable under Rule 201(b)). See also bio, erguncaner.com,
`http://www.erguncaner.com/biography/ (last viewed May 13, 2014).
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` 6
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` Compare Ergun Mehmet Caner & Emir Fethi Caner, Unveiling Islam: An Insider’s Look at Muslim Life and
`Beliefs 17–19 (2002) [hereinafter “Unveiling Islam”] (noting Plaintiff’s father and mother met at a university in
`Sweden, where Ergun was born, then moved “to America,” where “Emir was born after we arrived in Ohio,” and
`discussing how Ergun attended a mosque on Broad Street in Columbus, Ohio as a teenager during weekend visits to
`his father after his parents’ divorce, until he converted to Christianity at a friend’s urging in high school) with First
`Supplement to Record, Copyright Application for “Training Session: What You Need to know About Islam—Base
`Theater” at 2–4, 10 [hereinafter “Base Theater Application”] (noting Plaintiff “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,” describing himself as a “Turk,” and saying he did not encounter the two nations of Islam
`“until ’78 when we came here to America”) and Dr. Emir Caner, Truett-McConnell College,
`http://www.truett.edu/abouttmc/meet-dr-caner.html (noting Dr. Emir Caner was “[b]orn on August 25, 1970 . . . .”);
`First Supplement to Record, Copyright Application for “Training Session: What You Need to know About Islam—
`O-Club” at 2, 5 [hereinafter “O-Club Application”] (stating “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,” 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”).
`
` I
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` take judicial notice of Plaintiff’s own narratives of his upbringing from the copyright applications he told this
`Court he submitted to the Copyright Office, and from his book, Unveiling Islam. These sources provide
`“indisputable” evidence of which this Court may take notice under Rule 201(b)(2) on summary judgment. See Fed.
`R. Ev. 201(b)(2); O'Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1224–25 (10th Cir. 2007) (noting
`company’s failure to dispute the earnings history it listed on its own website made that information capable of
`judicial notice and indisputable under Rule 201(b)). Evidence from these sources is also admissible under Federal
`Rule of Evidence 801(d)(2) as an opposing party’s statements, or alternatively under Rule 801(c) as not for the truth
`of where Plaintiff was raised, but to show the content of his speeches and writings. Fed. R. Ev. 801(c); 801(d)(2). I
`take notice of Dr. Emir Caner’s biographical details from the Truett-McConnell College website. See, e.g.,
`Jeandron, 510 F. App'x at 227–28; Fed. R. Ev. 201(b)(2), (c)(1), (d).
`5
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`conversion to Christianity as a teenager.7 Plaintiff became dean of the theological seminary at
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`Liberty University in 2005, and served in that post until 2010.8 Controversy emerged in 2010
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`when public questions were raised regarding some details of Plaintiff’s background. While he
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`claimed to have been raised as a devout Muslim and jihadist in Turkey until his teenage years,9
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`
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`various bloggers and newspapers began to point out that other speeches and a book Plaintiff
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`
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`7 Again, Plaintiff’s attorney has conceded Plaintiff serves as a “college president,” author who has “written a number
`of books,” “someone in the public square,” “spokesperson and . . . academician.” Hearing Tr. at 10, 11, 14, 28, Apr.
`30, 2014 (docket no. 64). This Court may take judicial notice under Federal Rule of Evidence 201(b) of facts “not
`subject to reasonable dispute” because they are “generally known within the trial court’s territorial jurisdiction” or
`“can be accurately and readily determined by sources whose accuracy cannot reasonably be questioned.” Fed. R.
`Ev. 201(b)(2). This Court takes judicial notice of the claims made by Plaintiff about his background in his own
`book, Unveiling Islam, where he and his brother narrate their upbringing as Muslims and their understanding of
`jihad. Unveiling Islam, supra note 5, at 13–20, 26 (narrating their daily life as Muslims, Plaintiff’s conversion to
`Christianity, and Plaintiff and his brother’s explanations of Islam ever since). This is indisputable information under
`Rule 201(b)(2); see also O'Toole, 499 F.3d at 1224–25. Courts frequently take notice of adjudicative facts from
`newspapers, and I do so here, not for the truth of the details asserted in the newspapers, but for Plaintiff’s general
`self-promoted reputation as a person with an Islamic upbringing who later converted to Christianity. See infra note
`11. Fed. R. Civ. P. 201(b); see, e.g., Crowder v. Kitagawa, 81 F.3d 1480, 1491–92 (9th Cir. 1996) (taking judicial
`notice of fact that plaintiff guide-dog users claiming discrimination based on blindness constituted only 1–5% of the
`blind population); Peters v. Delaware River Port Auth. of Pennsylvania & New Jersey, 16 F.3d 1346, 1356 (3d Cir.
`1994) (taking judicial notice of newspaper accounts that two state entities were in competition with one another at
`times); Associated Gen. Contractors of Am. v. City of Columbus, 936 F. Supp. 1363, 1425 (S.D. Ohio 1996) vacated
`on other grounds, 172 F.3d 411 (6th Cir. 1999) (collecting cases for proposition that a “court may take judicial
`notice of newspaper articles which demonstrate that certain facts were generally known within the court's
`jurisdiction”).
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` 8
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` This Court may take judicial notice under Federal Rule of Evidence 201(b)(1) and (b)(2) of facts “not subject to
`reasonable dispute” because they are “generally known within the trial court’s territorial jurisdiction” or “can be
`accurately and readily determined by sources whose accuracy cannot reasonably be questioned.” Fed. R. Ev.
`201(b). Liberty University’s website lists Dr. Caner as “President of Liberty Baptist Theological Seminary
`[“LBTS”] and Graduate School” multiple times, and states that he was dean of LBTS from 2005–2010. See, e.g.,
`Affiliated Schools and Companies, liberty.edu,
`http://www.liberty.edu/media/1410/archive_finding_aids/AFS%20RG-02.pdf (last viewed April 28, 2014);
`Evangelical Manifesto Erroneously Lists Prominent Evangelical Leaders as Signatories, News Articles, liberty.edu
`(May 16, 2008), http://www.liberty.edu/law/index.cfm?PID=18456&artid=6969 (last viewed on April 28, 2014);
`Dr. Caner guest on national call-in radio show, News & Events, liberty.edu (March 3, 2008)
`http://www.liberty.edu/index.cfm?PID=18495&MID=6218 (last viewed April 28, 2014).
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` 9
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` See First Supplement to Record, Copyright Application for O-Club at 2, 5 (noting “I’m Turkish,” that he “knew
`nothing about America until [he] came here when [he] was 14 years old. Everything [he] knew about American
`culture I learned through American television, whatever they allowed into the Turkish region,” that he “moved to
`Brooklyn, New York,” that he was “sworn to Jihad . . . [a]t the age of 9 until I was 18 years old and I became a
`believer in Jesus Christ”). I take judicial notice of these statements under Rule 201(b), and they are admissible
`under Rule 201(b) and either Rule 801(d)(2) or 801(c). Fed. R. Ev. 201(b)(2); Fed. R. Ev. 801(c), 801(d)(2); see
`also O'Toole v. Northrop Grumman Corp., 499 F.3d at 1224–25.
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`published with his brother10 claimed he moved to the United States from Sweden when he was
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`three or four years old.11 In May 2010, citing “several newspapers rais[ing] questions,” Liberty
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`University “form[ed] a committee to investigate a series of accusations against” Plaintiff, then
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`removed Plaintiff from his position as dean in July 2010; by 2011, Arlington Baptist College in
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`North Texas selected Plaintiff to serve as provost and vice president of academic affairs at
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`Arlington Baptist College in North Texas.12
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`Count One of the Amended Complaint claims Defendant posted a video on YouTube
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`(“Count One Video”) of a “presentation [Plaintiff made] as part of a training series on the
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`religion of Islam” to the United States Marines, for which Plaintiff was “compensated as an
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`10 Unveiling Islam, supra note 5, at 17 (noting Plaintiff’s father and mother met at university in Sweden, where
`Ergun was born, then moved “to America,” where “Emir was born after we arrived in Ohio,” and discussing how
`Ergun attended a mosque on Broad Street in Columbus, Ohio as a teenager); Fed. R. Ev. 201(b)(2); Fed. R. Ev.
`801(c), 801(d)(2); see also O'Toole, 499 F.3d at 1224–25.
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`11 I take judicial notice of these newspaper articles and blogs for facts that were generally known within the
`jurisdiction of this Court, i.e. the criticisms that surrounded Plaintiff beginning in 2010. I do not consider the
`contents of these articles for their truth, but for the existence of criticisms made against Plaintiff in the media at that
`time. Fed. R. Ev. 201(b)(1); Fed. R. Ev. 801(c). See, e.g., William Wan & Michelle Boorstein, Washington Post,
`June 30, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/06/29/AR2010062905331.html (last
`viewed May 8, 2014) [hereinafter “Liberty U. removing Ergun Caner”] (noting Liberty University was removing
`Plaintiff as dean after bloggers pointed out contradictions between his sermons, where he claimed to have been
`raised as a jihadist in Turkey until coming to the United States as a teenager, while his book claimed he moved to
`Ohio from Sweden as a young child); David Neff, Christianity Today, June 6, 2010,
`http://www.christianitytoday.com/gleanings/2010/june/liberty-university-cuts-caner-as-seminary-
`dean.html?paging=off (last viewed May 8, 2014) (same); Ray Reed, Caner Leaving Liberty for Texas College Post,
`Lynchburg News & Advance, Updated Feb. 18, 2013, http://www.newsadvance.com/news/local/caner-leaving-
`liberty-for-texas-college-post/article_5e7298ad-7002-5f0b-88cd-b574f128826f.html?mode=jqm (last viewed May 8,
`2014) (noting contradictions in Plaintiff’s narrative, including that he “often described himself as an immigrant from
`Turkey,” but that court documents indicated he was “born in Sweden and came to the United States with his family
`at about the age of 4”).
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`12 I take judicial notice of the investigation, removal, and move as facts generally known within this trial court’s
`jurisdiction, as announced by reliable sources with circumstantial guarantees of trustworthiness and more probative
`on the point than any other evidence that can reasonably be obtained, and serving the purposes of the Rules of
`Evidence and interests of justice. The investigation was announced by Liberty University on its website, the
`removal was reported in the Washington Post based on an official statement by Liberty University, and the move
`was reported in a press release on Plaintiff’s own website. Fed. R. Civ. P. 201(b); Fed. R. Ev. 807; Jeandron, 510 F.
`App'x at 227–28; O'Toole, 499 F.3d at 1224–25; University Advancement staff, Committee formed to investigate
`Caner statements, News & Events, liberty.edu (May 10, 2010),
`http://www.liberty.edu/promotionalpublications/index.cfm?PID=18495&MID=18644 (last viewed April 28, 2014);
`Liberty U. removing Ergun Caner; Press Release, erguncaner.com, Ergun Caner Called as Provost and Vice
`President of Academic Affairs at Arlington Baptist College (May 17, 2011),
`http://www.erguncaner.com/2011/05/17/arlingtonbiblecollege/ (last viewed April 28, 2014).
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`independent contractor.” Am. Compl. ¶ 15. Plaintiff claims Defendant thereby infringed on a
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`copyright “to the content of his presentation,” an application for which is “currently pending at
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`the Copyright Office.” Am. Compl. ¶ 14. On May 13, 2013, “Dr. Caner filed a takedown notice
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`. . . with Youtube.com . . . challenging Defendant’s use” of this video and others. Am. Compl.
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`¶ 9. Defendant then “challeng[ed] the removal of two of Dr. Caner’s videos” and YouTube.com
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`informed Plaintiff on June 4, 2013, that the “videos would be reposted to Autry’s account if Dr.
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`Caner did not initiate legal action within ten business days.” Am. Compl. ¶ 12.
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`Count Two of the Amended Complaint alleges Defendant infringed Plaintiff’s rights with
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`a second video, titled “Ergun Educated in Cairo, Egypt,” (“Count Two Video”) which “includes
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`live portions of recorded footage of Dr. Caner during various presentations and sermons.” Am.
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`Compl. ¶¶ 20–22. Plaintiff alleges he “owns the copyright to the content of his presentation and
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`has not authorized Autry to use any portion of this work.” Am. Compl. ¶ 22.
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`Plaintiff filed his initial complaint in the Northern District of Texas on June 18, 2013, and
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`his Amended Complaint on October 14, 2013. After filing various motions regarding
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`jurisdiction, venue, and severance, Defendant responded to the Amended Complaint with this
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`Motion on November 26, 2013. Defendant attached several exhibits to the Motion, related to his
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`reasons for posting the videos and to Jason Smathers’ alleged Freedom of Information Act
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`(“FOIA”) request for the Count One Video. Mot. to Dismiss, Exs. A–D. Plaintiff’s response to
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`the Motion attached an exhibit showing emails from the “Copyright Office” confirming that he
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`successfully uploaded a file entitled “Ergun Caner trains US Marines o_club.pdf,” and that he
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`applied and paid for applications for works entitled: “Training Session: What You Need to Know
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`About Islam—Base Theater” and “Training Session: What You Need to Know About Islam—O-
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`Club.” See Resp. on Mot. to Dismiss, Ex. A. The attachments did not include confirmation that
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`Plaintiff successfully uploaded a file corresponding with the “Base Theater” training session file
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`name, only two confirmations for files entitled “o_club.” Id.
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`Defendant submitted several more exhibits to this Court through two motions to
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`supplement the record. This Court granted leave for Defendant to supplement the record on the
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`first motion, with “electronic cop[ies] of Dr. Caner’s two application for copyrights,” with “the
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`transcript of Dr. Caner’s respective sermons” attached to each application. Mot. to Supplement
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`the Record ¶¶ 5–6 (docket no. 58). Defendant also submitted a second declaration by Jonathan
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`Autry, describing the extent of his and his wife’s employment for Liberty University, and for
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`Plaintiff. Second Mot. to Supplement the Record, Ex. A (docket no. 63).13
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`
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`III. LEGAL STANDARD
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`In order to survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must
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`contain facts sufficient “to raise a right to relief above the speculative level” and “state a claim to
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`relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
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`A claim is plausible if the complaint contains “factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged,” and if there is
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`“more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009). When considering a Rule 12(b)(6) motion, a court must accept all factual
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`allegations in the complaint as true, and must draw all reasonable inferences in favor of the
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`plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, a court is not required to
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`“accept the legal conclusions drawn from the facts” or “accept as true unwarranted inferences,
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`unreasonable conclusions, or arguments.” Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd.
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`P’ship, 213 F.3d 175, 180 (4th Cir. 2000) (citations omitted).
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`13 I do not consider the materials presented with Defendant’s Second Motion to Supplement the Record and hereby
`DENY the motion (docket no. 63).
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`
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`9
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`

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`Case 6:14-cv-00004-NKM-RSB Document 65 Filed 05/14/14 Page 10 of 41 Pageid#: 401
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`Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
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`judgment “if the movant shows that there is no genuine dispute as to any material fact and the
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`movant is entitled to judgment as a matter of law.” “As to materiality . . . [o]nly disputes over
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`facts that might affect the outcome of the suit under the governing law will properly preclude the
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`entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
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`order to preclude summary judgment, the dispute about a material fact must be “‘genuine,’ that
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`is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
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`Id. See also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
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`2001). However, if the evidence of a genuine issue of material fact “is merely colorable or is not
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`significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In
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`considering a motion for summary judgment under Rule 56, a court must view the record as a
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`whole and draw all reasonable inferences in the light most favorable to the nonmoving party.
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`See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Shaw v. Stroud, 13 F.3d 791,
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`798 (4th Cir. 1994).
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`IV. DISCUSSION
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`This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a), and venue is
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`proper pursuant to 28 U.S.C. § 1391(b)(2). Plaintiff’s claims arise under the Copyright Act, 17
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`U.S.C. §§ 101, 501, and 28 U.S.C. § 1338(a) provides that federal district courts “shall have
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`original jurisdiction of any civil action arising under any Act of Congress relating to . . .
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`copyrights . . . .” 28 U.S.C. § 1338(a). Defendant raises multiple issues with Plaintiff’s claim.
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`Those most central to resolution of this case include whether this Court should consider his
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`Motion as one to dismiss the complaint or as one for summary judgment, whether this Court can
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`consider the various exhibits submitted during briefing on the Motion, whether Plaintiff has
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`10
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`

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`Case 6:14-cv-00004-NKM-RSB Document 65 Filed 05/14/14 Page 11 of 41 Pageid#: 402
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`satisfied the prerequisites to filing a copyright suit, and whether Defendant’s posting of
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`Plaintiff’s videos constitutes fair use.
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`A. Exhibits and Alternative Motion for Summary Judgment
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`
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`Defendant has filed a Motion to dismiss, or in the alternative, for summary judgment, and
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`both parties have submitted exhibits with their briefs on the Motion. Defendant submitted
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`documents related to a FOIA request by Jason Smathers. Defendant also submitted a
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`declaration explaining his motivations for posting the Count One and Two Videos online.
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`Finally, during briefing, Defendant submitted a declaration about the employment status of
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`himself and his wife, and copies of the copyright applications that Plaintiff filed with the
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`Copyright Office. For his part, Plaintiff submitted emails from the “United States Copyright
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`Office,” which confirm application and payment for two works: (1) “Training Session: What
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`You Need to Know about Islam—Base Theater,” and (2) “Training Session: What You Need to
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`Know about Islam—O-Club,” and deposit of the “O-Club” work.
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`1. Exhibits Extrinsic to the Pleadings
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`Rule 12(d) prohibits district courts from considering evidence outside the pleadings on
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`motions to dismiss, unless the process is converted to summary judgment. See Fed. R. Civ. P.
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`12(d). However, without risking conversion of the proceedings, courts can consider “documents
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`attached to the complaint, as well as those attached to [a] motion to dismiss, so long as they are
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`integral to the complaint and authentic,” including documents “incorporated into the complaint.”
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`Bala v. Commonwealth of Virginia Dep't of Conservation & Recreation, 532 F. App'x 332, 334
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`(4th Cir. 2013) (internal quotation marks omitted) (citing Sec'y of State for