by Paul Alan Levy
Yesterday we filed a class action complaint on behalf of the patients of a New York dentist, Stacy Makhnevich, over a form agreement that she imposes on all new patients to try to suppress any online comments on her work that she finds disagreeable. In the form, Makhnevich promises not to evade HIPAA’s patient privacy protection in return for patients’ commitment not to disparage her, not to post any comments about her publicly; if the patient writes anything about the dentist, the patient assigns the copyright in those comments to Makhnevich. Relying on the form, Makhnevich sent one of her patients invoices purporting to bill him a daily hundred-dollar fine for having posted comments about her on Internet review web sites.
The copyright assignment aspect of the agreement is especially dastardly. It is intended to enable the dentist to send a DMCA takedown notice to the host of any web site where the criticism is posted. Because the DMCA protects site hosts from liability for copyright infringement, but only if they act expeditiously to remove infringing material once they receive notice of its presence on their servers, hosts generally respond like Pavlov’s dog to such notices. In theory, copyright could be asserted regardless of whether a comment is true or false, and regardless of whether it is an opinion that is constitutionally protected from libel claims; copyright can also be used as a basis for seeking awards of statutory damages even if there are no real damages.
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.
The complaint spells out the legal theories on which we will rely to void the agreement, but here I want to emphasize the policy reasons why we decided to take this case. The form agreement that Makhnevich imposes on her clients was developed by a North Carolina based company calling itself “Medical Justice,” which markets the form to doctors and dentists as a way to insulate themselves from fair criticism through artificial means instead of by providing superior medical care. “Medical Injustice” is a more apt name for this company’s products. After all, no medical professional objects to being praised, and inspection of Yelp’s page on Makhnevich reveals that she is the subject of a number of complimentary posts. There is no reason to believe that Makhnevich has asserted copyright to get them removed. Indeed, many of the comments read as if they were written at the behest of the dentist; some read as if they were sent to the dentist rather than being posted directly on Yelp. By suppressing one side of the story, medical professionals who use these agreements create a distorted picture that prevents consumers from making an informed decision about which provider they should use. Indeed, suppression of criticism is unfair to other doctors and dentists whose superior qualities make it unnecessary for them to use such contracts.
The abusive invocation of copyright law as part of this strategy also drew us to represent Lee. Much of our Internet free speech practice has been directed at intellectual property law theories that get just a bit too big for their britches. This is such a case.
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.
Not to deflect responsibility from Makhnevich, whose behavior toward Lee has been reprehensible, but the real villain of this piece is the Medical Injustice company. We assume that Medical Injustice will step up to defend the contract that it has been marketing to its customers so that we can have a well-litigated determination of its validity.
The excellent “Doctored Reviews” web site explains in detail why these efforts are bad public policy. More information is in the complaint about Medical Justice that the Center for Democracy and Technology filed yesterday with the Federal Trade Commission.
Less than a day after we filed the lawsuit, Medical Justice started telling reporters that it is "retiring" the agreement over which Lee has sued Makhnevich, apparently in reaction to the litigation. The story was first broken by Timothy Lee on Arstechnica — poetic justice, perhaps, because it was Timothy Lee whom Robert Lee contacted after reading Timothy Lee's previous Arstechnica article about Philadelphia dentist Kenneth Cirka using the same contract; Timothy Lee suggested he contact me for help. (The two Lee's are not related). A later story reports that Medical Justice went further, saying "We probably should have retired the agreement earlier, but today’s the day we did it.”
It is gratifying to have had this effect. It remains to ensure that Makhnevich and other dentists stop imposing the agreement on new patients, and notify all of their existing patients that they are revoking the obligations purportedly imposed by the agreements.