Using The DMCA To Stop Patients From Rating Their Doctors

from the signing-over-your-rights dept

Last month, Carlo wrote about how a number of doctors were pushing their patients to sign waivers, promising that they wouldn't review the doctors online -- and that one company would go around trying to enforce these waivers and get critical comments pulled down from ratings sites like The whole thing seemed quite odd -- but in another article about the service (found via Michael Scott), the details make it clear that this is even more questionable than we previously thought. That's because the way the "waivers" from the company "Medical Justice" work is by having the patient "assign all intellectual property rights for anything the patient may write (and publish) about the physician to the physician." Then, the physician can claim copyright infringement on any review, and force it offline. So unlike what was implied in the original article, it wouldn't be a specific contractual issue, but a copyright issue.

This is not what copyright law was intended to do.

Of course, it does bring up a few interesting points of discussion. First, is that the main purpose of using copyright here is so that the doctors can make use of the DMCA's notice-and-takedown safe harbor provisions, rather than be stymied by the similar (but not quite the same) CDA section 230 safe harbors for things like defamation. One of the key differences between the two is that Section 230 doesn't have a notice-and-takedown provision (though some have been trying to add one). So, really, all this is designed to do is figure out a way to shift the critical rules in question from the CDA to the DMCA. Sneaky!

Second, is that I wonder if this would be seen as actual copyright infringement anyway, or if reviewers could make a credible fair use defense. In some cases, the review itself might not even be covered by copyright (i.e., if there's no creative expression in it -- such as simple "he's awful!" reviews). In other cases where copyright might exist, the four factor fair use test might allow its use. While it could hurt the doctor's ability to make money as a doctor, it wouldn't be harming the market for the copyrighted content. Also, the use would be for purposes of "criticism." So, it's difficult to see how such content posted on a review site would actually violate anyone's copyright, even if the rights really were signed over.

But... (and this is where that sneaky first part comes into play), this might not matter. Even though you can get in trouble for filing a false DMCA notification (and even for failing to take fair use into account), most online services will quickly pull down content when receiving a DMCA takedown to preserve their safe harbor protections. So in almost all cases, the content will get pulled down, even if the content isn't really infringing. And, then it seems quite unlikely that any reviewer/patient will find it worth the trouble of filing a counternotice.

So, really, this is a fascinating misuse of the DMCA that will live on (unless someone like the EFF decides to make an example of it). What it really highlights is one of the many problems with the DMCA's notice-and-takedown provision, which heavily incentivizes service providers to pull down content as quickly as possible. As a result of that, companies like Medical Justice have tremendous incentives to come up with a plan like this to shift what they do to a copyright issue, solely to make use of the notice-and-takedown provision, even in cases where there's no actual infringement of the copyright.

Filed Under: cda, copyright, dmca, doctors, ratings
Companies: medical justice

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  1. identicon
    BTR1701, 5 Apr 2009 @ 6:16am

    Re: Re: Re: Re: Re: Re: Re: A way around this?

    > It means that she can't submit a "review" because she
    > doesn't have first hand experience from which to write a
    > review. A "review" site that knowingly allows fake "reviews"
    > isn't going to be trusted very long

    Only if those are the rules of the web site. Not because it's "hearsay". Even if web sites like the medical review site in question have rules prohibiting 3rd-party reviews, those rules will likely start changing rather quickly in response to this disingenuous attempt by doctors to use copyright law to shut them down. It's either change the rules or go out of business.

    And a review is not fake merely because it's hearsay, so a web site that allows such reviews isn't necessarily in danger of being untrustworthy, especially if the wife prefaces her review with "Since my husband had to sign away his right to post a review in order to be treated, I'm doing it for him. Dr. Smith can't stop me because I'm not in privity of contract with him." Once the reason for the 3rd-party review is clear, the credibility issues disappear.

    > Just how dense are you, anyway?

    Don't worry, bright eyes, you still have me beat by a country mile.

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