Why Doctors Shouldn't Abuse Copyright Law To Stop Patient Reviews

from the it's-bad-for-business dept

Two years ago, we wrote about a very sketchy operation, called Medical Justice, that was pushing a highly questionable plan to use the DMCA to stop patients from rating their doctors on online ratings sites. The plan works as follows: as part of your visit to the doctor, the doctor makes you sign a "waiver" provided by Medical Justice, which assigns the copyright on any review you might write to the doctor. Then, if you write a bad review, the doctor can claim copyright infringement, and use the DMCA takedown process to remove the bad review.

As we noted at the time, this is clearly not what copyright law was designed for.

We've also pointed out that it's not clear that this process is actually legal, and many reviews might not have any actual copyright anyway -- and in cases where there is copyright, a very strong fair use defense can be made. Still, Medical Justice has continued to convince doctors that this is a good idea, and two well-respected law professors have decided to begin educating doctors and patients about why they should be wary. Professors Eric Goldman and Jason Schultz have launched a new site called Doctored Reviews: Why Medical Justice's Anti-Review Contracts are a Poison Pill, hoping to convince doctors to stay away.

In the announcement, Goldman notes that if the website still fails to stop these kinds of practices, they may need to get more aggressive. Hopefully doctors realize that this is a bad idea. And, seriously, if your doctor made you sign one of these, wouldn't you go find a new doctor? If my doctor is trying to stifle bad reviews, then that makes me a lot more worried than any bad review. As Schultz notes in the press release:
"Doctors who use these gag-order contracts are essentially telling patients 'if you want medical care, you must sign away your right to free speech,' ... "More speech is the answer [to reviews]," he said, "not censorship and copyright abuse."


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    Liz, Apr 14th, 2011 @ 11:16pm

    The cure for a bad contract is a big, black marker pen. Just draw a big X over the bits you don't like!

     

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      Crosbie Fitch (profile), Apr 15th, 2011 @ 3:35am

      Re:

      And they say copyright doesn't abridge freedom of speech?

      Not only is copyright a derogation of liberty, but it also starts giving people the idea that liberty is alienable, that it can be signed away.

      It's not too surprising that people are seduced by the idea that they can not only prohibit others copying their works, but also gag them by contract. However, that's power corrupting for you. People do not naturally have, and so should not be given, such power over each other (however much people or corporations might fancy it).

      First abolish copyright (invidious legislation). Then remind people why liberty is inalienable and what that means. Maybe erect a gigantic statue for this purpose?

       

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    Anonymous Coward, Apr 14th, 2011 @ 11:43pm

    I'd hand the Doc a "waiver" that triples any settlement I might get for any failing on their part.

    Then I'd ask how HIPAA would affect the Doctor revealing they were my caregiver in legal filings.

    I'd then file a complaint with the State pointing out that by trying to force me to sign a document designed to protect the Doctor from a possible "bad review", calls into question the type of care they give if they feel they have to go this far to hide that information.

    Can I expect less care if I refuse to give up my free speech rights in this way?

    Then I would find a new Doctor to use while I sued the old one.

    Its the American way.

     

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    Capitalist Lion Tamer (profile), Apr 15th, 2011 @ 2:53am

    The thought process is:

    I'd rather be a successful doctor than a good doctor? How did the business of health become such a secretive society? If you suck at your job, people should know about it especially if you're entrusted with the health and well-being of others.

    "Why should people care how well we do our jobs? It's not like we're saving lives or something."

    Not only that, but what the fuck is up with medical records? Why does the medical field feel the need to charge you for the "inconvenience" of compiling what is most likely already compiled (assuming competence) and printing it out. Whatever minimal clerical overhead is needed can just be built into the charge of an office visit. Or maybe they could act like they give a shit and give you your records for free.

    Let's face it: if I wasn't seeing Dr. X, he wouldn't even have these precious medical records that he feels the need to charge $15 (or whatever) to put together for me. I shouldn't even need to ask for them. I honestly don't see why I couldn't opt in to an email list for updates on my medical records.

    ATTN: medical community. Those aren't your medical records. Don't make your patients (customers) jump through so many hoops to see their own records. /rant

    (This excludes the Mayo Clinic, who mailed my wife's medical records directly to her without her even having to ask. And it was thorough. Of course, as the pinnacle of the medical field, one would expect that sort of caring and professionalism. But that doesn't excuse everyone further down the ladder.)

     

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      Berenerd (profile), Apr 15th, 2011 @ 6:08am

      Re: The thought process is:

      I moved. My doctor has all my records in digital format in a holding house that, when I need a doctor to see them, charges me a mere $150 so any new doctor can see them but CAN'T PRINT THEM OUT. They get a one time viewing license. WTF!

       

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        That Anonymous Coward, Apr 16th, 2011 @ 3:39am

        Re: Re: The thought process is:

        Umm they are your medical records, this is confusing to me.
        I thought the point of HIPAA was to allow you to take control of your records.

        from hhs.gov

        What Rights Does The Privacy Rule Give Me Over My Health Information

        Health Insurers and Providers who are covered entities must comply with your right to:

        * Ask to see and get a copy of your health records

        I'd ask your old doctor to cough them up, or be ready to answer bunches of questions from HIPAA investigators.


        I think part of the reason they are trying to lock away records are to keep patients tied to them and to help pay for the costs with offloading their HIPAA responsibilities to an outside company.

        What could go wrong with relying on another company to protect your clients... *pulls a curtain* ignore that flaming crater that is Epislon.

         

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    Old Fool (profile), Apr 15th, 2011 @ 4:56am

    I love it!

    I think it's a great idea!

    Any doctor worth his salt would not ask you to sign any such thing, only rubbish doctors would need it.

    So, if your doc says 'sign this' you know immediately he's a cretin and you can walk right out.
    Saves a lot of time and effort finding a decent doctor ( they are surprisingly rare).

     

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    NullOp, Apr 15th, 2011 @ 5:18am

    Free Speech

    Very interesting! Doctors wanting you to sign away your rights to your opinion. I don't believe I would continue to see a doctor with such a policy. And, I would certainly put it in my review!

     

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    abc gum, Apr 15th, 2011 @ 5:44am

    Medical Justice - what a strange choice of company name.

    I you have said 'bad' things, do they remove your tongue? Or if you post 'bad' things do they break your fingers?

    With a name like that one might think they were involved in chemical castration or other such things.

     

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    Squirrel Brains (profile), Apr 15th, 2011 @ 6:14am

    Talk about starting the doctor patient relationship on a bad foot. If something happened at one of those doctors, I would certainly sue instead of just writing a bad review. There would be nothing except large wadges of cash that would placate my thirst for blood at that point.

    Plus, what is to stop someone from seeing the copyright assignment clause, walking out and then writing a bad review?

     

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    Anonymous Coward, Apr 15th, 2011 @ 11:29am

    Speaking of book-keeping...

    Someone needs to start a simple website where citizens can submit a doctor's name/location/etc that asked them to sign this form. Could make the search for a decent doctor much easier :)

     

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    Anonymous American, Apr 15th, 2011 @ 12:36pm

    Go ahead. Make my day.

    So if the doctor I choose ends up being a fuck-up, my only option left after having to sign this piece of tripe is to sue him and report him to the medical boards? Cool.

    Goddess help a doctor who would sue me under that provision; if they think the fact he's suing his patient wouldn't be the FIRST thing I trumpet loud, long and continually via any and all means available, he's a god-damned fool.

     

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    Bengie, Apr 15th, 2011 @ 4:26pm

    I wonder...

    Ok.. let them claim copyright, but then turn around and sue them for breach of doctor-patient confidentiality. If they want to be responsible for the review, then they should take ALL of the responsibility.

     

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