Plaintiff Awarded Damages In Default Judgment Against Censorious Dentist Who Billed Him $110,000 For His Negative Review

from the Streisanded-into-apparent-nonexistence dept

(Former?) dentist Stacy Makhnevich utilized a shady firm's (Medical Justice) legal documents to force a patient to sign over his copyright to any future reviews of her service. When he posted negative comments about her services, she followed this up by billing him $100/day for the Yelp review he supposedly no longer controlled.

This censorious behavior resulted in two things: a class action lawsuit being brought against the dentist by Public Citizen and a severe Streisanding that saw Makhnevich's personal and professional reputation torn to shreds by internet denizens, most notably at the same site she attempted to silence.

Shortly thereafter, Makhnevich simply… disappeared. She filed a motion to dismiss the class action suit, but received only sharp criticism from the judge for her "ridiculous" arguments. That was pretty much the last anyone saw of the disgraced dentist, something that makes plaintiff Robert Allen Lee's win somewhat bittersweet.

According to the default judgement [PDF] by a U.S. District Court in NYC last week, the judge concurs, saying that the prohibition against negative criticism, along with the use of copyright claims to prevent these reviews from being seen “constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.”

The very short decision points out that Makhnevich was wrong about pretty much everything before awarding presumably uncollectable damages to Lee.

The Court declares as follows:

A. Notwithstanding the claim of defendants Stacy Makhnevich, Aster Dental, Chrysler Building Dental Association, North East PC, South East Dental Suite, Lincoln Square Dental Arts, Lincoln Square Dental Arts of Manhattan, and Chrysler Dental (collectively, "defendants") to ownership of the copyright in writings by plaintiff Robert Allen Lee about them, Robert Allen Lee's posting of public comments about defendants' services ("Lee 's Commentary") is a non-infringing fair use pursuant to Section 107 of the Copyright Act;

B. Obtaining the promise by plaintiff Robert Allen Lee in the Mutual Agreement to Maintain Privacy (the "Agreement') not to publish criticism of defendants, the Agreement's purported assignment of copyrights, and the assertion of copyright claims by defendants for the express purpose of preventing the dissemination of Lee's Commentary, constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse;

C. Robert Allen Lee's assignment and promise in the Agreement not to publish criticisms of defendants are null and void for lack of consideration;

D. Robert Allen Lee's assignment and promise in the Agreement not to publish criticisms of defendants are null and void for unconscionability;

E. The Agreement is a deceptive act or practice in violation of Section 349(a) of the New York General Business Law; and

F. Lee' s Commentary is not actionable defamation under New York common law.

Plaintiff Lee is awarded $4,766 in damages against defendants, jointly and severally, for their breach of contract, together with his costs of suit.

The other upshot of the lawsuit is that Medical Justice has ceased offering the legally-dubious forms deployed by Makhnevich, albeit in a rather begruding fashion.

"While we believe these agreements are honest, ethical, and legal, we are going to use this situation as an opportunity to retire these written agreements used since 2007," MJ CEO Jeffrey Segal told Ars on Wednesday. He claims that MJ will recommend to doctors that they stop using the agreements, and that patients will not be asked to sign any such agreements in the future.

The worst thing you can do about bad reviews is pretty much everything Makhnevich did: misuse copyright law, fire off cease-and-desist orders and bogus DMCA takedown requests, and bill unhappy customers to the tune of $110,000. Disappearing was probably a wise choice, but it does tend to result in default judgments. Lee may find it hard to collect what he's owed from the missing dentist, but the court's short but thorough dismantling of her every move should serve as a warning to future business owners who think it's wise to deploy the nuclear option when criticized.

Filed Under: copyright, dentist, free speech, gag clause, reviews, robert allen lee, stacy makhnevich
Companies: medical justice

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

from the copyright-as-censorship dept

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.

Filed Under: dmca, stacy makhnevich
Companies: medical justice

Dentist Who 'Invoiced' Patient For Negative Reviews, Getting Slammed On Yelp

from the these-things-have-a-way-of-coming-back dept

You may recall that, yesterday, we wrote about the class action lawsuit filed against dentist Stacy Makhnevich. Makhnevich used ethically and legally dubious forms from the organization Medical Justice, to demand the future copyrights on any reviews a patient might write about her. Then, she used the DMCA process to try to take down negative reviews on Yelp and DoctorBase. When that didn't work, she threatened the patient, Robert Lee, with a lawsuit, and started sending him invoices for infringement, at $100/day. None of this addressed Lee's original complaint -- that Makhnevich failed to submit the documents he needed to get reimbursed from his insurance company for an expensive procedure.

Of course, as with any typical Streisand Effect situation, all this ended up doing is leading to a hell of a lot more attention to the situation and the negative comments. But, these days, things can go even further than just driving more attention to content someone wanted disappeared. It can lead to even further backlash -- especially on sites involving reviews -- as we've seen with authors who get dinged for questionable actions. If you go take a look at Yelp's page for Stacy Makhnevich the one star reviews are flowing in... many of them calling her out for what she did. Oh, and Robert Lee's review, which kicked this whole mess off... is Yelp's "featured" review at the top of the page. Her current total review rating is at a star and a half. It used to be much, much better. Some of the reviews are entertaining. I liked this one, which notes "I heard you have to bring your lawyer with you to the dentist's office." For future reference, if you're that concerned with your online reviews, perhaps just do the best you can and respond to customer complaints promptly. Trying to whitewash complaints seems likely to backfire in big, bad way.

Filed Under: class action, copyright, dentists, dmca, doctors, reviews, stacy makhnevich
Companies: medical justice

Dentist Forced Patient To Sign Away Future Copyright On Any Online Review; Then Billed Him $100/Day For Negative Reviews

from the copyright-abuse dept

We've talked about Medical Justice a few times. This is the highly questionable outfit that gives doctors and dentists forms that these medical professionals then require patients to sign in order to get treated. The forms require the patients to pre-emptively hand over the copyright on any future reviews they might write about that medical professional. The idea is that if the doctor or dentist doesn't like the review, they can then just use the DMCA to take it down, claiming that the review infringes on their copyright. Yes, this is incredibly sleazy. This clearly has nothing to do with copyright, but rather it's a use of copyright law to try to censor criticism. There are both ethical and legal problems with this... and the legal problems are about to be discussed in court.

Public Citizen has filed a class action lawsuit against a New York dentist, Stacy Makhnevich, who not only used the Medical Justice forms, but then sent one of her patients invoices, supposedly billing him $100 per day for having posted comments about her online. As Paul Alan Levy explains:

Our individual client, Robert Lee, had a bad experience, not with Makhnevich’s dental work, but with her billing and her failure to submit the documents he needed to get reimbursed by insurance.  After his repeated efforts to get her office to do what they were supposed to do, he posted complaints on Yelp and on DoctorBase.  Makhnevich threatened to sue him over the posts, and sent DMCA takedowns, but no doubt to her surprise, not only did the patient not remove his comments, but both Yelp and DoctorBase defied the threat of infringement liability, telling Makhnevich that they regarded her agreement with the patient as illegal.  Undeterred, Makhnevich sent Lee invoices purporting to bill him $100 per day for the continued copyright infringement.  Makhnevich also hired a lawyer who sent additional threats of litigation, but rather than continue to wait to be sued, Lee has now filed suit for a judgment declaring the agreement void, an injunction preventing Makhnevich from imposing the agreement on other patients, and a notice to all Makhnevich patients informing them that they are no longer restrained by the agreement.

A few interesting things come out in the lawsuit. First, the fact that both Yelp and DoctorBase defied the DMCA takedowns. Both companies deserve kudos for that. Standing up to bogus DMCA takedowns is pretty rare these days, because the risk of getting roped into a costly lawsuit is just too high. In this case, the fact that there had been so much news about Medical Justice and it's questionable concept, and both Yelp and DoctorBase were aware of this earlier, certainly helped. Still, standing up to such threats deserves praise.

Second, the lawsuit notes that not only is this copyright abuse, but the DMCA takedown notices appear to violate HIPAA -- the federal Health Insurance Portability and Accountability Act -- which is supposed to guarantee privacy for patient info.

In September, 2011, on the letterhead of Aster Dental, a member of Dr. Makhnevich’s staff sent takedown letters under the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(3), to Yelp and to DoctorBase, asserting that Dr. Makhnevich owned the copyright in Lee’s Commentary pursuant to the Agreement. Defendants warned Yelp and DoctorBase that, if they did not remove the posts immediately, they would lose the immunity that the DMCA otherwise provides Internet Service Providers against monetary liability for copyright infringement. In violation of HIPAA, these takedown notices disclosed plaintiff’s height, weight and birth date, as well as his picture and his home address

The lawsuit also makes the claim that these comments, even if the copyright on them has been assigned, would still be protected as fair use. But, more importantly, it argues that these agreements in the first place constitute "copyright misuse" noting that the agreements:

constitute unclean hands and, with respect to such purported acquisition and assertion, constitute copyright misuse in light of the means by which defendants purportedly acquire the copyrights and because the purpose of such acquisition and assertion of copyright is to suppress truthful commentary concerning defendants and matters of public concern.

No matter what, this should be an interesting lawsuit to follow. As Levy explains, beyond the legal arguments, there is an important public policy aspect to this lawsuit:

The purpose of copyright law is to encourage creative expression by providing a temporary monopoly (sadly, less and less temporary) that enables those whose expression is marketable to reap financial rewards for their work. At the same time, copyright law avoids giving any monopoly on facts or ideas. Agreements like the one at stake in the Makhnevich case turn copyright law on its head by taking advantage of the fact that, as a practical matter, ideas and facts are articulated through copyrightable expression; hence anything that a patient writes about a doctor or dentist is likely to have sufficient originality to be copyrighted. The Medical Injustice agreements allow professionals who use them to suppress the underlying opinions and facts, not to reap financial rewards from the expression and not to encourage further creativity. This is a misuse of copyright law and in our view it needs to be stopped.

However, from a future policy perspective, it appears that this lawsuit has already been a win. Within a day of the lawsuit being filed, Medical Justice has announced that it's retiring the agreement... and that it probably should have earlier. It also claims that it's telling doctors to stop using them. We'll see if that actually happens... and if anyone else jumps into the fray instead.

Filed Under: class action, copyright, dentists, dmca, doctors, reviews, stacy makhnevich
Companies: medical justice