by Christopher Harbin
Marc was recently quoted in the paper of record regarding Slapp suits.
One tidbit of the article stood out as odd to me:
“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.”
I don’t condone this practice, but would the doctors want an assignment of copyright rather than a non-disclosure agreement? Wouldn’t fair use basically eviscerate any control the doctor or practice might have? Also, what about non-copyrightable statements. For example, “My doctor cut off the wrong leg” and “My doctor is a crook” contain no protectable expression, so I’m pretty sure Medical Justice is giving out crummy advice. How is their mission of “protecting doctors from meritless malpractice suits” advanced by silencing critics anyways?
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It’s actually pretty clever (and devious). With the agreement in hand, they can send a DMCA takedown notice to the forum site. They then rely on the fact that most such forums will immediately comply with the takedown notice, and most reviewers won’t be savvy or motivated enough to file a counter-notice or make a fair use claim.
I don’t know about that. Seems to me, if I’m bitching about a doctor on a website and I get notice that the host has taken down a post under the DMCA, I’m going to raise holy hell. Whether or not I send a counter-notice, I’m likely to post the same or similar comments, and comments about the takedown, in as many places as I can. The doc can send notice after notice, but that’s got to be a drain on his time and resources, too.
People who bitch about their doctor online are the same type of people who will counternotice. I’d love to see one of these go to trial. I also wonder if sending takedown notices where you know there is no copyrightable expression opens you open to DMCA abuse claims. In my view, it should.
What if the patient simply sets up their own web site or blog such as drsmithsucks.com or drsmithsucksblog? The “agreement” seems to stop the web site but not a blog. Plus, if I own the web site or the blog then there isn’t a third party to “take down” the offensive materials. I am not very knowledgeable about DMCA but I wonder if it could be used against personal / individual web sites. I have a personal web site (separate from my business web site) and many years ago I had a problem with a Whirlpool ice maker. After 17 service calls in the first year I put a new page on my web site called whirlpoolsucks. Eventually it got a lot of hits and eventually Whirlpool ceased repairing the ice maker and gave me back my money (including the money for the extended warranty.