We've talked about Medical Justice
a few times. This is the highly questionable outfit that gives doctors and dentists forms that these medical professionals then require patients to sign in order to get treated. The forms require the patients to pre-emptively hand over
the copyright on any future reviews they might write about that medical professional. The idea is that if the doctor or dentist doesn't like the review, they can then just use the DMCA to take it down, claiming that the review infringes on their copyright. Yes, this is incredibly sleazy. This clearly has nothing to do with copyright, but rather it's a use of copyright law to try to censor criticism. There are both ethical and legal problems
with this... and the legal problems are about to be discussed in court.
Public Citizen has filed a class action lawsuit against a New York dentist, Stacy Makhnevich
, who not only used the Medical Justice forms, but then sent one of her patients invoices
, supposedly billing him $100 per day
for having posted comments about her online. As Paul Alan Levy explains:
Our individual client, Robert Lee, had a bad experience, not with Makhnevich’s dental work, but with her billing and her failure to submit the documents he needed to get reimbursed by insurance. After his repeated efforts to get her office to do what they were supposed to do, he posted complaints on Yelp and on DoctorBase. Makhnevich threatened to sue him over the posts, and sent DMCA takedowns, but no doubt to her surprise, not only did the patient not remove his comments, but both Yelp and DoctorBase defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal. Undeterred, Makhnevich sent Lee invoices purporting to bill him $100 per day for the continued copyright infringement. Makhnevich also hired a lawyer who sent additional threats of litigation, but rather than continue to wait to be sued, Lee has now filed suit for a judgment declaring the agreement void, an injunction preventing Makhnevich from imposing the agreement on other patients, and a notice to all Makhnevich patients informing them that they are no longer restrained by the agreement.
A few interesting things come out in the lawsuit. First, the fact that both Yelp and DoctorBase defied the DMCA takedowns. Both companies deserve kudos for that. Standing up to bogus DMCA takedowns is pretty rare these days, because the risk of getting roped into a costly lawsuit is just too high. In this case, the fact that there had been so much news about Medical Justice and it's questionable concept, and both Yelp and DoctorBase were aware of this earlier, certainly helped. Still, standing up to such threats deserves praise.
Second, the lawsuit notes that not only is this copyright abuse, but the DMCA takedown notices appear to violate HIPAA -- the federal Health Insurance Portability and Accountability Act -- which is supposed to guarantee privacy for patient info.
In September, 2011, on the letterhead of Aster Dental, a member of Dr.
Makhnevich’s staff sent takedown letters under the Digital Millennium Copyright Act (“DMCA”),
17 U.S.C. § 512(c)(3), to Yelp and to DoctorBase, asserting that Dr. Makhnevich owned the
copyright in Lee’s Commentary pursuant to the Agreement. Defendants warned Yelp and
DoctorBase that, if they did not remove the posts immediately, they would lose the immunity that
the DMCA otherwise provides Internet Service Providers against monetary liability for copyright
infringement. In violation of HIPAA, these takedown notices disclosed plaintiff’s height, weight
and birth date, as well as his picture and his home address
The lawsuit also makes the claim that these comments, even if the copyright on them has been assigned, would still be protected as fair use. But, more importantly, it argues that these agreements in the first place constitute "copyright misuse" noting that the agreements:
constitute unclean hands and, with respect to such purported acquisition and
assertion, constitute copyright misuse in light of the means by which defendants
purportedly acquire the copyrights and because the purpose of such acquisition and
assertion of copyright is to suppress truthful commentary concerning defendants and
matters of public concern.
No matter what, this should be an interesting lawsuit to follow. As Levy explains, beyond the legal arguments, there is an important public policy aspect to this lawsuit:
The purpose of copyright law is to encourage creative expression by providing a temporary monopoly (sadly, less and less temporary) that enables those whose expression is marketable to reap financial rewards for their work. At the same time, copyright law avoids giving any monopoly on facts or ideas. Agreements like the one at stake in the Makhnevich case turn copyright law on its head by taking advantage of the fact that, as a practical matter, ideas and facts are articulated through copyrightable expression; hence anything that a patient writes about a doctor or dentist is likely to have sufficient originality to be copyrighted. The Medical Injustice agreements allow professionals who use them to suppress the underlying opinions and facts, not to reap financial rewards from the expression and not to encourage further creativity. This is a misuse of copyright law and in our view it needs to be stopped.
However, from a future policy perspective, it appears that this lawsuit has already been a win. Within a day of the lawsuit being filed, Medical Justice has announced that it's retiring the agreement
... and that it probably should have earlier
. It also claims that it's telling doctors to stop using them. We'll see if that actually happens... and if anyone else jumps into the fray instead.