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 RateMyMD.com. 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.
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Filed Under: cda, copyright, dmca, doctors, ratings
Companies: medical justice
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If my DR was that paranoid
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Re: Discrimination?
> against him for discrimination
Discrimination? WTF? Now we have people who apparently think that a doctor refusing patients because they won't sign copyright clauses qualifies as legal "discrimination".
Discrimination is perfectly legal so long as it's not based on a protected class (race, religion, gender, handicap, etc.). Our society hasn't quite yet reached the ridiculous point where refusal to sign copyright clauses is a protected class.
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actually..
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Re: actually..
> declared null and void since that clause is non-conscionable.
First, the word is "unconscionable", not "non-conscionable".
Next, having a contract voided is not nearly as easy as you seem to think. What would be the basis for your claim of unconscionability? [And "I just don't like it" won't suffice. Especially when the court will correctly note that you as the customer had many other options than signing up with this one particular doctor.]
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Jesus
On the other hand, I suppose to be accurate most of the founding fathers would also have to have a slave or two in tow...Sigh, there's no more good guys.
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Re: Jesus
That implies there were any to begin with...
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Re: Re: Jesus
I think the accurate description might be something along the lines of, "Anyone that wants to be in government isn't fit to be."
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Re: Re: Re: Jesus
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DMCA everywhere...
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Teachers, Professors, PRODUCTS?
A very short list of sites that could become targets:
www.ratemyteachers.com
www.ratemyprofessors.com
www.bizrate.com
.. etc.
Watch as the product reviews are pulled from Amazon, too.
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Bad URL
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IANAL
Is that even legally possible? Can I sign away my rights on writing about a specific topic?
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Re: IANAL
> writing about a specific topic?
Yes.
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Where's the problem?
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Rights
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Re: Rights
> Rights are basic to all humans.
Wrong. People can and do legally waive their rights all the time.
I have a right against self-incrimination but if the police come arrest me and I want to confess, I can do so, and the state can use my confession against me at trial.
I have a right against warrantless search and seizure but if the police come to my door and ask to search my house even though they don't have a warrant, I can decide to waive that right and let them search anyway.
I have a right to an attorney in a criminal proceeding but I can choose to waive that right and represent myself.
I have a right to free speech but I can waive that right and take a job which forbids me from speaking to the media without permission.
I have a right to benefit from the intellectual property I create, but I can waive that right in exchange for money or services and assign those rights to another.
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Re: Re: Rights
That's not quite the same. While you can waive some rights, the waiver is revocable.
I have a right against self-incrimination but if the police come arrest me and I want to confess, I can do so, and the state can use my confession against me at trial.
And that's a good example of what I just pointed out. You may waive your right against self-incrimination and make an incriminating statement, but you may also re-invoke it afterward and make no more statements. The police may not then attempt to force (torture, etc.) you to make more statements using the excuse that you waived your rights. Because you still actually have rights, whether you choose to invoke them at any particular time or not.
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Re: Re: Re: Rights
But you can't take back what you already said, nor can you prevent the police/prosecution from using it against you at trial.
Just as with copyright, you can give up the rights to others, then decide at some point to stop giving up rights, but you can't take back what you've already given away.
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Review Sites' Waivers
Also, I'm fairly certain that there are websites that require a paid membership to read the reviews of other users. Doesn't this monetize the writings themselves? I just think sometimes people assume that reviews such as the ones touched on in this article have no value, but to a website like Yelp or Amazon, they definitely bring in pageviews and ad dollars.
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Pretty sure that contract is invalid
Here's another question: If a medical professional refused treatment because of unrelated business considerations, isn't that at least a very serious breach of medical ethics?
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Re: Pretty sure that contract is invalid
Yes, you can. People assign intellectual property rights like that all the time, even for works not yet created. Artists assign their rights in trust for the benefit of their children, for example.
> but just telling someone (under duress)
What duress? Merely offering a contract with terms the patient finds objectionable is hardly duress. The customer is free to shop elsewhere if they don't like the terms of the contract. Duress would be threatening the patient with physical harm if they don't sign the contract.
> to sign an agreement transferring the copyright to work
> not yet created (without consideration) won't hold up.
There *is* consideration. The doctor's medical treatment is the consideration. The doctor is agreeing to treat the patient in exchange for the patient's money and agreement to the terms of the contract.
There's legally nothing wrong with these contracts. They're garbage from a moral standpoint, perhaps, but a court would find them perfectly valid.
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A way around this?
For example, If I went to doctor X and he screwed me up, and I signed one of these agreements, there would be nothing stopping my wife from giving the doctor a bad review based on what I have told her about my experience. I think a great new website would be: "RateMySpousesMD.ca"
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Re: A way around this?
> up the review? whether or not they can legally claim rights to
> your writings about the doctor, you certainly can't sign away
> other's rights.
Bingo.
That's why all this is just a bunch of meaningless hoopla. This Medical Justice group thinks it's so clever but there's a huge flaw in their plan, which you just pointed out.
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Re: Re: A way around this?
So, if you dictate a review to a transcriptionist, then the copyright belongs to the transcriptionist? For a supposed lawyer, you sure come up with some "interesting" legal theories.
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Re: Re: Re: A way around this?
> copyright belongs to the transcriptionist?
No, bright eyes. I guess I'm going to have to explain this to you more pedantically.
if you come home from Dr. Smith's office and tell your wife, "That guy sucked. I waited for three hours and all he gave me was an aspirin and my hip still hurts", your wife is then perfectly free to go on RateMyDoctor.com and post a review of her husband's experience with Dr. Smith. And no amount of copyright hoopla you signed in the doctor's office can stop her.
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Re: Re: Re: Re: A way around this?
OK, little snot nose, please try.
if you come home from Dr. Smith's office and tell your wife,
blah, blah, blah
a review of her husband's experience
blah, blah, blah
Ah, but you see, a consumer review is a testimonial of one's own experience with goods or services. Her interpretation of what some else said is not a review, but hearsay. Didn't you learn anything in law school? Where do you work anyway? Someone needs to forward some of your comments to them so they can get a good chuckle.
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Re: Re: Re: Re: Re: A way around this?
So what? Just because hearsay is generally inadmissible in court doesn't mean it's inadmissible in society in general; the rule against hearsay certainly doesn't apply to ratings web sites, genius.
> Didn't you learn anything in law school?
I learned that the rules of evidence only apply to... you know... actual evidence introduced at trial. Not some medical quality review web site.
On the other hand, if you think differently, then feel free to quote the statute, code, rule, case or ordinance that prohibits the use of hearsay on customer review web sites.
This oughta be good...
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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. (Unless she lies and claims that she does, of course, but that's a different matter. And a "review" site that knowingly allows fake "reviews" isn't going to be trusted very long.) So the only way for her to "write" a review is to actually transcribe her husband's, in which case it is his review and not hers and thus covered by the copyright assignment.
Just how dense are you, anyway?
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Re: Re: Re: Re: Re: Re: Re: A way around this?
> 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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Doctor Rating Sites
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Doctors Want Patients To Waive Their Right to Comment Online!
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..and don't use dentists or doctors in Nevada unless you want your treatment based on how well the staff did out gambling the night before.
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...Favorite Rhetorical Reason is
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Copyright Issues
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Doctor Reputation Management
Two observations from HMCOE's work with 5000+ doctors:
1) Doctors who don't have a customer service process in their practice are the ones at risk. Patients' satisfaction is critical to any medical practice.
2) It's the physician ratings websites that are at fault for un-fair use, plagiarism, defamation, copyright infringements, and most importantly... trademark infringements. Since when is it legal to profit from trashing someone's name? Yet the ratings sites profit from it while violating every major business ethic in the book.
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