Court Hands Loss To Doctor Who Sued Over Blog Posts Criticizing His Questionable Alzheimer's Treatments

from the woefully-inept-trademark-thuggery dept

Another bullshit lawsuit seeking to suppress critical speech has resulted in a loss for the plaintiff.

Last year, Dr. Edward Tobinick sued Yale physician Steven Novella over a blog post Novella had written that questioned and criticized Tobinick's off-label use of immune-suppressing drugs to treat… Alzheimer's patients. Here's a short quote from the post at the center of the lawsuit:

The claims of Tobinick, however, are not in the gray area—they are leaps and bounds ahead of the evidence. Further, the conditions he claims to treat are not clearly immune-mediated diseases. It’s one thing to use an immune-suppressing drug to treat a disease that is known to be caused by immune activity, and probably the kind of immune activity suppressed by the drug.

Tobinick, however, is claiming that a wide range of neurological conditions not known to be immune mediated are treated by a specific immunosuppressant.

Tobinick first demanded Novella take the post down. When Novella refused, Tobinick sued him and Yale University. Tobinick didn't allege defamation, as one would expect. (At least, not originally, allegations of libel were added to an amended complaint.) Instead, Tobinick claimed Novella's post was "false advertising" and actionable under trademark law.

There are very few cases where plaintiffs have been successful misusing intellectual property laws to shut down critics. This one is no exception. Back in June, the court granted Novella's anti-SLAPP motion, striking Tobinick's motions for unfair competition, trade libel and libel per se. All that was left unaddressed was Tobinick's Lanham Act claim.

Now, the court has handed a victory to Novella, granting his motion for summary judgment and ordering the case closed. The court finds no merit to Tobinick's argument that Novella's critical blog posts were "commercial speech" and therefore actionable under the Lanham Act.

[T]he Court finds that the speech at issue here—that is, the First and Second Articles, published on www.sciencebasedmedicine.org —is not commercial speech. The Articles proposed no commercial transaction, and consequently do not fall within the “core notion” of protected speech. See Bolger, 463 U.S. at 66. Furthermore, the Articles do not fall within the scope of the definition expounded in Central Hudson, “expression related solely to the economic interests of the speaker and its audience.” 447 U.S. at 561. Both articles clearly state their intent to raise public awareness about issues pertaining to Plaintiffs’ treatments.

Thus, the First and Second Articles can only potentially qualify as commercial speech under Bolger. Yet the Articles differ from the pamphlets at issue in Bolger in a number of ways. First, the Articles are not conceded to be advertisements. Second, the only products referenced in the First Article are Plaintiffs’ treatments. To the extent that the Second Article mentions Defendant Novella’s practice, it is in direct response to the instant litigation as opposed to an independent plug for that practice.

The main thrust of Tobinick's Lanham Act argument was that because Novella made money indirectly from the website, it was commercial speech. The court doesn't care for this argument either, and points out that even certain commercial speech is still protected under the First Amendment and not subject to Lanham Act claims.

The third and final factor from Bolger, whether there was an “economic motivation” for the speech, is the primary basis for Plaintiffs’ opposition to summary judgment. Essentially, Plaintiffs contend that the Articles are commercial speech because SGU Productions, a for-profit company controlled by Defendant Novella, earns money by selling advertisements on its website (skepticsguide.net), advertisements in a podcast, memberships, and goods such as t-shirts…

Thus, even if Defendant Novella directly earns money from an organization sponsoring or producing the speech, this alone would not make the speech commercial. Furthermore, the specific evidence elicited in this case regarding SGU does not point to a strong economic motivation for the speech. Although Plaintiffs argue that “[t]he flow of money to Novella . . . is significant, as [Jay] Novella testified to over $200,000 last year,” Jay Novella also testified that, despite this profit, SGU “made no profit after expenses” because “we reinvest the vast majority of the money back into the company when we have a positive cash flow.”

The Court therefore finds that Defendant Novella’s speech in the First and Second Articles does not qualify as commercial speech, such that the Articles can form the basis of a Lanham Act claim.

Once again, we see a plaintiff learning the hard (and expensive) way that speech that may harm your commercial interests isn't automatically a.) defamatory or b.) a violation of intellectual property laws. Of course, many litigants already know this. They're apparently just hoping the courts don't.

With the granting of the anti-SLAPP motion, it looks like Tobinick will be paying the costs of defending against his bogus lawsuit. But it's not as though people looking to censor critics will be any less willing to engage in Hail Mary-esque lawsuits. Many defendants simply aren't willing to put themselves through the financial and mental pain and suffering that accompanies litigation. Because of this, this string of IP law-abusing legal failures won't prevent similarly bogus attempts from being made in the future.

Filed Under: alzheimer's, anti-slapp, commercial speech, criticism, edward tobinick, free speech, lanham act, slapp, steven novella

Press, University Say Study Shows Link Between Gaming And Alzheimer's; Spoiler: No It Doesn't

from the forget-it dept

If I've learned any single thing covering technology news it's that you can blame absolutely anything on video games. Mass violence? Games. Failure at professional sports? Pssh, games, yo. Love life not as spicy as you might like? Those games, those games. But a study that supposedly claims a link between video games and Alzheimer's Disease? Come on.

“Call of Duty increases risk of Alzheimer’s disease”, said the Telegraph. “Video game link to psychiatric disorders suggested by study”, reported the Guardian. The Daily Mail posed the problem as a question, “Could video games increase your risk of Alzheimer’s?”, reminding us that whenever a news headline asks a question, the answer is no.

We know that when science news is hyped, most of the hype is already present in the press releases issued by universities. This case is no exception - the press release was issued by the Douglas Mental Health University Institute, and unsurprisingly it focuses almost entirely on the tenuous link to Alzheimer’s disease.

Tenuous is being exceptionally kind in this case. The study in question, produced in the Proceedings of the Royal Society B, barely focused on any link between gaming and the disease, in fact. Instead, the team of Canadian researchers were simply studying the difference in brain-wave activity with groups of gamers and non-gamers. They noticed specifically a significant difference in the activity of one type of brain-wave with gamers, N2PC, which can have an effect on attention spans. So, how did we get from that to a link to Alzheimer's? Were there clinical tests done? Was the team of researchers even in any way focused on the most famous form of dementia?

No. Instead, the article describes the methodology for reaching the conclusion of a link thusly:

1. The type of learning shown by the gamers has been associated in previous studies with increased use of a brain region called the caudate nucleus

2. Increased use of the caudate nucleus can be associated with reduced volume of the hippocampus

3. Reduced volume of the hippocampus can be associated with increased risk of Alzheimer’s disease

4. Therefore (take a deep breath) video gaming could increase risk of Alzheimer’s disease

That's three, three associations of mere correlation at best, with not even a shred of evidence for causality. And from that we get not only press reports of a link, which I can understand because the major media groups in Western culture have proven to be more interested in sensationalism than stuff that actually exists, but university institutions pushing out press releases to feed the hounds? That's not only wrong, it's borderline character-assassination on the wider gaming industry. Sadly, even some on the research team have gotten in on the act, likely in the hopes of generating press coverage of the study.

The press release also includes a statement from the lead researcher that is a clear exaggeration. Dr Gregory West is quoted as saying “we also found that gamers rely on the caudate nucleus to a greater degree than non-gamers”. Actually they didn’t find this at all, because their study didn’t measure activity in the caudate nucleus. Instead it measured a type of behaviour that previous studies have associated with activity in the caudate nucleus. There is a world of difference between these two, and readers would do well to take these latest claims with a generous helping of salt.

No, man! Salt intake is associated with water retention, which is associated with bloating, and weight-gain can be a factor in spousal infedelity, therefore salt leads to my wife cheating on me if I take these grains you prescribe!

Filed Under: alzheimer's, dementia, exaggerations, studies, video games

And Of Course: 'Surprising' Openness And Sharing Of Data Leads To Advancements In Alzheimer's Research

from the well,-duh dept

I think everyone who reads Techdirt -- including my parents -- sent over this story today. The NY Times has an article about the rapid advancements in Alzheimer's research after researchers agreed to immediately open up any data:

The key to the Alzheimer’s project was an agreement as ambitious as its goal: not just to raise money, not just to do research on a vast scale, but also to share all the data, making every single finding public immediately, available to anyone with a computer anywhere in the world.

No one would own the data. No one could submit patent applications, though private companies would ultimately profit from any drugs or imaging tests developed as a result of the effort.

This should hardly be surprising -- except to those who insist that without the possibility of patents no research would be done on curing diseases. In fact, the only thing that should be surprising about this is the fact that anyone is surprised by it, or that anyone continues to insist patents are necessary in this kind of research. We've already seen how large groups of scientists sharing data leads to faster advancement in those fields, and how data that is locked up leads to slower advancement in research.

Thankfully, it appears that some folks are getting the right idea about this, and have set up a similar deal for research into Parkinson's disease, and perhaps it can finally lead to a rethinking of patenting federally funded drug research and (dare we hope?) a rolling back of the disastrous Bayh-Dole Act, which resulted in this desire of universities to lock up basic research.

But the key results here highlight the same point many of us have made for years: openness and sharing of the underlying data allows overall advancement in the space to move at a faster rate (prior to this openness, research in the area had apparently stalled out a bit). And, even with the open sharing of data and the lack of patents, there are still plenty of incentives to do the research, because they know that there is plenty of money to be made in selling the actual treatments that come out of this.

Filed Under: alzheimer's, data, openness, patents, research, sharing