By Bob Allen
For the second time in a month, a Georgia Baptist college president has lost a legal battle to block the online posting of videos of him giving contradictory versions of a famous “Jihad to Jesus” testimony popular in Southern Baptist preaching circles after 9/11.
U.S. District Judge Norman Moon in Lynchburg, Va., granted summary judgment May 14 against Brewton-Parker College President Ergun Caner’s copyright claim to two videos posted online by Jonathan Autry, a blogger who attended Liberty Theological Seminary while Caner was dean.
Autry, represented by his brother, attorney Joshua Autry of Lancaster, Pa., claimed in his defense that he once supported Caner but lost confidence in him after blogs and news articles began casting doubts on the veracity of claims that he was raised overseas and trained as a terrorist before his dramatic conversion to Christianity prevented him from carrying out an act like the terrorist attacks against America on Sept. 11, 2001.
Caner sued last August, claiming that he owned the copyright to videos of him speaking in training sessions to U.S. Marines about what they needed to know about Islam before being deployed in 2005, and that Autry and another blogger posted them online without his permission.
The judge, however, determined that Autry’s posting of the material constituted “fair use,” because it was for the purpose of making “religiously based criticism against a public figure on a matter of public concern” based on Autry’s sincerely held religious beliefs that “it is morally wrong to lie, and especially wrong to lie in a church and to U.S. Marines.”
Copyright is the right of an author to control the reproduction and use of a creative expression fixed in forms like paper or a computer disk. Not all unauthorized use of copyrighted material, however, is infringement.
Courts have recognized a doctrine of “fair use” for purposes including criticism, commentary and news reporting, taking into account factors such as the purpose and character of use, nature of the copyrighted work, the amount of copyrighted material used and any effect on its market value.
During an oral hearing April 30, Caner’s lawyer introduced an argument not in the written complaint that Autry was “not qualified” to make a fair use claim, because he is a disgruntled former employee motivated by revenge and using a copyright defense to hurt Caner financially by engaging in “cyber-terrorism.”
Judge Moon called that an “astounding” claim that is “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,” Moon ruled. “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.”
The judge observed in a footnote differences in what Caner told Marines about his background in 2005 and what is published in a book that he co-wrote with his younger brother published in 2002.
According to Unveiling Islam: An Insider’s Look at Muslim Life and Beliefs, the judge noted, Caner’s father and mother met at a university in Sweden, where Ergun was born in 1966, then moved to America, where his brother, Emir, “was born after we arrived in Ohio,” in 1970.
The book said Ergun Caner attended a mosque in Columbus, Ohio, during weekend visits to his father after his parents’ 1978 divorce until he converted to Christianity at a friend’s urging in high school.
In the Marine training session videos, Caner introduced himself as a Turk who was “taught that you hated me” through his training at a Muslim school in Egypt. Caner said he knew nothing about American culture except what he saw on American TV until he came to the U.S. at age 14.
Caner said he lived in Brooklyn, N.Y., and was “sworn to Jihad” from age 9 until he became a believer in Christ at 18.
For the purposes of his ruling, however, the judge said he did not consider whether or not the blogs criticizing Caner were true, but only that their posting was during a time when Caner’s remarks were under media scrutiny.
By issuing summary judgment, a ruling in favor of one party determined without a trial, the judge determined that allowing further proceedings would only delay an inevitable outcome.
“I find that more discovery would not give rise to a dispute of material fact preventing the entry of summary judgment,” the judge ruled. “Even if Plaintiff obtained the information he seeks, no reasonable juror could find for Plaintiff.”
“I will not allow Plaintiff to strategically prolong this case through an unsupported request for further discovery,” Judge Moon said.
A federal judge in Texas handed down a similar decision April 17, finding fair use by Jason Smathers, a blogger and Southern Baptist pastor who posted videos of Caner training Marines at New River, N.C., that he obtained from the U.S. government through a Freedom of Information Act request in 2010.
Smathers embedded new links to videos that YouTube restored after reviewing the court order on his blog, Witnesses Unto Me, on April 22.
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