Court Not Impressed By Dentist Using Copyright To Try To Censor Online Reviews

from the copyright-as-censorship dept

Tue, Apr 23rd 2013 12:20pm — Mike Masnick

We've written a couple of times about dentist Stacy Makhnevich, who used some forms from a company called Medical Justice, to make patients agree to assign the copyright on any online reviews they might later write over to the doctor or dentist. This struck many as of questionable legality and even more questionable ethically speaking. Medical Justice -- after receiving much criticism -- has completely changed its model (and name) and has urged doctors and dentists not to use its earlier forms. However, Makhnevich, actually sent one patient an invoice for $100/day, claimed $85,000 in damages, and asked for $25,000 in "general damages for fraud" (sending the patient a prepared legal complaint with that amount) after he posted negative reviews on Yelp and other sites. The patient, Robert Lee, filed a class action lawsuit in response. Makhnevich also sought to force Yelp to take down the review with a DMCA notice, but the company refused to do so (kudos to Yelp for not caving on a bogus DMCA notice).

The court has now rejected Makhnevich's attempt to dismiss the lawsuit, and appears to have some choice words for the dentist, directly calling some claims "ridiculous":

Defendants' argument that no actual controversy exists is specious. Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for gelling dental treatment. Further, under the totality of circumstances, the controversy is sufficiently "real" and " immediate." Defendants cannot pretend now that their notices to Lee were "just kidding," or that Lee lacked any reasonable apprehension of liability. A brief review of Defendants' conduct in response to Lee's exercise of basic rights shows how ridiculous their arguments are: (1) Defendants twice threatened Lee with suit, the second notification being from an attorney who did not specify a deadline by which suit would commence; (2) Defendants prepared and sent a draft version of the complaint they would file in a New York state court (Ex. D); and (3) Defendants sent two invoices, one which threatened referral to a collection agency. No reasonable person could view Defendants' constant barrage of threats as anything other than a real controversy.

Further, Defendants have not released Lee from liability for the amount threatened in the draft complaint, which is in excess of $110,000, or the amount charged by the two invoices. There is an objectively supported threat of future injury-which Defendants' conduct as created.

The case is not over, and there's a long way to go, but the dentist is not going to get out of this easily.

Makhnevich MTD (PDF)Makhnevich MTD (Text)

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Filed Under: dmca, stacy makhnevich
Companies: medical justice

41 Comments

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Ninja (profile), 23 Apr 2013 @ 11:52am

Secretary: Doctor Makhnevich you have a new patient. She's in the waiting room.
Stacy Makhnevich: Good, what's her name?
Secretary: Streisand.

Ahem. I wonder if it's just me and Ms Streisand but I think trying to silence criticism is a rather effective way to drive people away of your clinic.
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Anonymous Coward, 23 Apr 2013 @ 12:23pm

Mike,

I thought you hated Judge Crotty since he didn't share your same silly views on the domain name seizures.
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- Atkray (profile), 23 Apr 2013 @ 12:29pm
  
  Re:
  "I thought you"
  
  If you don't have a citation for this then you thought wrong.
  
  This is the same mistake my child keeps making trying to think what someone else thinks. He can't do it and neither can you.
  [ link to this | view in chronology ]
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    Anonymous Coward, 23 Apr 2013 @ 1:20pm
    
    Re: Re:
    Judge Crotty, Destroyer of First Amendment Rights and Shitter on the Constitution: http://www.techdirt.com/articles/20110805/10212515405/judge-says-making-it-harder-to-exercise-free-s peech-does-not-create-substantial-hardship.shtml
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    - Anonymous Coward, 23 Apr 2013 @ 2:50pm
      
      Re: Re: Re:
      OK, so where is your citation?
      [ link to this | view in chronology ]
    - Anonymous Coward, 23 Apr 2013 @ 8:23pm
      
      Re: Re: Re:
      That's a citation that Mike thinks the judge got it wrong in that particular case, but says nothing about how he feels about the judge, himself. Care to try, again?
      [ link to this | view in chronology ]
      - G Thompson (profile), 24 Apr 2013 @ 1:03am
        
        Re: Re: Re: Re:
        no.. this is a citation
        
        Masnick, M. (2011, August 5). Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship | Techdirt. Retrieved April 24, 2013, from http://www.techdirt.com/articles/20110805/10212515405/judge-says-making-it-harder-to-exercise-free-s peech-does-not-create-substantial-hardship.shtml
        
        or
        
        Masnick, M., 2011. Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship | Techdirt. Available at: http://www.techdirt.com/articles/20110805/10212515405/judge-says-making-it-harder-to-exercise-free-s peech-does-not-create-substantial-hardship.shtml [Accessed April 24, 2013].
        
        What you wrote was a hyperbolic link
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        G Thompson (profile), 24 Apr 2013 @ 1:04am
        
        Re: Re: Re: Re: Re:
        oops..
        
        *What the 'original' AC wrote was a hyperbolic link (full of hyperbole and vitriol)
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- Anonymous Coward, 23 Apr 2013 @ 12:30pm
  
  Re:
  This may be news to someone in your position, but other humans are capable of having views that aren't black and white.
  [ link to this | view in chronology ]
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    Anonymous Coward, 23 Apr 2013 @ 1:17pm
    
    Re: Re:
    Oh, I understand that. Mike's the black and white thinker. As I recall, he's stated that Judge Crotty hates the First Amendment. Now he's praising the judge for his stand against evil censorship! And to think this judge is over 70 years old. I'm surprised Mike isn't pulling out his usual ageist nonsense.
    [ link to this | view in chronology ]
    - Anonymous Coward, 23 Apr 2013 @ 1:53pm
      
      Re: Re: Re:
      "I'm surprised Mike isn't pulling out his usual ageist nonsense."
      Present an example of "ageist nonsnese", boy...if you dare.
      [ link to this | view in chronology ]
    - Anonymous Coward, 23 Apr 2013 @ 2:27pm
      
      Re: Re: Re:
      Alot of old world views that dont understand technology can be attributed to older people who don't have reason to interact with technology who sit in places of power.
      
      On the other hand, this doesn't mean all their views are bad.
      
      People can agree with some views while disagreeing with others.
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      - Anonymous Coward, 24 Apr 2013 @ 6:04am
        
        Re: Re: Re: Re:
        "old culture" is the real problem, not old people.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 24 Apr 2013 @ 6:20am
        
        Re: Re: Re: Re: Re:
        I doubt that anyone using this site uses a hand crank telephone or even knows what one was but Ms. Helen, lived down the street, was very familiar with one before she died last month at 106.
        
        Age and technology do go together.
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- Anonymous Coward, 23 Apr 2013 @ 1:52pm
  
  Re:
  You..."thought"?
  You have working brain cells, boy?
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  - Anonymous Coward, 23 Apr 2013 @ 2:51pm
    
    Re: Re:
    They're clearly not functioning correctly.
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Anonymous Coward, 23 Apr 2013 @ 12:34pm

nice to see 'Yelp' not cave. so many of the largest of companies seem to do so, rather than fight back, particularly if there are members of the public or just members involved. hopefully at the end of this, others will see that a lot of law suits are unjustified and fighting back over what is your right should be a definite consideration
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out_of_the_blue, 23 Apr 2013 @ 12:37pm

Not copyright. Rich guy mis-using it.
I predict, from the long history of Mike blaming copyright when it's The Rich, that the next item will be similar.

And an inherent problem is that there's really no penalty for mis-using copyright. If Mike got off his "needz more dataz" non-stance then maybe he could at least advocatve some penalties be applied for such mis-use. -- But that'd be Mike going against his own 1% class. Not going to happen.
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- Zakida Paul (profile), 23 Apr 2013 @ 12:38pm
  
  Re: Not copyright. Rich guy mis-using it.
  More rich envy. What a bellend.
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- S. T. Stone, 23 Apr 2013 @ 12:41pm
  
  Re: Not copyright. Rich guy mis-using it.
  maybe he could at least advocatve some penalties be applied for such mis-use
  
  We already have penalties on the books. Why not use those?
  
  Oh. Right. Those in power get to write the rules and weasel their way out of those penalties. Imagine that.
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- Anonymous Coward, 23 Apr 2013 @ 12:42pm
  
  Re: Not copyright. Rich guy mis-using it.
  Do you even read the site you are so obsessed with?
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  - Gwiz (profile), 23 Apr 2013 @ 1:08pm
    
    Re: Re: Not copyright. Rich guy mis-using it.
    Obviously not.
    
    Pretty apparent since he labels the female dentist as "Rich guy" right there in his comment header.
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- Anonymous Coward, 23 Apr 2013 @ 1:55pm
  
  Re: Not copyright. Rich guy mis-using it.
  Like all the other rich guys/companies misusing it, boy?
  When it becomes the typical instead of the atypical (as it has) your ramblings for pay from corporations become pathetic.
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- jackn, 23 Apr 2013 @ 2:22pm
  
  Re: Not copyright. Rich guy mis-using it.
  Why must you constantly flatter this site and Mike with you unending attention.
  
  Are you a harrasser and possibly a stalker? an online bully if you will?
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  - out_of_the_blue, 23 Apr 2013 @ 2:24pm
    
    Re: Re: Not copyright. Rich guy mis-using it.
    I just love Mike and all this site does to expose injustice on the common man.
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- Anonymous Coward, 23 Apr 2013 @ 11:10pm
  
  High court low court
  Thing is, as long as copyright exists the rich will abuse it while the anti abuse laws will be used to flog the poor if used at all.
  
  Abolishing copyright is the only way to abolish abuse of copyright
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  - Anonymous Coward, 23 Apr 2013 @ 11:12pm
    
    Re: High court low court
    It should be noted that I'm not in favor of abolishing copyright, mearly pointing out how out of the blue's viewpoints conflict with each other as is so often the case
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- DeP, 24 Apr 2013 @ 11:29am
  
  Re: Not copyright. Rich guy mis-using it.
  Is this guy actually speaking English? Looks like some newly invented words here.
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Chosen Reject (profile), 23 Apr 2013 @ 12:39pm

Well of course the dentist wasn't "just kidding". It was a pun.

No, no...not a pun. It was a palindrome.
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Anonymous Coward, 23 Apr 2013 @ 12:52pm

"This lawsuit about a toothache and a dentist's attempt to insulate herself from criticism by patients has tumed into a headache. After appealing to his dentist for pain relief, Plaintiff Robert Allen Lee, ironically, is appealing to the court for relief from his dentist."

Does this judge secretly want to become a writer?

"Defendants' hardly defensible practices"

Uh oh. When the judge is using that sort of language in your motion to dismiss, you know this case isn't going to go well.
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Anonymous Coward, 23 Apr 2013 @ 1:06pm

assign the future copyright of any review i post online to my service provider. Yes, that's what copuright was made for! Why don;t you just stop being coy and write right in the service contract: all online reviews must be positive and pre-approved by the service provider.
Man, are people ever fked!
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- Anonymous Coward, 23 Apr 2013 @ 1:13pm
  
  Re:
  IANAL. Probably still not legally enforceable. Active toothache creates considerable duress. In most cases, this duress would render the contract not valid.
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    Anonymous Coward, 23 Apr 2013 @ 1:22pm
    
    Re: Re:
    You're not a lawyer? Sounds to me like you went to law school online at the University of Angry Dipshits--just like Mike!
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    - Gwiz (profile), 23 Apr 2013 @ 1:27pm
      
      Re: Re: Re:
      LMAO.
      
      You just called someone else an angry dipshit in an angry dipshit tone of voice. WTG!
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    - Anonymous Coward, 23 Apr 2013 @ 8:54pm
      
      Re: Re: Re:
      Kindergarten drop out is sounding kindergarteny
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    - G Thompson (profile), 24 Apr 2013 @ 1:09am
      
      Re: Re: Re:
      Wow...
      
      Libertas et natale solum
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  - Anonymous Coward, 23 Apr 2013 @ 1:27pm
    
    Re: Re:
    Duress or not, this is the sort of thing that should never be in a contract. People should be free to write reviews about products and service they purchase.
    
    I'd be more willing to accept the provision if it were part of a contract that was actually negotiated by the parties, instead of one that is imposed by one side.
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  - jackn, 23 Apr 2013 @ 2:20pm
    
    Re: Re:
    Plus, what is the consideration. It seems like they are trying to make this a work-for-hire assignment, but the artist (in this case the patient), should get consideration for the work (in this case the review).
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Anonymous Coward, 23 Apr 2013 @ 2:45pm

Hmmm. Can a copyright be assigned on a work which doesn't yet exist?
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- Anonymous Coward, 23 Apr 2013 @ 5:16pm
  
  Response to: Anonymous Coward on Apr 23rd, 2013 @ 2:45pm
  Yes, it can. It creates in the assignee an equitable title to the copyright which is perfected upon the work being completed.
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Anonymous, 23 Apr 2013 @ 6:22pm

Don't dentists have more important things to do, like spread diseases and not sterilize their instruments?
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