Dentist Misused Copyright Law to Block Bad Yelp Reviews
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UPDATED: Mar 17, 2015
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A New York federal judge ruled that a dentist had misused copyright law to squelch negative Yelp reviews of her practice.
As reported by Consumerist, Dentist Stacy Makhnevich forced her patients to sign a contract that made her the copyright owner of any reviews they wrote about her. She would threaten them with copyright infringement if they posted the negative reviews online.
The contract also prohibited patients from writing negative reviews or criticizing the practice in any manner.
When negative reviews were posted, the dentist reportedly sent take-down notices to the websites using the provisions of the Digital Millennium Copyright Act.
The idea for using copyright law to fight negative online feedback apparently originated with an organization called Medical Justice, which says it helps medical professionals fight frivolous malpractice suits and “Internet defamation.”
The consumer advocacy group Public Citizen and attorneys at a major national law firm sued Makhnevich in 2011, bringing a class action case on behalf of her patients.
The judge found that the so-called copyright assignments were not only unenforceable but constituted a misuse of copyright law:
Obtaining the promise … 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 [a patient]’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.
The judge also found that, even if the dentist did own some intellectual property right in the reviews, posting them online would be permitted under the copyright doctrine of fair use.
The judge awarded the lead plaintiff in the case $4,776 in damages, plus his costs. The amount reflects the amount that the patient was required to pay out of his pocket after the dentist refused to submit his claim to his dental insurer.
This refusal is what led the patient to post several negative reviews of the dentist on Yelp and other consumer review websites.
However, it is unclear if that patient, or any of the other plaintiffs, will ever recover.
The dentist apparently stopped participating in her own defense in 2013. She also closed her practice and may have left the country. Her lawyers withdrew from the case, and the court’s decision was entered by default.
Copyright misuse is a defense to copyright infringement. Defendants invoking the defense argue that the copyright holder has engaged in abusive or improper conduct with respect to the copyright that bars the copyright holder from seeing an equitable remedy for infringement.
For example, the copyright misuse doctrine forbids copyright owners from trying to extend the duration of their rights beyond the term provided by law.
Misuse can also involve anticompetitive activity that can run afoul of antitrust law.
If you have questions about copyright law, copyright misuse, attempts to silence consumer feedback, or other legal issues, you may wish to consult an attorney in your area.