Johnson v. New Destiny Christian Center Church, Inc. et al

Filing 83

ORDER granting 75 Motion for summary judgment. The Clerk is DIRECTED to enter judgment in favor of Defendants and against Plaintiff; terminate any other pending motions and deadlines; and close the file. Signed by Judge Roy B. Dalton, Jr. on 3/4/2019. (PKK)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHIRLEY JN JOHNSON,
Plaintiff,
v.

Case No. 6:17-cv-710-Orl-37DCI

NEW DESTINY CHRISTIAN CENTER
CHURCH, INC.; and PAULA
MICHELLE WHITE,
Defendants.
_____________________________________
ORDER
Before the Court is Defendants’ motion for summary judgment (Doc. 75
(“Motion”)), Plaintiff’s response (Doc. 77), and Defendants’ reply (Doc. 78). For the
following reasons, the Court grants the Motion.
I.

BACKGROUND

This action centers on a series of Takedown Notifications in 2012 and 2013 directed
to videos on Plaintiff’s YouTube channel and whether Defendants wrongfully sought to
remove Plaintiff’s videos for containing their copyrighted material.1 (Doc. 31, ¶¶ 12–29.)
Plaintiff operates a website and YouTube channel where she posts videos that include
self-recorded portions of Defendant Paula Michelle White’s sermons. (Doc. 66-1, pp.

The Court assumes the reader’s familiarity with the 2014 Copyright Action, Paula
White Ministries v. Shirley Jn Johnson, Case No. 6:14-cv-497-Orl-31DAB, and the 2015
Malicious Prosecution Action, Johnson v. New Destiny Christian Ctr. Church, Inc., Case No.
6:15-cv-1698-Orl-37GJK.
1

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10:14–11:19, 12:23–13:11.) At all relevant times, these sermons were distributed online and
on television by the entity Paula White Ministries (“PWM”). 2 (Doc. 75-1, ¶¶ 2–4.)
After PWM discovered Plaintiff’s YouTube channel and videos containing PWM’s
intellectual property, PWM set out to determine whether the use was infringing. (Id. ¶¶
10–19.) To that end, PWM’s then-General Manager, Bradley Knight, viewed videos
posted by Plaintiff and evaluated whether they constituted “fair use.” (Id. ¶¶ 14–19.) By
January 2012, Mr. Knight “formed a good faith belief that her uses were not fair uses, as
she violated [three] tenants of fair use.” (Id. ¶ 19.) Mr. Knight then consulted with one of
PWM’s attorneys to determine what next steps could be taken, as PWM had not obtained
copyright registrations on the videos at that time. (Id. ¶ 23.) Mr. Knight learned that PWM
didn’t need to obtain a copyright registration to send a Takedown Notification to
YouTube under the Digital Millennium Copyright Act (“DMCA”), so he directed PWM
employee Antonio Taylor to submit a series of Takedown Notices on behalf of PWM
referencing Plaintiff’s videos to YouTube. (Id. ¶¶ 24–25.) Mr. Taylor submitted the
requests on January 30, 2012. (Id. at 8–15.) YouTube responded by asking PWM for more
information before complying with the Takedown Notifications. (Id. at 16–21.) PWM
responded by sending YouTube a cease and desist letter on February 2; YouTube then
removed the content on February 6, 2012. (Id. at 22–31.)

The Court has previously detailed Defendants’ corporate history: Defendant
New Destiny Christian Center, Inc. (“NDCC”) now owns PWM’s trade name; Defendant
Paula Michelle White is currently Senior Pastor-President of NDCC. Malicious
Prosecution Action, Doc. 213, p. 5. For sake of clarity, this Order attributes PWM as the
relevant actor for the Takedown Notifications and Copyright Action discussed herein.
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YouTube notified Plaintiff on February 6, 2012 that her channel was terminated.
(Doc. 75-4.) She responded by writing YouTube a letter asserting that her videos “were
for nonprofit educational purposes . . . in accordance with . . . the doctrine of fair use.”
(Id. at 1.) She asked that her channel and then-thirty-seven videos be restored. (Id.) The
restoration process took several months, but her videos were put back up in May 2012.
(Doc. 66-1, p. 145:9–23.) Later, in June 2012, PWM registered the copyright for “Paula
White Ministries Sermons 2010-2011.” (Doc. 75-1, ¶ 5.)
After this initial series of Takedown Notifications, Mr. Knight started consulting
with attorney Thomas Sadaka at Nejame Law about Plaintiff’s use of PWM’s intellectual
property. (Id. ¶¶ 28–29.) Mr. Knight provided Mr. Sadaka with materials to determine if
there was a reasonable basis for a copyright infringement claim against Plaintiff. (Id.)
Nothing happened right away, but sometime in 2013, Mr. Sadaka sent a Takedown
Notification to YouTube for one of Plaintiff’s videos on behalf of PWM. (Id. at 33–34.)
Plaintiff submitted a Counter-Notification, so YouTube told Mr. Sadaka he had “ten days
within which to notify [YouTube] that [he] had filed an action seeking a court order to
restrain the counter-notifier’s allegedly infringing activity.” (Id. at 34.) As Mr. Sadaka did
not act within those ten days, YouTube told him they could no longer provide assistance
and he would need to sort things out directly with Plaintiff. (Id.)
Then, on March 27, 2014, Mr. Sadaka, on behalf of PWM, initiated suit against
Plaintiff for copyright infringement. See Paula White Ministries v. Shirley Jn Johnson, Case
No. 6:14-cv-497-Orl-31DAB, Doc. 1 (“Copyright Action”). Following this, Mr. Sadaka
sent YouTube a copy of the Copyright Action’s Complaint and requested it take down
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Plaintiff’s infringing videos. (Doc. 75-1, p. 32.) YouTube took no action, so Mr. Taylor
followed up by e-mailing YouTube on April 29, 2014 to again request it take down
Plaintiff’s videos, totaling seventy-six at the time. (Id. ¶¶ 33–34; id. at 43–45.) YouTube
disabled Plaintiff’s videos on May 2, 2014 (Doc. 31-8), and Plaintiff sent a CounterNotification (Doc. 31-9). Yet because of the lawsuit, YouTube sent Plaintiff an e-mail on
June 4, 2014 that it could not restore Plaintiff’s videos. (Doc. 31-10.)
Later that month, Mr. Knight noticed another video on Plaintiff’s channel that he
believed to be infringing PWM’s copyrighted material, so sent YouTube another
Takedown Notification. (Doc. 75-1, ¶ 35; id. at 46.) YouTube responded by asking followup questions regarding the fair use factors (id. at 47); Mr. Knight replied by maintaining
that the video was not protected by fair use (id. at 48–49). YouTube then removed the
content on July 1, 2014. (Id. at 49.) Because this was “the third notification [YouTube had]
received alleging copyright infringement in one of [Plaintiff’s] postings,” YouTube
terminated Plaintiff’s account. (Doc. 31-11.)
Meanwhile, after the Copyright Action progressed for a while, PWM decided to
voluntarily dismiss its claims against Plaintiff on January 13, 2015. Copyright Action,
Doc. 37. After the Copyright Action concluded, Plaintiff notified YouTube, and it restored
her channel and videos on February 10, 2015. (Doc. 66-1, pp. 109:18–110:23.) That same
month, Mr. Knight reviewed another video that Plaintiff had recently posted. (Doc. 75-1,
¶ 37.) He asked for guidance on whether the video was infringing from another Nejame
Law attorney, Vanessa Braeley. (Id. ¶ 38.) After she reviewed the video, she submitted a
Takedown Notification to YouTube on behalf of PWM on March 6, 2015. (Id. ¶ 39.)
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YouTube took down the video, Plaintiff sent a Counter-Notification on April 22, 2015,
and the video was restored. (Doc. 31-14.)
A final Takedown Notification was sent around May 20, 2015 by Mr. Knight to
YouTube concerning one video. (Doc. 75-1, ¶ 40.) Prior to sending the request, Mr. Knight
had reviewed the video, considered the fair use factors, and formed a good faith belief
that Plaintiff’s use of PWM’s material was not fair use. (Id. ¶ 41.) Plaintiff sent a CounterNotification on May 22, 2015 (Doc. 31-15), and YouTube restored the video on June 5,
2015 (Doc. 75-6).
After all of this, Plaintiff, proceeding pro se, initiated suit against Defendants and
two other entities for malicious prosecution based on the Copyright Action on October 8,
2015. See Malicious Prosecution Action, Doc. 1. In the ad damnum clause of her Third
Amended Complaint, Plaintiff “request[ed] economic, non-economic, and nominal
damages pursuant to 17 U.S.C. § 512(f).” Id. Doc. 131, p. 8. She also alleged a violation of
“her rights under the First Amendment to the U.S. Constitution by filing the Copyright
Action and making numerous false copyright infringement complaints to YouTube,
which caused the removal of videos from her channel.” Id. On March 23, 2017, the Court
dismissed Plaintiff’s purported federal claims under § 512(f) and the First Amendment
without prejudice but denied her leave to file a fourth amended complaint due to the late
stage of the proceedings and the Court’s belief that she had just intended to assert a claim
for malicious prosecution. Id. at 8–11, 23.
So Plaintiff filed this case, again pro se, bringing claims for material
misrepresentation under 17 U.S.C. § 512(f) and abuse of process. (Doc. 1.) After the Court
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whittled down Plaintiff’s bases for these claims (see Doc. 30), this case has proceeded on
Plaintiff’s § 512(f) misrepresentation claim as to the Takedown Notifications and the
abuse of process claim based on Plaintiff’s allegation that Defendants continued the
Copyright Action to procure the deletion of Plaintiff’s YouTube channel. (Doc. 31.) Now,
Defendants have moved for summary judgment. (Doc. 75.) Briefing complete (Docs. 77,
78), the matter is ripe.
II.

LEGAL STANDARD

Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As to
issues for which the movant would bear the burden of proof at trial, the “movant must
affirmatively show the absence of a genuine issue of material fact and support its motion
with credible evidence demonstrating that no reasonable jury could find for the nonmoving party on all of the essential elements of its case.” Landolfi v. City of Melbourne, Fla.,
515 F. App’x 832, 834 (11th Cir. 2012) (citing Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993)). As to issues for which the non-movant would bear the burden of proof
at trial, the movant has two options: (1) the movant may simply point out an absence of
evidence to support the non-moving party’s case; or (2) the movant may provide
“affirmative evidence demonstrating that the nonmoving party will be unable to prove
its case at trial.” U.S. v. Four Parcels of Real Prop. in Green & Tuscaloosa Ctys., 941 F.2d 1428,
1438 (11th Cir. 1991) (citing Celotex Corp., 477 U.S. at 325).
“The burden then shifts to the non-moving party, who must go beyond the
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pleadings and present affirmative evidence to show that a genuine issue of material fact
exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citing Fitzpatrick, 2 F.3d at 1115–
17). “A factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248) (1986)).
The Court must view the evidence and all reasonable inferences drawn from the
evidence in the light most favorable to the non-movant. Battle v. Bd. of Regents,
468 F.3d 755, 759 (11th Cir. 2006). However, “[a] court need not permit a case to go to a
jury . . . when the inferences that are drawn from the evidence, and upon which the nonmovant relies, are ‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743
(11th Cir. 1996).
III.

DISCUSSION

As it stands, Plaintiff’s claims rest on the same underlying issues: the legitimacy
of the Takedown Notifications PWM sent to YouTube between 2012 and 2015. Plaintiff
maintains that these notices were “false” from the start based on her contention that PWM
and its attorneys did not have a subjective good faith belief when they contacted YouTube
to remove Plaintiff’s videos. (Doc. 77, p. 8.) Yet Defendants move for summary judgment
based on the record evidence that the Takedown Notifications and Copyright Action
were founded on Defendants’ subjective good faith belief that Plaintiff’s videos infringed
their copyrighted material. (Doc. 75, pp. 15–22.) With this, Defendants claim that both
Plaintiff’s 512(f) and abuse of process claims fail. (Id.) In turn, Plaintiff argues that
Defendants’ one-sided evidence should be rejected and summary judgment granted in
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her favor. (See Doc. 77.) On review, the Court agrees with Defendants.
The DMCA sets forth “a detailed process allowing a copyright owner who
observes infringing content on a website like YouTube to have the content taken down.”
Big Cat Rescue Corp. v. Big Cat Rescue Entm’t Grp., No. 8:11-cv-2014-JDW-TBM,
2013 WL 12158980, at *10 (M.D. Fla. Jan. 15, 2013). Section 512(c)(3)(A) outlines the
process for submitting a Takedown Notification:
(A) To be effective under this subsection, a notification of claimed
infringement must be a written communication provided to the
designated agent of a service provider that includes substantially the
following:
(i) A physical or electronic signature of a person authorized to act
on behalf of the owner of an exclusive right that is allegedly
infringed.
(ii) Identification of the copyrighted work claimed to have been
infringed, or, if multiple copyrighted works at a single online
site are covered by a single notification, a representative list of
such works at that site.
(iii) Identification of the material that is claimed to be infringing or
to be the subject of infringing activity and that is to be removed
or access to which is to be disabled, and information reasonably
sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service
provider to contact the complaining party, such as an address,
telephone number, and, if available, an electronic mail address
at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief
that use of the material in the manner complained of is not
authorized by the copyright owner, its agent, or the law.
(vi) A statement that the information in the notification is accurate,
and under penalty of perjury, that the complaining party is
authorized to act on behalf of the owner of an exclusive right
that is allegedly infringed.
17 U.S.C. § 512(c)(3)(A)(i)–(vi). 3

3

Contrary to Plaintiff’s argument, the DMCA does not limit the ability to submit
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Abusing this takedown process may subject an individual to liability under §
512(f):
Any person who knowingly materially misrepresents under
this section – (1) that material or activity is infringing; or (2)
that material or activity was removed or disabled by mistake
or misidentification, shall be liable for any damages . . . as the
result of the service provider relying upon such
misrepresentation in removing or disabling access to the
material or activity claimed to be infringing, or in replacing
the removed material or ceasing to disable access to it.
17 U.S.C. § 512(f). Yet courts have found that “it is a complete defense to a claim under §
512(f) that the party issuing a takedown notice had a subjective good faith belief that the
use in question was ‘not authorized.’” Stern v. Lavender, 319 F. Supp. 3d 650, 683 (S.D.N.Y.
2018) (citing Hosseinzadeh v. Klein, 276 F. Supp. 3d 34, 44 (S.D.N.Y. 2017); then citing Lenz
v. Universal Music Corp., 815 F. 3d 1145, 1153 (9th Cir. 2016)). In Lenz, the U.S. Court of
Appeals for the Ninth Circuit held that a copyright holder “must consider fair use before
sending a takedown notification,” and if the copyright holder “forms a subjective good
faith belief the allegedly infringing material does not constitute fair use, [the Court is] in
no position to dispute the copyright holder’s belief even if [it] would have reached the
opposite conclusion.” 815 F.3d at 1154. But summary judgment should be denied, of
course, if the copyright holder “pays lip service to the consideration of fair use by
claiming it formed a good faith belief when there is evidence to the contrary.” Id.

§ 512 Takedown Notifications to registered copyright owners alone. (Doc. 77, p. 3.)
Rather, registration is a precondition to filing a copyright infringement lawsuit. 17 U.S.C.
§ 411(a); Schenck v. Orosz, No. 3:13-CV-294, 2013 WL 5963557, at *7 (M.D. Tenn. Nov. 7,
2013) (citing Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010)). So registration isn’t
an issue here.
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(citations omitted).
The evidence before the Court uniformly supports Defendant’s good faith defense.
And critically here, Plaintiff has not supplied a factual basis on which to find the opposite:
that Defendants, in pursuing Takedown Notifications, made a knowing material
misrepresentation. As it stands, Defendants’ affidavits supply that before PWM sent
YouTube takedown requests, Plaintiff’s videos were analyzed to determine whether they
constituted fair use. (Docs. 75-1, ¶¶ 14–41 (Mr. Knight’s affidavit); 75-3, ¶¶ 5–14 (Mr.
Sadaka’s affidavit); 75-5, ¶¶ 5–11 (Ms. Braeley’s affidavit).) Each time, PWM concluded
that Plaintiff’s videos did not constitute fair use and were infringing copyrighted
material. (Doc. 75-1, ¶¶ 19–42.) PWM’s correspondence with YouTube confirms this (Id.
at 8–31, 43–49), as does the 2014 Copyright Action (Doc. 75-3, ¶¶ 15–19).
Plaintiff retorts by offering her version of events, which the Court finds are based
exclusively on speculation. (See Doc. 66-1, pp. 97:7–102:25, 113:23–118:19, 139:22–144:19
(Plaintiff’s deposition).) Although Plaintiff claims certain inaccuracies in PWM’s
submissions to YouTube (Doc. 77, pp. 8–15), she “has not come forth with competent
summary judgment evidence that calls into question [PWM’s] good faith belief.”
Handshoe v. Perret, No. 1:15CV382-HSO-JCG, 2018 WL 4374188, at *8–9 (S.D. Miss. Sept.
13, 2018). “Even if [PWM] acted unreasonably and made an unknowing mistake in [its]
submission of the online form to YouTube, [Plaintiff] has not presented evidence that
tends to demonstrate some knowing misrepresentation on [PWM’s] part.” Id.
Thus, the Court finds that PWM’s sending of Takedown Notifications “did not
evince bad faith or entail the making of a material misrepresentation.” Stern, 319 F. Supp.
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3d at 684; see also UMG Recordings, Inc. v. Augusto, 558 F. Supp. 2d 1055, 1065 (C.D. Cal.
2008). Defendants’ Motion is therefore granted as to Plaintiff’s § 512(f) claim.
The same goes for Plaintiff’s abuse of process claim. For this claim, Plaintiff alleges
that Defendants continued the Copyright Action to obtain “the permanent termination”
of Plaintiff’s YouTube channel and to “intimidate, punish, shame, harass and attempt to
extort millions of dollars from Plaintiff.” (Doc. 31, ¶¶ 56, 58.) Putting aside Defendants’
argument that this claim is preempted (Doc. 75, pp. 19–22), the Court finds that the
undisputed record evidence belies Plaintiff’s assertions.
Abuse of process claims have three elements: (1) that the defendant made an
illegal, improper, or perverted use of process; (2) the defendant had ulterior motives or
purposes in exercising such process; and (3) the plaintiff suffered damage as a result. S &
I Invs. v. Payless Flea Mkt. Inc., 36 So. 3d 909, 917 (Fla. 4th DCA 2010). “The plaintiff must
prove that the process was used for an immediate purpose other than that for which it
was designed.” Id. (citing Biondo v. Powers, 805 So. 2d 67, 69 (Fla. 4th DCA 2002)). “Where
the process was used to accomplish the result for which it was intended, ‘regardless of an
incidental or concurrent motive of spite or ulterior purpose,’ there is no abuse of process.” Id.
(quoting Biondo, 805 So. 2d at 69).
As the record reflects, PWM held a subjective good faith belief that Plaintiff’s
videos were infringing its copyrighted materials. (Docs. 75-1, ¶¶ 14–41 (Mr. Knight); 753, ¶¶ 5–14 (Mr. Sadaka); 75-5, ¶¶ 5–11 (Ms. Braeley).) This belief led PWM to submit
Takedown Notifications to YouTube concerning Plaintiff’s videos; and when those
proved futile, PWM initiated the Copyright Action. (Doc. 75-3, ¶¶ 5–19.) The “goal” of
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the Copyright Action “was to stop [Plaintiff] from infringing [PWM’s] copyrights.” (Id. ¶
19.) Yet as Mr. Sadaka’s Affidavit states, “After several months of litigation, it became
apparent [Plaintiff] was not interested in resolving the case. . . . As such, expensive
protractive litigation was anticipated.” (Id. ¶ 22.) Based on these high anticipated costs
with little to no expected return, “an economic reason was made to discontinue the
litigation.” (Id. ¶ 23.)
Against this backdrop, the Court finds no evidence to support Plaintiff’s belief that
Defendants’ continuation of the Copyright Action constituted abuse of process. Rather,
Defendants’ actions were founded in a subjective good faith belief that Plaintiff’s videos
were infringing, which led them to both submit Takedown Notifications and litigate
against Plaintiff. Thus, Plaintiff’s abuse of process claim cannot survive summary
judgment, and Defendants’ Motion is due to be granted.
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendants’ Motion for Final Summary Judgment (Doc. 75) is GRANTED.

2.

The Clerk is DIRECTED to:
a.

Enter judgment in favor of Defendants and against Plaintiff;

b.

Terminate any other pending motions and deadlines; and

c.

Close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on March 4, 2019.

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Copies to:
Counsel of Record
Pro se party

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