Physicians understandably prefer to avoid defamatory remarks about them popping up on the internet (don’t we all?), but that doesn’t justify the relatively new practice of some doctors controlling online patient reviews by making their patients sign over their “copyright” in all future reviews, true or not. The New York Times recently published an interesting article about strategic lawsuits against public participation (SLAPPs), which mentioned in passing efforts of the for-profit company Medical Justice to keep patients from posting unfavorable physician reviews online. Even more interesting than what you’ll find in the linked article was its original version, as posted last Monday:
“The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.”
The article has since been altered without explanation to allude to “control” instead of copyright, but Medical Justice CEO Jeffrey Segal’s prior interviews seem to confirm that Medical Justice provides doctors with a form contract they can use to have patients purportedly assign their copyrights in future online postings over to the doctor. As Dr. Segal reasons: “Waivers assign copyright to the physician, so if the physician has asked all of her patients to sign, she can claim ownership of any anonymous review of her practice and ask that it be removed.” Even moving past the logical fallacy in this argument (owning copyright over current patients’ writings doesn’t give the doctor copyright over writings authored by non-patients or past patients), this contractual tactic is particularly troubling in its attempt to use copyright as an end-run around the limits of defamation law. Medical Justice, by the way, openly acknowledges that its intellectual property advice is intended to fight defamation, not infringement as such.
Unfortunately, we cannot examine the actual agreement without purchasing “Anti-Defamation Protection” from Medical Justice ($495 for the first year). As such, it is unclear whether these doctor-patient agreements entirely prohibit the patient from discussing the doctor online without the doctor’s permission, claim copyright ownership over any resulting posts, or both.
But let’s take Dr. Segal’s word for it, and assume that these waivers work by asserting intellectual property ownership over future reviews. What exactly does this mean? The agreements enable doctors, except when required by law in emergency circumstances, to condition treatment upon the patient giving the doctor copyright ownership over all future online writings that mention the doctor or her practice. Then, reasons Medical Justice, if a doctor sees an online comment about herself that she doesn’t like, rather than needing to prove a defamation claim, she can assert copyright infringement and demand that the review be removed.
Of course, contract law requires that the patient receive something in return to make this a binding agreement. Medical Justice insists that the doctor’s consideration for the assigned copyrights is not the medical treatment itself, but rather enhanced patient privacy. However, a promise to do something that one is legally obligated to do anyway doesn’t qualify as consideration. Exactly what patient information doctors can legally distribute that they would be willing to keep to themselves, for a price, is unclear. Contract law also protects parties from unconscionable provisions; this could come into play here on two levels. First, doctors could present this agreement on a “take it or leave it” basis to patients when they arrive seeking medical care, a.k.a. at the exact moment when patients have the least bargaining power and have little meaningful choice over the terms they’re consenting to. Second, it also seems the terms unreasonably favor doctor over patient (trading intellectual property for doctor-patient privacy?) and could unfairly surprise the patient when she later realizes that signing over her copyright essentially precludes her from speaking openly about a matter of public interest.
Jason Schultz helpfully flags some of the medical ethics issues raised by these contracts, but another troubling aspect of these agreements is their use of copyright law to censor the unfavorable speech of others.
Asserting copyright ownership over future physician ratings raises a number of basic copyright problems. First, it is unclear whether a person can even assign copyright ownership in a work that has not yet been created, outside of a work-made-for-hire relationship. Second, it seems that many of the ratings that upset Medical Justice cannot be copyrighted at all. A doctor using the Medical Justice agreement to censor an unfavorable review is really fighting against the idea in the review, not the expression that embodies it. This is a dichotomy long established in copyright law: copyright protects the expression of ideas, not the ideas themselves. If the works at issue can’t be protected under copyright law, then nobody owns the copyright to them—not the patient, and not any assignee to whom she purportedly transfers the copyright. The ratings on many of the sites that Medical Justice dislikes (ratemds.com, vitals.com, drscore.com, doctorscorecard.com) include both space for written comments and numerical rating systems, while others (healthgrades.com, revolutionhealth.com) only collect numerical information, with no space for users to write any comments about the doctor. The numerical ratings pretty clearly have no original creativity element in them that would allow any person to claim copyright over them. Even the brief written comments likely include many examples that lack sufficient originality (ex. “Dr. Smith was mean.”) to be protected under copyright law.
Even if the rating could be protected under copyright and the doctor somehow obtained legal ownership of the copyright, it seems fair use would still prevent doctors from demanding take-downs. The ratings are used for criticism, and while they may affect the doctor’s business, they do not hurt the market for the rating itself. And, as discussed above, many of these ratings are barely, if at all, creative enough to be protected by copyright.
Using these “Anti-Defamation” agreements to assert purported intellectual property rights not only opens the door to the DMCA notice-and-takedown regime, but removes the case entirely from the auspices of the CDA, where it belongs. Section 230 of the CDA protects sites from liability for user-generated content, except in instances of criminal liability or intellectual property infringement. Medical Justice is clearly not a fan of the policy judgments embodied in Section 230 (here Medical Justice refers to the well-established statute as “an arcane nuance of cyberlaw”). Nevertheless, Congress has already decided that imposing liability on websites for the behavior of their users would only inhibit the development of online services. These agreements twist intellectual property law to subvert congressional intent, which is particularly problematic when Congress has already established legal mechanisms to handle defamation claims.
The ramifications of contorting intellectual property law to serve defamation complaints become apparent when we think about the consequences of giving doctors complete ownership over reviews about themselves. If her rights over the reviews are based in copyright law, the doctor could remove postings not to her liking even if they’re true (which is anathema to defamation law), and then threaten any copyright “infringers” with statutory damages, which could fall anywhere between $750 and $150,000 per rating.
Basically, this strategy uses copyright to prevent potential defamation. But copyright law was authorized under the Constitution to promote knowledge and the useful arts, not to prevent the spread of knowledge or police decorum in public discussions. It is not meant to make an end-run around established defamation law.
When confronted with potentially defamatory statements, Medical Justice members might best be advised to take a dose of their own medicine: if you have a legitimate defamation complaint, the courts will hear it. That’s what they’re there for. No one denies that litigation can require a lot of time and resources. The answer, however, is not to manipulate copyright law to maneuver around defamation law, stifling free public discussion in the process. Medical Justice claims these doctor-patient agreements will combat anonymous ratings from non-patients, but what they really do is censor those who have the most legitimate, valuable thoughts to share: the patients.