About a year ago, we wrote about the really troubling concept pushed by a group called Medical Justice, which tries to "protect" doctors from negative reviews online by having them demand that patients hand over the copyright
on any future reviews they might write. As we noted at the time, this was an attempt to completely abuse copyright law, way beyond its intended purpose -- though we wondered if it would actually work. Here's what we wrote a year ago:
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.
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:
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.
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.
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.
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.