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.

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Companies: medical justice

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Comments on “Court Not Impressed By Dentist Using Copyright To Try To Censor Online Reviews”

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41 Comments
G Thompson (profile) says:

Re: Re: Re:2 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-speech-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-speech-does-not-create-substantial-hardship.shtml [Accessed April 24, 2013].

What you wrote was a hyperbolic link

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

Re: 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.

Anonymous Coward says:

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

out_of_the_blue says:

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.

Anonymous Coward says:

“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.

Anonymous Coward says:

Re: 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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