Plaintiff Awarded Damages In Default Judgment Against Censorious Dentist Who Billed Him $110,000 For His Negative Review
from the Streisanded-into-apparent-nonexistence dept
(Former?) dentist Stacy Makhnevich utilized a shady firm's (Medical Justice) legal documents to force a patient to sign over his copyright to any future reviews of her service. When he posted negative comments about her services, she followed this up by billing him $100/day for the Yelp review he supposedly no longer controlled.
This censorious behavior resulted in two things: a class action lawsuit being brought against the dentist by Public Citizen and a severe Streisanding that saw Makhnevich's personal and professional reputation torn to shreds by internet denizens, most notably at the same site she attempted to silence.
Shortly thereafter, Makhnevich simply… disappeared. She filed a motion to dismiss the class action suit, but received only sharp criticism from the judge for her "ridiculous" arguments. That was pretty much the last anyone saw of the disgraced dentist, something that makes plaintiff Robert Allen Lee's win somewhat bittersweet.
According to the default judgement [PDF] by a U.S. District Court in NYC last week, the judge concurs, saying that the prohibition against negative criticism, along with the use of copyright claims to prevent these reviews from being seen “constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.”The very short decision points out that Makhnevich was wrong about pretty much everything before awarding presumably uncollectable damages to Lee.
The Court declares as follows:The other upshot of the lawsuit is that Medical Justice has ceased offering the legally-dubious forms deployed by Makhnevich, albeit in a rather begruding fashion.
A. Notwithstanding the claim of defendants Stacy Makhnevich, Aster Dental, Chrysler Building Dental Association, North East PC, South East Dental Suite, Lincoln Square Dental Arts, Lincoln Square Dental Arts of Manhattan, and Chrysler Dental (collectively, "defendants") to ownership of the copyright in writings by plaintiff Robert Allen Lee about them, Robert Allen Lee's posting of public comments about defendants' services ("Lee 's Commentary") is a non-infringing fair use pursuant to Section 107 of the Copyright Act;
B. Obtaining the promise by plaintiff Robert Allen Lee in the Mutual Agreement to Maintain Privacy (the "Agreement') not to publish criticism of defendants, the Agreement's purported assignment of copyrights, and the assertion of copyright claims by defendants for the express purpose of preventing the dissemination of Lee's Commentary, constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse;
C. Robert Allen Lee's assignment and promise in the Agreement not to publish criticisms of defendants are null and void for lack of consideration;
D. Robert Allen Lee's assignment and promise in the Agreement not to publish criticisms of defendants are null and void for unconscionability;
E. The Agreement is a deceptive act or practice in violation of Section 349(a) of the New York General Business Law; and
F. Lee' s Commentary is not actionable defamation under New York common law.
Plaintiff Lee is awarded $4,766 in damages against defendants, jointly and severally, for their breach of contract, together with his costs of suit.
"While we believe these agreements are honest, ethical, and legal, we are going to use this situation as an opportunity to retire these written agreements used since 2007," MJ CEO Jeffrey Segal told Ars on Wednesday. He claims that MJ will recommend to doctors that they stop using the agreements, and that patients will not be asked to sign any such agreements in the future.The worst thing you can do about bad reviews is pretty much everything Makhnevich did: misuse copyright law, fire off cease-and-desist orders and bogus DMCA takedown requests, and bill unhappy customers to the tune of $110,000. Disappearing was probably a wise choice, but it does tend to result in default judgments. Lee may find it hard to collect what he's owed from the missing dentist, but the court's short but thorough dismantling of her every move should serve as a warning to future business owners who think it's wise to deploy the nuclear option when criticized.