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SAN FRANCISCO--Two Northern California law schools have created a website to counter what its creators contend is an attempt by physicians to use copyright law to restrict patients' free speech rights to review medical care.
The University of California Berkeley Law School's Samuelson Law, Technology & Public Policy Clinic and Santa Clara University's High Tech Law Institute created the website doctoredreviews.com to show how doctors use contracts to prohibit patients from posting reviews on websites such as Yelp and Angie's List.
The law schools charge that Medical Justice, a company trying to restrict online patient reviews, markets “mutual agreements’’ in which patients assign intellectual property rights to doctors who then can move under the Digital Millennium Copyright Act to have websites take down posts as infringing content. The idea, according to the Medical Justice website, is protecting doctors' reputations and “[c]reating a vaccine for libel.’’
Doctors have a number of ways to respond to unfair patient reviews, including private outreach to unhappy patients, generalized responses about the doctor's practices, getting the patient's permission to respond, and filing defamation lawsuits in the most egregious cases, Eric Goldman, director of Santa Clara University's High Tech Law Institute and a former general counsel to Epinions.com, said April 18.
“However, not every critical patient review needs a public response from the doctor. Consumers can and do ignore outlier reviews,’’ Goldman said in an e-mail to BNA. “Finally, the very best 'response’ is for doctors to proactively encourage existing patients to post reviews; this will create a critical mass of reviews for prospective patients to consult.’’
But Shane Stadler, marketing vice president for Medical Justice, said doctors are legally prohibited from discussing patients' medical conditions and thus are constrained from responding to posts.
“We're not talking about, 'Dr. Smith was rude to me,’ 'Dr. Smith used words I didn't understand.’ 'I felt rushed.’ That's all valid feedback,’’ Stadler said April 18. “The stuff that we're talking about is 'Hitler should have burned this scum doctor.’ And that was an actual post.’’
Matt Zimmerman, an attorney with the Electronic Frontier Foundation, countered that “no one is even pretending this is about copyright.’’ Medical Justice is using a “trumped up copyright procedure to effectively control’’ doctors' reputations, Zimmerman told BNA.
And even comments such as “Hitler should have burned this scum doctor’’ are protected speech, Zimmerman said April 18.
Jason Schultz, co-director of Berkeley Law Samuelson Law Clinic, said the “only justification for doing this is the doctor is afraid of losing business.’’ If posts on websites are defamation or false, the individual can sue the poster for damages, attorneys' fees and “bankrupt them. You have a remedy. Go use it,’’ Schultz said April 18.
Further, there is a question whether Medical Justice is giving legal advice to doctors and thereby opening physicians to potential liability for sending false take-down notices, Schultz told BNA.
Greensboro, N.C.-based Medical Justice, which describes itself as a membership-based organization “dedicated to protecting physicians from meritless litigation,’’ offers “anti-defamation packages’’ that include drafted contracts for members' patients to sign.
The contracts give doctors as IP owners the right to have comments about them removed from websites without running afoul of the safe harbor created under Section 230 of the Communications Decency Act.
Under Section 230, no provider or interactive computer service user shall be treated as a publisher of information provided by another. But Section 230 does not immunize a third-party provider from infringement.
The DMCA, 17 U.S.C. § 512, spells out that IP holders can request the comments be taken down as infringing.
“All we're saying is let's be reasonable,’’ said Stadler. “You can't yell 'fire’ in crowded in a movie theater, nor should you be able to say 'Hitler should have burned this scum doctor.’’’
Stadler said that he was unaware of any situation where a doctor has sued a patient, but that doctors have approached websites to take down postings.
Hank Greely, Stanford Law professor and director of the Center for Law and the Biosciences, said it was a “breathtaking degree of arrogance” to attempt to prevent a customer from criticizing the services received.
“ I don't think someone acting in the marketplace, operating as a professional, and seeking clients, patients, customers should be able to say, 'you can't talk about me,’’’ Greely said April 18.
The California Supreme Court held “decades ago’’ that doctors cannot make a patient entering a relationship with them sign an agreement stating “You cannot sue for malpractice. That's void. This, it seems is even a broader reach. You can't even criticize them on the Internet,’’ Greely told BNA. “It's clever but it really shouldn't work.’’
A representative for the California Medical Association could not be reached for comment.
The law schools' doctoredreviews.com website provides copies of the Medical Justice contracts, suggestions for how patients should respond to being asked to sign the documents, information for online review sites about why they may not have to honor the requests, and information for doctors on why the contracts may not be in their best interest.
Goldman said the question of whether the contracts violate anti-SLAPP (strategic lawsuits against public participation) provisions is not even reached “because the doctors send 512(c)(3) takedown notices to doctor review websites, who may honor those takedown notices without any judicial proceedings at all.’’
Zimmerman said he would welcome a legal challenge to the contract terms. “If there was actually a suit that challenged the viability of these contracts, I think you would see a lot of attorneys lined up on the defense side to take this,’’ Zimmerman said.
“I think what you see is a lot of saber rattling and a very careful threatened use of these provisions without any actual lawsuits filed because the down side is so great,’’ Zimmerman said. “I'd like have a court saying it is not a viable contract provision, not an appropriate use of takedown process. And if you end up with that, the result then is Medical Justice's entire business model collapses.’’
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