The Ethical And Legal Problems Of Having Patients Sign Over The Copyright On Doctor Reviews

from the it's-just-bad-all-around dept

About a year ago, we wrote about the really troubling concept pushed by a group called Medical Justice, which tries to "protect" doctors from negative reviews online by having them demand that patients hand over the copyright on any future reviews they might write. As we noted at the time, this was an attempt to completely abuse copyright law, way beyond its intended purpose -- though we wondered if it would actually work. Here's what we wrote a year ago:
Of course, it does bring up a few interesting points of discussion. First, is that the main purpose of using copyright here is so that the doctors can make use of the DMCA's notice-and-takedown safe harbor provisions, rather than be stymied by the similar (but not quite the same) CDA section 230 safe harbors for things like defamation. One of the key differences between the two is that Section 230 doesn't have a notice-and-takedown provision (though some have been trying to add one). So, really, all this is designed to do is figure out a way to shift the critical rules in question from the CDA to the DMCA. Sneaky!

Second, is that I wonder if this would be seen as actual copyright infringement anyway, or if reviewers could make a credible fair use defense. In some cases, the review itself might not even be covered by copyright (i.e., if there's no creative expression in it -- such as simple "he's awful!" reviews). In other cases where copyright might exist, the four factor fair use test might allow its use. While it could hurt the doctor's ability to make money as a doctor, it wouldn't be harming the market for the copyrighted content. Also, the use would be for purposes of "criticism." So, it's difficult to see how such content posted on a review site would actually violate anyone's copyright, even if the rights really were signed over.

But... (and this is where that sneaky first part comes into play), this might not matter. Even though you can get in trouble for filing a false DMCA notification (and even for failing to take fair use into account), most online services will quickly pull down content when receiving a DMCA takedown to preserve their safe harbor protections. So in almost all cases, the content will get pulled down, even if the content isn't really infringing. And, then it seems quite unlikely that any reviewer/patient will find it worth the trouble of filing a counternotice.
Since then, we hadn't heard too much about this practice, and had kind of hoped it had just gone away. No such luck. The NY Times recently had an article about how people who vent about bad service online might get them sued, and it mentions Medical Justice and their copyright trick. So, even though this has been going on for a bit, now that the NY Times has covered, it's starting to get much more widespread interest. Public Knowledge has done a pretty thorough critique on the legal aspect of this echoing many of the points I made last year:
Asserting copyright ownership over future physician ratings raises a number of basic copyright problems.  First, it is unclear whether a person can even assign copyright ownership in a work that has not yet been created, outside of a work-made-for-hire relationship. Second, it seems that many of the ratings that upset Medical Justice cannot be copyrighted at all.  A doctor using the Medical Justice agreement to censor an unfavorable review is really fighting against the idea in the review, not the expression that embodies it. This is a dichotomy long established in copyright law: copyright protects the expression of ideas, not the ideas themselves.  If the works at issue can't be protected under copyright law, then nobody owns the copyright to them--not the patient, and not any assignee to whom she purportedly transfers the copyright.  The ratings on many of the sites that Medical Justice dislikes (ratemds.com, vitals.com, drscore.com, doctorscorecard.com) include both space for written comments and numerical rating systems, while others (healthgrades.com, revolutionhealth.com) only collect numerical information, with no space for users to write any comments about the doctor. The numerical ratings pretty clearly have no original creativity element in them that would allow any person to claim copyright over them. Even the brief written comments likely include many examples that lack sufficient originality (ex. "Dr. Smith was mean.") to be protected under copyright law.

Even if the rating could be protected under copyright and the doctor somehow obtained legal ownership of the copyright, it seems fair use would still prevent doctors from demanding take-downs.  The ratings are used for criticism, and while they may affect the doctor's business, they do not hurt the market for the rating itself. And, as discussed above, many of these ratings are barely, if at all, creative enough to be protected by copyright.

Using these "Anti-Defamation" agreements to assert purported intellectual property rights not only opens the door to the DMCA notice-and-takedown regime, but removes the case entirely from the auspices of the CDA, where it belongs. Section 230 of the CDA protects sites from liability for user-generated content, except in instances of criminal liability or intellectual property infringement.  Medical Justice is clearly not a fan of the policy judgments embodied in Section 230 (here Medical Justice refers to the well-established statute as "an arcane nuance of cyberlaw").  Nevertheless, Congress has already decided that imposing liability on websites for the behavior of their users would only inhibit the development of online services.  These agreements twist intellectual property law to subvert congressional intent, which is particularly problematic when Congress has already established legal mechanisms to handle defamation claims.
And, it's actually even worse than that. PK also points out that, in theory, if this is allowed, then a Doctor could sue a patient for a bad review, claiming "copyright infringement" and demand statutory damages of between $750 and $150,000 for each bad review. Think about that for a second.

Separately, Jason Schultz points out that this whole scheme appears to violate basic medical ethics rules. He points to a particular rule:
Under no circumstances may physicians place their own financial interests above the welfare of their patients. The primary objective of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. For a physician to unnecessarily hospitalize a patient, prescribe a drug, or conduct diagnostic tests for the physician's financial benefit is unethical. If a conflict develops between the physician's financial interest and the physician's responsibilities to the patient, the conflict must be resolved to the patient's benefit.
How does that apply here? As Schultz explains:
Since the main concern of Medical Justice appears to be preventing harm to the physician's reputation (and thus financial interest), forcing patients to assign away their copyrights in exchange for medical care strikes me as close if not over this line. It certainly is not putting patients first. When a patient goes to see a doctor, they are often anxious, in pain, or worried and thus in a very psychologically vulnerable position, or what the law often calls a position of "duress" where they will often sign documents without giving them proper consideration. This hardly seems to me to be a fair time to demand they assign some unknown number of future copyrights to their doctor; instead it feels like a huge power grab by the physician.
When you create draconian copyright laws that include free speech removing notice-and-takedown provisions, don't be surprised when people abuse it for other purposes, well beyond the intent of copyright law.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Jun 9th, 2010 @ 12:03pm

    The use of the copyrighted material here is not "for criticism" of the copyrighted material, but of something else.

    If I were to take a movie review from a newspaper and post it in its entirety on my blog, that would surely be copyright infringement (even if I were the author of that review myself but contractually transferred the copyright).

    Now, if people at the site (or the patient's friends, etc.) were to take the ideas from the patient and rewrite them in their own words, it probably couldn't be covered by the copyright, but it seems like a detailed review (not just "he's terrible") could quite possibly be covered by copyright and that posting it to a review site wouldn't obviously be fair use.

     

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  2.  
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    Ryan, Jun 9th, 2010 @ 12:29pm

    Re:

    Yeah, couldn't you get around this by just writing, "my friend said the doctor sucked and that he's ugly as hell.", and then having him click submit?

     

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  3.  
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    Drak, Jun 9th, 2010 @ 12:31pm

    Hrm.

    Stories like this amaze me. When individuals or corporations use existing law in a corrupted form to do something that is ethically and morally WRONG they should expose themselves to community retribution sanctioned by the courts in the form of a "%&ckhead" indictment. Fines and punishment should be solely up to a pool of 12 selected at random from the local population with no upper limits on penalties. Doc and his lawyers sounds like a crook to me.

     

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  4.  
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    Anonymous Coward, Jun 9th, 2010 @ 1:03pm

     

    reply to this | link to this | view in thread ]

  5.  
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    Bengie, Jun 9th, 2010 @ 1:03pm

    Can't copyright facts

    "He messed up my boobs!"

    If he did, then it's a fact.

     

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  6.  
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    Anonymous Coward, Jun 9th, 2010 @ 1:04pm

    Copyright law is such a trivial matter in relation the activities of Medical Justice that I am surprised a lengthy column on this site devoted to mere and unrealistic conjecture even merits posting.

    More worthwhile avenues of exploration would include, among others:

    Is MJ engaging in the unauthorized practice of law? I daresay that in most jurisdictions the answer is likely "yes".

    Are these purported contracts really contracts as defined by state law?

    If they appear to meet the criteria associated with contracts (offer, acceptance, legally sufficient consideration), are they contracts of adhesion or contracts in contravention of public policy (the latter being an integral part of California law)?

    Are these Anti-SLAP instruments in "sheep's clothing"?

    The list goes on.......

     

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  7.  
    identicon
    Anonymous Coward, Jun 9th, 2010 @ 2:56pm

    Quaint

    Under no circumstances may physicians place their own financial interests above the welfare of their patients. The primary objective of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration.

    What a quaint notion. However, it has no legal force whatsoever and seems to be largely ignored these days.

     

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  8.  
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    The Devil's Coachman (profile), Jun 9th, 2010 @ 3:08pm

    This is how you spot the true quacks

    Any doctor who tries this crap on you is guaranteed to be a quack, and probably has a high likelihood of killing, maiming, or disfiguring you in the bargain. So, when the brain-dead idiot actually attempts to get you to agree to these ludicrously one-sided terms, run out the door, get on the internet, and let the world know what a vile, self-serving practitioner of substandard medicine they must be. Of course, the large orange beak and the webbed feet should also give you a clue.

     

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  9.  
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    senshikaze (profile), Jun 10th, 2010 @ 5:00am

    ...and this is why you read fine print.

    If i read that, I would walk out of that dr's office as fast as possible.

     

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  10.  
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    Charlie (profile), Jun 10th, 2010 @ 10:26am

    legal intimidation

    This is a form of legal intimidation, nothing more. Doctors are bluffing and have no serious recourse to pursue anoymous ratings sources online.

    Doctors have tried to shut down md rating sites and failed, now they are trying to bully individuals. Fortuntely they cannot shut down free speech on md rating sites like HealthcareReviews.com

    Doctors should embrace these sites and work with them instead, fighting the internet is a losing battle. At healthcarerevierws.com doctors are empowered with the ability to censor patient comments, too bad they are not embracing these services.

     

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  11.  
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    Mchase, Jul 3rd, 2010 @ 3:49pm

    Sickening. I have no other words.

     

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  12.  
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    Dentistincherryhill.com, Aug 6th, 2010 @ 10:24am

    Dentistincherryhill.com

    What an interesting article about copyrights. Thanks!

     

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  13.  
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    http://dentistincherryhillnj.com, Jan 1st, 2012 @ 1:34pm

    Doctor gone wild

    How a review be covered by copyright I dont think it can. this is so dumb how do people think of stuff like this. If a doctor do good work then he should get good reviews and not worry about bad reviews.

     

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  14.  
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    Jay, Apr 4th, 2012 @ 12:05pm

    Good Article

    I prefer to use websites where people can provide honest doctor reviews and the site doesn't run back to the doctor giving them all the information in exchange for money. That's why I like http://www.topusadoctors.com

     

    reply to this | link to this | view in thread ]


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