Copyright

by Mike Masnick


Filed Under:
dmca, stacy makhnevich

Companies:
medical justice



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

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  • icon
    Ninja (profile), 23 Apr 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.

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

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

    Mike,

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

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

  • identicon
    Anonymous Coward, 23 Apr 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

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    out_of_the_blue, 23 Apr 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.

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

    • icon
      Zakida Paul (profile), 23 Apr 2013 @ 12:38pm

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

      More rich envy. What a bellend.

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

    • identicon
      S. T. Stone, 23 Apr 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.

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

    • identicon
      Anonymous Coward, 23 Apr 2013 @ 12:42pm

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

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

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

      • icon
        Gwiz (profile), 23 Apr 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.

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

    • identicon
      Anonymous Coward, 23 Apr 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.

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

    • identicon
      jackn, 23 Apr 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?

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

      • identicon
        out_of_the_blue, 23 Apr 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.

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

    • identicon
      Anonymous Coward, 23 Apr 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

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

      • identicon
        Anonymous Coward, 23 Apr 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 chronology ]

    • identicon
      DeP, 24 Apr 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 chronology ]

  • icon
    Chosen Reject (profile), 23 Apr 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.

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

  • identicon
    Anonymous Coward, 23 Apr 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.

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

  • identicon
    Anonymous Coward, 23 Apr 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!

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

    • identicon
      Anonymous Coward, 23 Apr 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.

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        Anonymous Coward, 23 Apr 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!

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

      • identicon
        Anonymous Coward, 23 Apr 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.

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

      • identicon
        jackn, 23 Apr 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).

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

  • identicon
    Anonymous Coward, 23 Apr 2013 @ 2:45pm

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

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

    • identicon
      Anonymous Coward, 23 Apr 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.

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

  • identicon
    Anonymous, 23 Apr 2013 @ 6:22pm

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

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


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