Using The DMCA To Stop Patients From Rating Their Doctors

from the signing-over-your-rights dept

Fri, Apr 3rd 2009 7:30am — Mike Masnick

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

38 Comments

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AC's long lost brother, 3 Apr 2009 @ 8:02am

If my DR was that paranoid
I would go elsewhere... With details of lawsuits being kept confidential anymore, you can't even find out if a dr has been successfully sued for malpractice, so word of mouth is about the ONLY way to find a good one. If they don't get that, then they need to find another profession where their delicate sensitivities won't be offended...
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Rob R., 3 Apr 2009 @ 8:18am

I would not sign that form, and if that made that doctor refuse to treat me I'd either file against him for discrimination or at a minimum make sure he gets a TON of bad press over it. Any doctor that insists that you cannot review them does not need to be practicing medicine. This stuff is getting ridiculous!
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ehrichweiss, 3 Apr 2009 @ 8:27am

actually..
Actually it would be "contractual"..in that you'd get the contract declared null and void since that clause is non-conscionable.
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Tgeigs, 3 Apr 2009 @ 8:40am

Jesus
Every once in a while I run into a story on this site that causes me to slip into a daydream where one of the primary founding fathers appears in front of these lawyers, runs them through the constitution point by point, explains to them what they were ACTUALLY trying to create, and then promptly beats the hell out of them with a sledgehammer for fucking it all up.

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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Noah Body, 3 Apr 2009 @ 8:43am

Re: Jesus
"Sigh, there's no more good guys"
That implies there were any to begin with...
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Greg, 3 Apr 2009 @ 8:45am

I love that the company is called "Medical Justice". What an awesome name.
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Tgeigs, 3 Apr 2009 @ 8:48am

Re: Re: Jesus
Yeah, I know, but c'mon, there's got to be one or two people out there that aren't totally worthless. I mean, Ghandi seemed alright, didn't he? Mother Theresa...good person.

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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Vic, 3 Apr 2009 @ 9:06am

DMCA everywhere...
The original AP article is gone! DMCA?...
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Dangerously, 3 Apr 2009 @ 9:19am

Teachers, Professors, PRODUCTS?
How much longer until teachers, professors, and even manufacturers get on this bandwagon? After all, they all have reputations to protect, and bad reviews are damaging.

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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Anonymous Coward, 3 Apr 2009 @ 9:28am

Bad URL
It appears the site is RateMyMD.ca, not .com, which leads to one of those junk pages.
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Nathan, 3 Apr 2009 @ 9:30am

Re: Re: Re: Jesus
Unfortunately, Ghandi was a pederast and Mother Theresa had a death fetish. Sorry.
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Bil Corry, 3 Apr 2009 @ 9:52am

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."
Couldn't you just assign the same intellectual property rights to the public domain or another party BEFORE signing the doctor's waiver, pre-empting their claims? Or at least you could truthfully say that you don't have the rights to assign.
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The infamous Joe, 3 Apr 2009 @ 10:05am

IANAL
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.

Is that even legally possible? Can I sign away my rights on writing about a specific topic?
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snowburn14, 3 Apr 2009 @ 11:14am

Where's the problem?
So, the doctor's represented by Medical Justice will be (potentially) the only ones with no reviews available on the ratings sites. Is this a problem for anyone? Are there any people looking for a doctor who would see that and think "Oh, nobody has written anything at all about this guy. He MUST be good!" Similar logic applies to people who aren't looking them up online, and walk in as new patients to find they have to waive their rights to comment on their treatment if they want to receive any. The idea that anyone even considered being treated by a doctor that wanted them to sign such a thing is pathetic, and I say they get what they deserve if the docs wind up sucking.
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Anonymous Coward, 3 Apr 2009 @ 11:19am

Rights
Actually, you can't sign away any of your rights. Rights are basic to all humans. Only the government can take away rights for extreme circumstances.
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Crapknocker, 3 Apr 2009 @ 2:57pm

Review Sites' Waivers
I am curious. How would a waiver like this interact with a waiver from a website that also claims copyright on whatever reviews you write?

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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pr, 3 Apr 2009 @ 3:44pm

Pretty sure that contract is invalid
I'm not a lawyer, nor do I play one on TV, but at least the last time I checked you can't just sign away copyright like that. Under a specific "work for hire" agreement the employer holds the copyright for work produced and paid for, but just telling someone (under duress) to sign an agreement transferring the copyright to work not yet created (without consideration) won't hold up.

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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Agonizing Fury, 3 Apr 2009 @ 9:37pm

A way around this?
Ok, so what happens if my friend or significant other writes 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.
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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BTR1701, 4 Apr 2009 @ 6:38am

Re: Discrimination?
> if that made that doctor refuse to treat me I'd either file
> 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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BTR1701, 4 Apr 2009 @ 6:42am

Re: actually..
> Actually it would be "contractual"..in that you'd get the contract
> 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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BTR1701, 4 Apr 2009 @ 6:44am

Re: IANAL
> Is that even legally possible? Can I sign away my rights on
> writing about a specific topic?

Yes.
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BTR1701, 4 Apr 2009 @ 6:49am

Re: Rights
> Actually, you can't sign away any of your 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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BTR1701, 4 Apr 2009 @ 6:55am

Re: Pretty sure that contract is invalid
> you can't just sign away copyright like that.

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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BTR1701, 4 Apr 2009 @ 6:57am

Re: A way around this?
> Ok, so what happens if my friend or significant other writes
> 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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Anonymous Coward, 4 Apr 2009 @ 2:42pm

Re: Re: Rights
Wrong. People can and do legally waive their rights all the time.

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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Anonymous Coward, 4 Apr 2009 @ 2:51pm

Re: Re: A way around this?
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.

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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BTR1701, 4 Apr 2009 @ 5:08pm

Re: Re: Re: Rights
> but you may also re-invoke it afterward and make no more statements

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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BTR1701, 4 Apr 2009 @ 5:13pm

Re: Re: Re: A way around this?
> So, if you dictate a review to a transcriptionist, then the
> 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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Anonymous Coward, 4 Apr 2009 @ 7:11pm

Re: Re: Re: Re: A way around this?
No, bright eyes. I guess I'm going to have to explain this to you more pedantically.

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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BTR1701, 4 Apr 2009 @ 9:00pm

Re: Re: Re: Re: Re: A way around this?
> Her interpretation of what some else said is not a review, but hearsay.

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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Anonymous Coward, 5 Apr 2009 @ 1:20am

Re: Re: Re: Re: Re: Re: A way around this?
So what?

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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BTR1701, 5 Apr 2009 @ 6:16am

Re: 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. 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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Concerned Patient, 5 Apr 2009 @ 12:16pm

Doctor Rating Sites
No matter how much doctors and their lawyers may want to "handcuff" their patients rights, it is hard to enforce such a contract since in most sites doctor reviews are posted anonymously. With the exception of a few. RateMds.com, MyDocHub.com and others allow for ratings without registration. RateMds.com logs your IP, MyDocHub.com does not, and Angieslist.com makes you register. I think it is a waste of time for the doctors. They could be spending their time improving their patient satisfaction by training their front office staff to more friendly.
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Medical Web Experts, 3 Jul 2009 @ 1:01am

Doctors Want Patients To Waive Their Right to Comment Online!
Having an internet presence won’t help you anything for your business. It’s much more than just a website. From all the past experiences with the healthcare on the web, the best way to market a medical practice, in my opinion is to control your online reputation. And the absolute best way to do that is have your own review site where you have your patients write reviews. This will allow you to control which reviews get published online for others to see. Imagine a review site that notifies you every time one of your patients writes a review. Then you can decide whether that review gets pushed out over the internet and to search engines like Google and Yahoo. Essentially you get to control your Medical practice’s reputation online. I came across a website designing and marketing company named as www.medicalwebexperts.com , with which I had a contract for advertising and optimizing my website to make it google-friendly, and most importantly patient friendly. My aim was not only creating money by marketing the website, but providing care and comfort to the patients by providing them some crucial information. The main problem with my website was found to be improper website coding and irrelevancy of content, which resisted my website to be listed in top most search result and far beyond reaching the favorite list of websites for patients, and there were no provisions to have some two way communication with patients and doctors. This hindered website from being popular .The Company did well in reconstructing my website, making it popular using SEO techniques. They also added the functionalities like education to patients, patient portals to keep track of their health, discussion board to allow every patient to express their opinions and experiences, which might help other patients. Such facilities helped my patients to interact with each other, and getting the reviews from each other regarding the practices. The benefits were then slowly coming into action. The trust factor and the soft corner for the doctors seemed to emerge in patients and that was the desperate goal I was trying to pursue. Website helped me getting a good sum of patients at my doorstep, as well as creating a better relationship with the patients. Web marketing really helped my business work, making my investments in SEO worthy.
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Captain Obvioua, 22 Aug 2009 @ 10:57pm

Courts enforce the INTENT of the law before the LETTER; otherwise there would be no need for courts.

..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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Stinking Crock, 31 Aug 2009 @ 8:07am

...Favorite Rhetorical Reason is
...how many attorneys can dance on the tip of a turd?
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GramJ, 11 Jan 2011 @ 12:58pm

Copyright Issues
There are many copyright issues that crop up with time, but this is definitely one of the most bizarre I have ever heard of. Attempting to enforce such a policy would be incredibly difficult and it seems contrary to tell patients they cannot review the service they receive from their doctor. Just like discounted electronics or specific brand names, there is a reputation built through the quality of service and doctors have to pay attention to customer service just as much.
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Simon Sikorski, M.D., 13 Dec 2012 @ 8:16am

Doctor Reputation Management
All these doctors and companies focusing on patients should stop and smell the roses... it's not the patients who are the problem.

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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