Motion for Legal Fees in Caner Case Reveals Caner's Real Motives in Suing Autry and Smathers

Yesterday, Jonathan Autry's lawyer (his brother Joshua) filed a motion with the United States District Court in West Virginia, asking the court to require Ergun Caner to pay for Jonathan's legal expenses in defending himself from the frivolous copyright infringement lawsuit brought by Caner. Caner's lawsuit was tossed out of court on summary judgment by Judge Norman K. Moon just a few weeks ago.

Autry's motion for legal fees can be viewed at this link:  Motion for Fees and Costs - May 28, 2014

But really the best read is Joshua Autry's brief filed with the court to support the above motion: Brief in Support of Motion for Fees and Costs - May 28, 2014. This is a 26-page filing in which Joshua Autry makes his argument for legal fees to be paid by Caner. Here is the outline of Autry's brief:

I. This Court should award attorney fees to Jonathan

     A. Caner acted in bad faith and for improper motivation
             1. Caner filed this lawsuit to suppress dissent
             2. Caner made it clear that in settlement that he only cares about criticism.
             3. Caner's dilatory tactics increased the cost of defending this action
             4. Courts have found bad faith and improper motivation in similar cases.

    B.  This case is frivolous
             1. Caner has conceded nearly every single argument by Jonathan
             2. All Caner's arguments at oral argument were frivolous
             3. Courts have found similar complaints frivolous

   C. Fees will deter censorship-focuses plaintiffs and encourage free speech

   D. The amount and rate of fees is reasonable

II. Conclusion

Jonathan requests this Honorable Court award him $29,314.59 for fees and costs.

A few things from the brief that I thought relevant to Watchdog readers:

Joshua Autry references an email list of questions from Caner's lawyer as evidence that Caner's motive in filing this lawsuit was to suppress dissent, not to protect his copyright. You can read this email here, along with Jonathan Autry's responses to each question. In these questions, Caner himself wanted names of people who had criticized him. Caner wanted copies of correspondence between Autry and Caner's other critics. 

Here are the questions Caner wanted Autry to answer (my clarifications are in brackets):

1. Who at Liberty knew you were doing this? ["this" meaning Tweeting and blogging criticism directed at Caner]

2. How often did you upload from LU and the LU server? [LU is Liberty University]

3. Who is "Caner Repents" [this is an anonymous Twitter account that criticizes Caner]

4. How coordinated is this? Under FBCJaxWatchdog and James White? 

5.  On your blog you state an LU high official told you that Caner "privately repented at Thomas Road Baptist Church," but that he was afraid to do so publicly because of the bloggers. Caner would like the name of this “high official.” If a name is not provided, then please publicly state that the statement was not made truthfully. 

6. Who was and is your immediate supervisor at LU?

7. You mentioned on your blog that you had help, who else at LU worked with you on these matters?

8. Who is TurretinFan? [an anonymous blogger who has criticized Caner]

9. Are you willing to turn over all correspondence between yourself, Mr. James White, FBCJaxWatchdog, Jason Smathers, and all other cyber stalkers

This is chilling. Caner shows his hand. His lawsuit was not about protecting his copyright. It was about bullying information out of Jon Autry regarding his critics at Liberty University, and various bloggers who like Autry have sought to expose Caner's deceptions.

Notice Ergun refers to his critics - including yours truly - as "cyber stalkers", or as Caner's lawyer said in oral arguments "cyber terrorists". Joshua Autry takes Caner and his lawyer to task in his brief on page 4, saying:

"This hyperbolic rhetoric [use of the word "cyber terrorist" to describe Jon Autry] defies all notions of professionalism, and—although I lack the lengthy career and prestige of opposing counsel—I have never heard an attorney speak in such terms about a party in open court. I say this in spite of the fact that I have represented people accused of murder and sexual assault, but I suppose prosecutors live under ethical guidelines that are unfamiliar to copyright litigators. This conduct was another attempt to distort reality and to keep the eyes of this Court off of Caner’s own wrongful conduct through misdirection and trickery."

And one last part that I'm particularly proud of: Joshua Autry referenced on page 2 of his brief a recent FBC Jax Watchdog article as proof that Caner has a double standard when it comes to free speech:

"In hypocrisy, Caner extols the virtues of free speech, but seeks to restrict speech directed at him....in line with this double standard, it appears that Caner currently uses the logo of HBO's Game of Thrones series without permission. [footnote identifies this Watchdog blog post]. Apparently, copyright protections - like free speech protections - only matter when Caner is the one benefiting from them."

So, Westside Baptist Church in Gainesville, you can take pride that your Youth Camp logo tweeted a few weeks ago by youth minister Asa Walker is used in federal court as an example of Ergun Caner's hypocrisy. I still have not heard back from Walker or from Phil Young as to why they chose Ergun Caner as their youth camp leader.

Lastly, any one who values free speech owes a big "Thank You" to Jonathan and Joshua Autry for putting up such a skilled defense to Caner's frivolous lawsuit. This was definitely a David vs. Goliath fight - and David won.

I'll end with this quote from Joshua Autry's brief, starting on page 17, with my emphases:

"Frivolous copyright actions in the fair use context threaten to chill criticism. That was precisely Caner’s goal. If successful, Caner would be able to remove works from the public eye (his and Jonathan’s). The Copyright Act seeks the opposite: to facilitates the creation of works and permits others through fair use to build off of and respond to those works. Caner needs deterrence as well. He is likely to file other lawsuits. He has already sued two people in this case alone. Further, he threatened Jonathan with filing a series of defamation lawsuits with the likely result of bankrupting the defendants.

This Court should reward Jonathan for not buckling under the pressure and for litigating a valid fair use defense. Like a civil rights victory, a fair use victory protects the speech rights of all.

In the world of the internet, courts rely on one another from across jurisdictions from coast-to-coast more than ever. In addition, religious media and bloggers have followed this case.

Fees send a signal to encourage free speech by the little guy in the face of litigation. If Jonathan rolled over and took a default judgment, not only would Caner have sought a fee award of his own that Jonathan could ill-afford to pay, but Caner may have used the litigation as support and motivation for lawsuits against other critics. Defense fees, however, will deter Caner and others like him from filing copyright actions to hide their words."

Jonathan and Joshua Autry, job well done. You have fought the good fight, and bloggers who seek to speak the truth about powerful religious men and their institutions, owe you a huge debt of gratitude.

And we now await the next round of lawsuits.