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.