Court Not Impressed By Dentist Using Copyright To Try To Censor Online Reviews

from the copyright-as-censorship dept

We've written a couple of times about dentist Stacy Makhnevich, who used some forms from a company called Medical Justice, to make patients agree to assign the copyright on any online reviews they might later write over to the doctor or dentist. This struck many as of questionable legality and even more questionable ethically speaking. Medical Justice -- after receiving much criticism -- has completely changed its model (and name) and has urged doctors and dentists not to use its earlier forms. However, Makhnevich, actually sent one patient an invoice for $100/day, claimed $85,000 in damages, and asked for $25,000 in "general damages for fraud" (sending the patient a prepared legal complaint with that amount) after he posted negative reviews on Yelp and other sites. The patient, Robert Lee, filed a class action lawsuit in response. Makhnevich also sought to force Yelp to take down the review with a DMCA notice, but the company refused to do so (kudos to Yelp for not caving on a bogus DMCA notice).

The court has now rejected Makhnevich's attempt to dismiss the lawsuit, and appears to have some choice words for the dentist, directly calling some claims "ridiculous":
Defendants' argument that no actual controversy exists is specious. Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for gelling dental treatment. Further, under the totality of circumstances, the controversy is sufficiently "real" and " immediate." Defendants cannot pretend now that their notices to Lee were "just kidding," or that Lee lacked any reasonable apprehension of liability. A brief review of Defendants' conduct in response to Lee's exercise of basic rights shows how ridiculous their arguments are: (1) Defendants twice threatened Lee with suit, the second notification being from an attorney who did not specify a deadline by which suit would commence; (2) Defendants prepared and sent a draft version of the complaint they would file in a New York state court (Ex. D); and (3) Defendants sent two invoices, one which threatened referral to a collection agency. No reasonable person could view Defendants' constant barrage of threats as anything other than a real controversy.

Further, Defendants have not released Lee from liability for the amount threatened in the draft complaint, which is in excess of $110,000, or the amount charged by the two invoices. There is an objectively supported threat of future injury-which Defendants' conduct as created.
The case is not over, and there's a long way to go, but the dentist is not going to get out of this easily.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), Apr 23rd, 2013 @ 11:52am

    Secretary: Doctor Makhnevich you have a new patient. She's in the waiting room.
    Stacy Makhnevich: Good, what's her name?
    Secretary: Streisand.

    Ahem. I wonder if it's just me and Ms Streisand but I think trying to silence criticism is a rather effective way to drive people away of your clinic.

     

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  2. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 12:23pm

    Mike,

    I thought you hated Judge Crotty since he didn't share your same silly views on the domain name seizures.

     

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  3.  
    icon
    Atkray (profile), Apr 23rd, 2013 @ 12:29pm

    Re:

    "I thought you"

    If you don't have a citation for this then you thought wrong.

    This is the same mistake my child keeps making trying to think what someone else thinks. He can't do it and neither can you.

     

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  4.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 12:30pm

    Re:

    This may be news to someone in your position, but other humans are capable of having views that aren't black and white.

     

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  5.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 12:34pm

    nice to see 'Yelp' not cave. so many of the largest of companies seem to do so, rather than fight back, particularly if there are members of the public or just members involved. hopefully at the end of this, others will see that a lot of law suits are unjustified and fighting back over what is your right should be a definite consideration

     

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  6. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Apr 23rd, 2013 @ 12:37pm

    Not copyright. Rich guy mis-using it.

    I predict, from the long history of Mike blaming copyright when it's The Rich, that the next item will be similar.

    And an inherent problem is that there's really no penalty for mis-using copyright. If Mike got off his "needz more dataz" non-stance then maybe he could at least advocatve some penalties be applied for such mis-use. -- But that'd be Mike going against his own 1% class. Not going to happen.

     

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  7.  
    icon
    Zakida Paul (profile), Apr 23rd, 2013 @ 12:38pm

    Re: Not copyright. Rich guy mis-using it.

    More rich envy. What a bellend.

     

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  8.  
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    Chosen Reject (profile), Apr 23rd, 2013 @ 12:39pm

    Well of course the dentist wasn't "just kidding". It was a pun.

    No, no...not a pun. It was a palindrome.

     

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  9.  
    identicon
    S. T. Stone, Apr 23rd, 2013 @ 12:41pm

    Re: Not copyright. Rich guy mis-using it.

    maybe he could at least advocatve some penalties be applied for such mis-use

    We already have penalties on the books. Why not use those?

    Oh. Right. Those in power get to write the rules and weasel their way out of those penalties. Imagine that.

     

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  10.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 12:42pm

    Re: Not copyright. Rich guy mis-using it.

    Do you even read the site you are so obsessed with?

     

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  11.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 12:52pm

    "This lawsuit about a toothache and a dentist's attempt to insulate herself from criticism by patients has tumed into a headache. After appealing to his dentist for pain relief, Plaintiff Robert Allen Lee, ironically, is appealing to the court for relief from his dentist."

    Does this judge secretly want to become a writer?

    "Defendants' hardly defensible practices"

    Uh oh. When the judge is using that sort of language in your motion to dismiss, you know this case isn't going to go well.

     

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  12.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:06pm

    assign the future copyright of any review i post online to my service provider. Yes, that's what copuright was made for! Why don;t you just stop being coy and write right in the service contract: all online reviews must be positive and pre-approved by the service provider.
    Man, are people ever fked!

     

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  13.  
    icon
    Gwiz (profile), Apr 23rd, 2013 @ 1:08pm

    Re: Re: Not copyright. Rich guy mis-using it.

    Obviously not.

    Pretty apparent since he labels the female dentist as "Rich guy" right there in his comment header.

     

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  14.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:13pm

    Re:

    IANAL. Probably still not legally enforceable. Active toothache creates considerable duress. In most cases, this duress would render the contract not valid.

     

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  15. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:17pm

    Re: Re:

    Oh, I understand that. Mike's the black and white thinker. As I recall, he's stated that Judge Crotty hates the First Amendment. Now he's praising the judge for his stand against evil censorship! And to think this judge is over 70 years old. I'm surprised Mike isn't pulling out his usual ageist nonsense.

     

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  16. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:20pm

    Re: Re:

     

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  17. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:22pm

    Re: Re:

    You're not a lawyer? Sounds to me like you went to law school online at the University of Angry Dipshits--just like Mike!

     

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  18.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:27pm

    Re: Re:

    Duress or not, this is the sort of thing that should never be in a contract. People should be free to write reviews about products and service they purchase.

    I'd be more willing to accept the provision if it were part of a contract that was actually negotiated by the parties, instead of one that is imposed by one side.

     

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  19.  
    icon
    Gwiz (profile), Apr 23rd, 2013 @ 1:27pm

    Re: Re: Re:

    LMAO.

    You just called someone else an angry dipshit in an angry dipshit tone of voice. WTG!

     

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  20.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:52pm

    Re:

    You..."thought"?
    You have working brain cells, boy?

     

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

  21.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:53pm

    Re: Re: Re:

    "I'm surprised Mike isn't pulling out his usual ageist nonsense."
    Present an example of "ageist nonsnese", boy...if you dare.

     

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  22.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 1:55pm

    Re: Not copyright. Rich guy mis-using it.

    Like all the other rich guys/companies misusing it, boy?
    When it becomes the typical instead of the atypical (as it has) your ramblings for pay from corporations become pathetic.

     

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  23.  
    identicon
    jackn, Apr 23rd, 2013 @ 2:20pm

    Re: Re:

    Plus, what is the consideration. It seems like they are trying to make this a work-for-hire assignment, but the artist (in this case the patient), should get consideration for the work (in this case the review).

     

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  24.  
    identicon
    jackn, Apr 23rd, 2013 @ 2:22pm

    Re: Not copyright. Rich guy mis-using it.

    Why must you constantly flatter this site and Mike with you unending attention.

    Are you a harrasser and possibly a stalker? an online bully if you will?

     

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  25.  
    identicon
    out_of_the_blue, Apr 23rd, 2013 @ 2:24pm

    Re: Re: Not copyright. Rich guy mis-using it.

    I just love Mike and all this site does to expose injustice on the common man.

     

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  26.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 2:27pm

    Re: Re: Re:

    Alot of old world views that dont understand technology can be attributed to older people who don't have reason to interact with technology who sit in places of power.

    On the other hand, this doesn't mean all their views are bad.

    People can agree with some views while disagreeing with others.

     

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  27.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 2:45pm

    Hmmm. Can a copyright be assigned on a work which doesn't yet exist?

     

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  28.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 2:50pm

    Re: Re: Re:

    OK, so where is your citation?

     

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  29.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 2:51pm

    Re: Re:

    They're clearly not functioning correctly.

     

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  30.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 5:16pm

    Response to: Anonymous Coward on Apr 23rd, 2013 @ 2:45pm

    Yes, it can. It creates in the assignee an equitable title to the copyright which is perfected upon the work being completed.

     

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  31.  
    identicon
    Anonymous, Apr 23rd, 2013 @ 6:22pm

    Don't dentists have more important things to do, like spread diseases and not sterilize their instruments?

     

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  32.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 8:23pm

    Re: Re: Re:

    That's a citation that Mike thinks the judge got it wrong in that particular case, but says nothing about how he feels about the judge, himself. Care to try, again?

     

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

  33.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 8:54pm

    Re: Re: Re:

    Kindergarten drop out is sounding kindergarteny

     

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

  34.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 11:10pm

    High court low court

    Thing is, as long as copyright exists the rich will abuse it while the anti abuse laws will be used to flog the poor if used at all.

    Abolishing copyright is the only way to abolish abuse of copyright

     

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  35.  
    identicon
    Anonymous Coward, Apr 23rd, 2013 @ 11:12pm

    Re: High court low court

    It should be noted that I'm not in favor of abolishing copyright, mearly pointing out how out of the blue's viewpoints conflict with each other as is so often the case

     

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

  36.  
    icon
    G Thompson (profile), Apr 24th, 2013 @ 1:03am

    Re: Re: Re: Re:

    no.. this is a citation

    Masnick, M. (2011, August 5). Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship | Techdirt. Retrieved April 24, 2013, from http://www.techdirt.com/articles/20110805/10212515405/judge-says-making-it-harder-to-exercise-free-s peech-does-not-create-substantial-hardship.shtml

    or

    Masnick, M., 2011. Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship | Techdirt. Available at: http://www.techdirt.com/articles/20110805/10212515405/judge-says-making-it-harder-to-exercise-free-s peech-does-not-create-substantial-hardship.shtml [Accessed April 24, 2013].

    What you wrote was a hyperbolic link

     

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  37.  
    icon
    G Thompson (profile), Apr 24th, 2013 @ 1:04am

    Re: Re: Re: Re: Re:

    oops..

    *What the 'original' AC wrote was a hyperbolic link (full of hyperbole and vitriol)

     

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  38.  
    icon
    G Thompson (profile), Apr 24th, 2013 @ 1:09am

    Re: Re: Re:

    Wow...

    Libertas et natale solum

     

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  39.  
    identicon
    Anonymous Coward, Apr 24th, 2013 @ 6:04am

    Re: Re: Re: Re:

    "old culture" is the real problem, not old people.

     

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

  40.  
    identicon
    Anonymous Coward, Apr 24th, 2013 @ 6:20am

    Re: Re: Re: Re: Re:

    I doubt that anyone using this site uses a hand crank telephone or even knows what one was but Ms. Helen, lived down the street, was very familiar with one before she died last month at 106.

    Age and technology do go together.

     

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

  41.  
    identicon
    DeP, Apr 24th, 2013 @ 11:29am

    Re: Not copyright. Rich guy mis-using it.

    Is this guy actually speaking English? Looks like some newly invented words here.

     

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


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