by Mike Masnick
Tue, Sep 28th 2010 6:29pm
by Mike Masnick
Tue, Sep 28th 2010 1:28am
blue shield of california
from the free-speech-ain't-free dept
by Mike Masnick
Wed, Jun 9th 2010 11:48am
from the it's-just-bad-all-around dept
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!Since then, we hadn't heard too much about this practice, and had kind of hoped it had just gone away. No such luck. The NY Times recently had an article about how people who vent about bad service online might get them sued, and it mentions Medical Justice and their copyright trick. So, even though this has been going on for a bit, now that the NY Times has covered, it's starting to get much more widespread interest. Public Knowledge has done a pretty thorough critique on the legal aspect of this echoing many of the points I made last year:
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.
Asserting copyright ownership over future physician ratings raises a number of basic copyright problems. First, it is unclear whether a person can even assign copyright ownership in a work that has not yet been created, outside of a work-made-for-hire relationship. Second, it seems that many of the ratings that upset Medical Justice cannot be copyrighted at all. A doctor using the Medical Justice agreement to censor an unfavorable review is really fighting against the idea in the review, not the expression that embodies it. This is a dichotomy long established in copyright law: copyright protects the expression of ideas, not the ideas themselves. If the works at issue can't be protected under copyright law, then nobody owns the copyright to them--not the patient, and not any assignee to whom she purportedly transfers the copyright. The ratings on many of the sites that Medical Justice dislikes (ratemds.com, vitals.com, drscore.com, doctorscorecard.com) include both space for written comments and numerical rating systems, while others (healthgrades.com, revolutionhealth.com) only collect numerical information, with no space for users to write any comments about the doctor. The numerical ratings pretty clearly have no original creativity element in them that would allow any person to claim copyright over them. Even the brief written comments likely include many examples that lack sufficient originality (ex. "Dr. Smith was mean.") to be protected under copyright law.And, it's actually even worse than that. PK also points out that, in theory, if this is allowed, then a Doctor could sue a patient for a bad review, claiming "copyright infringement" and demand statutory damages of between $750 and $150,000 for each bad review. Think about that for a second.
Even if the rating could be protected under copyright and the doctor somehow obtained legal ownership of the copyright, it seems fair use would still prevent doctors from demanding take-downs. The ratings are used for criticism, and while they may affect the doctor's business, they do not hurt the market for the rating itself. And, as discussed above, many of these ratings are barely, if at all, creative enough to be protected by copyright.
Using these "Anti-Defamation" agreements to assert purported intellectual property rights not only opens the door to the DMCA notice-and-takedown regime, but removes the case entirely from the auspices of the CDA, where it belongs. Section 230 of the CDA protects sites from liability for user-generated content, except in instances of criminal liability or intellectual property infringement. Medical Justice is clearly not a fan of the policy judgments embodied in Section 230 (here Medical Justice refers to the well-established statute as "an arcane nuance of cyberlaw"). Nevertheless, Congress has already decided that imposing liability on websites for the behavior of their users would only inhibit the development of online services. These agreements twist intellectual property law to subvert congressional intent, which is particularly problematic when Congress has already established legal mechanisms to handle defamation claims.
Separately, Jason Schultz points out that this whole scheme appears to violate basic medical ethics rules. He points to a particular rule:
Under no circumstances may physicians place their own financial interests above the welfare of their patients. The primary objective of the medical profession is to render service to humanity; reward or financial gain is a subordinate consideration. For a physician to unnecessarily hospitalize a patient, prescribe a drug, or conduct diagnostic tests for the physician's financial benefit is unethical. If a conflict develops between the physician's financial interest and the physician's responsibilities to the patient, the conflict must be resolved to the patient's benefit.How does that apply here? As Schultz explains:
Since the main concern of Medical Justice appears to be preventing harm to the physician's reputation (and thus financial interest), forcing patients to assign away their copyrights in exchange for medical care strikes me as close if not over this line. It certainly is not putting patients first. When a patient goes to see a doctor, they are often anxious, in pain, or worried and thus in a very psychologically vulnerable position, or what the law often calls a position of "duress" where they will often sign documents without giving them proper consideration. This hardly seems to me to be a fair time to demand they assign some unknown number of future copyrights to their doctor; instead it feels like a huge power grab by the physician.When you create draconian copyright laws that include free speech removing notice-and-takedown provisions, don't be surprised when people abuse it for other purposes, well beyond the intent of copyright law.
by Mike Masnick
Thu, May 6th 2010 1:55am
from the information-wants-to-be-free dept
by Greg Fenton
Mon, Apr 26th 2010 5:18pm
from the too-much-information-access-makes-the-gatekeepers-angry dept
The title of this article is a tad melodramatic, claiming "Big Brother doctors say patients don't need to see their imaging test results," but the conclusion from a study of a small sample set of radiologists and referring physicians is that these medical professionals are against empowering their patients with their own information.
This isn't too surprising knowing that the entire healthcare system is wrought with ill-conceived ideas against efficient and ready access to patient health records.
Physicians with a "Big Brother" mindset apparently think people having imaging tests are incapable of dealing with the outcomes without suffering from so much anxiety they must be protected from seeing the results.
It's not clear exactly that this attitude is akin to an Orwellian state, rather than simply an elitist mindset. Many "experts" feel that people outside of their field have no business reviewing their work (look at the commenters on Techdirt who claim others should not comment on music/patents/laws/newspapers if they aren't a musician/inventor/lawyer/journalist).
The attitude of these physicians is just one reason of a whole host as to why the healthcare system is one of the last industries holding out against the IT revolution. The argument that patients will freak out being exposed to the core information that leads to diagnoses is ridiculous. If someone is going to be overly anxious, it isn't because they have information; they'll be anxious because they have symptoms and a diagnosis, but little-to-no information. They'll be anxious because the medical industry is unwilling to have a two-way conversation with the patient themselves.
There are many examples of this elitism when it comes to sourcing and analysis of information. Why is it that experts fail to recognize that more points of view have a greater opportunity for catching errors and bringing different perspectives to the forefront? In addition, bringing the patients into the conversation gets them involved in their own health stories, leading to many long term benefits and ultimately lower healthcare costs. But maybe this is another one of the reasons the healthcare industry is unwilling to change?
by Mike Masnick
Mon, Mar 22nd 2010 9:54am
from the oh-really? dept
"I would discourage doctors from participating in any form of social networking, but if they do, I would encourage them to privatize their information."The other big concern is that doctors are told not to look up info on patients on social networking sites or to friend patients. While there are obvious pitfalls there, my guess is that the younger generation of doctors will figure out a more balanced means of still using social networking sites without causing serious ethical problems.
by Mike Masnick
Wed, Oct 21st 2009 8:34am
from the feeling-healthy-yet? dept
Or consider Dr. Alan F. Schatzberg, chair of Stanford's psychiatry department and president-elect of the American Psychiatric Association. Senator Grassley found that Schatzberg controlled more than $6 million worth of stock in Corcept Therapeutics, a company he cofounded that is testing mifepristone--the abortion drug otherwise known as RU-486--as a treatment for psychotic depression. At the same time, Schatzberg was the principal investigator on a National Institute of Mental Health grant that included research on mifepristone for this use and he was coauthor of three papers on the subject.Angell notes that this is pretty common:
Indeed, most doctors take money or gifts from drug companies in one way or another. Many are paid consultants, speakers at company-sponsored meetings, ghost-authors of papers written by drug companies or their agents, and ostensible "researchers" whose contribution often consists merely of putting their patients on a drug and transmitting some token information to the company.And as the relationship between doctors and pharma has gotten deeper and deeper, it means that the results of those all important "clinical trials" -- which the pharma supporters always insist are so important -- are highly suspect:
Because drug companies insist as a condition of providing funding that they be intimately involved in all aspects of the research they sponsor, they can easily introduce bias in order to make their drugs look better and safer than they are. Before the 1980s, they generally gave faculty investigators total responsibility for the conduct of the work, but now company employees or their agents often design the studies, perform the analysis, write the papers, and decide whether and in what form to publish the results. Sometimes the medical faculty who serve as investigators are little more than hired hands, supplying patients and collecting data according to instructions from the company.And yet the FTC is more worried about a mommy blogger recommending a book that a publisher sent her for free?
In view of this control and the conflicts of interest that permeate the enterprise, it is not surprising that industry-sponsored trials published in medical journals consistently favor sponsors' drugs--largely because negative results are not published, positive results are repeatedly published in slightly different forms, and a positive spin is put on even negative results. A review of seventy-four clinical trials of antidepressants, for example, found that thirty-seven of thirty-eight positive studies were published. But of the thirty-six negative studies, thirty-three were either not published or published in a form that conveyed a positive outcome. It is not unusual for a published paper to shift the focus from the drug's intended effect to a secondary effect that seems more favorable.
by Mike Masnick
Wed, Sep 30th 2009 12:44pm
from the that-seems-bad dept
by Mike Masnick
Tue, Aug 4th 2009 11:44am
from the brain-surgery? dept
I'm thinking of this, as I see this story noting that 50% of doctors admit to doing research on Wikipedia. I'd guess a few of them are even brain surgeons. So can we get rid of this stupid claim that Wikipedia isn't trustworthy? The studies mentioned in the article found that medical info on Wikipedia has a very high level of accuracy. No, no one's learning brain surgery from Wikipedia, but to pretend its not a useful resource among many others is simply ignoring reality.
by Mike Masnick
Mon, Jul 27th 2009 2:38pm
from the seems-like-a-pretty-serious-problem dept
"The patents are based on observations of the laws of nature," says David Herbert, chief administrative officer for Mayo Medical Laboratories. "We chose to make a stand." Such "observational" patents increase costs, slow innovation, and worsen patient care, he says. "It doesn't allow the test to be performed close to the bedside, and there's no ability to have second opinions."The lawsuit is in the appeals court right now -- with a current ruling that the patents aren't valid for merely observing nature, though an earlier summary judgment found the other way. Still, this isn't just some random discussion on patents and copying. Lives are at stake, and doctors are pissed off at the ridiculousness of the situation:
"Physicians have longstanding obligations to advance and share useful medical knowledge with patients and physicians." Patents on basic scientific principles "threaten to stifle innovation and raise the costs of medical treatment." And claiming exclusive rights to "scientific facts," such as the correlation that Prometheus purports to own, actually harms research and personalized medicine rather than helping it, the doctors argue.Hopefully the court realizes how dangerous such patents are for society (beyond just being ridiculous) and rejects them.