

Doctors use copyright assignment in patient contract to stifle bad reviews - grellas
https://www.eff.org/deeplinks/2011/05/medical-justice-stifling-speech-patients-touch

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anigbrowl
This sounds like an excellent deal for patients. I mean, just look at this
contract:
[http://doctoredreviews.files.wordpress.com/2011/02/piedmont....](http://doctoredreviews.files.wordpress.com/2011/02/piedmont.pdf)

 _Both Physician and Patient will work to prevent the publishing or airing of
commentary about the other party from being accessed via Internet, blogs, or
other electronic, print, or broadcast media without prior written consent._

So, if Greg Gossip starts blogging about Pete Patient, who has recently signed
such a contract, it would appear to be up to Dan Doctor to put a halt to
Gossip's careless commentary, or indeed any public commentary about Patient
whatsoever. That looks like a minimum of 3 years' worth of reputation
management services, and comes without any restrictions on judicial forum or
dispute resolution in the event of any disagreement about the issuer's failure
to perform.

All I have to do is keep my own trap shut, and I get my very own Internet
White Knight/PR agent? SIGN ME UP.

~~~
Pinckney
On the other hand, what constitutes "working to prevent the publishing or
airing of commentary" may well be fairly minimal. I can imagine a response of
"we wrote to the publisher and asked them to not publish anything about you
again." I certainly would be wary of any contract with a PR agent which
imposed so little in the way of concrete obligations. Even if you are able to
enforce this condition so as to require serious effort by the physician, they
will be able to enforce a similarly burdensome condition on you in
retaliation.

~~~
anigbrowl
Surely you jest - this is a premium legal product!

<https://www.medicaljustice.com/web-defamation-purch1.aspx>

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michael_miller
One thing worth noting: Doctors aren't able to respond to reviews at all. If a
patient posts a completely baseless, factually untrue review of a doctor, the
doctor cannot say anything due to privacy laws regarding the patient. This is
in comparison to local businesses on a site like Yelp, where a business is
allowed to talk about a customer's situation if the customer posts something
defamatory. The doctor's only recourse in such situations is to sue the
patient, something which is a) expensive b) time consuming and b) generates
bad publicity. Not saying that patients should be forced to sign such
agreements, but it's worth noting that the playing field is not level.

~~~
dr_
That is not entirely true. HIPAA rules pertain to individually identifiable
health information - one must be able to use the information and identify the
person it is connected to. Online reviews are typically anonymous in nature,
and the average person reading them would likely not know the actual identity
of the individual by the person writing it or the physicians response.

~~~
michael_miller
But what is 'personally identifiable'? Say a patient had a complaint about the
cost of a visit, and stormed out of the office saying 'screw you' in the
waiting room, and the review noted this. Other patients who were in the
waiting room would likely be able to identify the patient. Would a doctor
responding to the (anonymous) complaint, noting details about a patient's
illness constitute personally identifiable information?

It's not easy from a doctor's perspective to identify such situations, and
it's a very sticky area. Given that it's a sticky area, do you think any
doctor would risk crossing the line? There are large legal risks involved
here.

------
e40
This is pretty messed up. I hope this gets tested in court.

~~~
msredmond
Agree on the messed up, but I'm not so sure about the hoping it gets tested --
it could go the other way.

What's really insidious about this (obvious -- but I have to rant) is that the
general public really doesn't understand copyright, and if this signing over
of full copyright (vs. partial -- right to sue -- overturned in that recent
righthaven) is held up, this could become standard practice for all doctors
and even other services. I know I'd never sign one of these, but I'm betting
most people who aren't aware will just sign it away and won't even think about
it.

Any copyright lawyers out there who can talk about any kind of precedents with
this that might apply? (BTW: Seems like the EFF site is currently down? Read
part of the article and now that I'm going back site won't load)

~~~
jerf
IANAL, but I've spent some time on these topics, and in the end the only thing
that matters is the result of some court case. But non-authoritatively:

It seems to me that if you were willing to go to court and defend yourself,
you'd have a very strong case that posting your review is covered under fair
use. Of the four factors of fair use testing [1] (which is to say, I'm talking
about _real_ fair use and not the nebulous Internet "I can do whatever I want
with whatever I want if I just say the magical words 'Fair Use'" version), the
purpose of the use and nature of the work are probably solidly on your side,
and there is definitely no damage to the market value of the work (bearing in
mind that refers to the value of the _review itself_ , not any effect it might
have on the doctor's practice), to the extent that I can say "definitely"
without a legal ruling. The problematic case is that you'd be posting the
totality of the work in question but I suspect it would not be hard to find a
judge that would still agree that your First Amendment rights overrule that
concern, especially given that we're talking about a commercially effectively-
worthless work and it's not very large.

I'm not sure fully owning the copyright is really enough to prevent people
from posting a review. I also would imagine a strong case could be made for
even going back behind the standard 4 fair use factors and returning to the
reason they were created in the first place, which is that while the
Constitution grants Congress the right to write laws about copyright, free
speech is in the First Amendment and where there are conflicts, the amendment
wins, at least in theory. The fair use tests are intended to harmonize the
two. Use of copyright as a speech restraint is a fundamental perversion of the
whole system, not just morally (which doesn't really matter to this analysis)
but _legally_.

I speak solely on the matter of copyright assignment; if the contract contains
other non-copyright restrictions on posting reviews I have no opinion at all,
even if I could see them. I am also not addressing the possible ways in which
this could be considered an invalid contract clause in general, such as [2].

[1]:
[http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/...](http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html)

[2]: <http://en.wikipedia.org/wiki/Unconscionability>

~~~
msredmond
Thank you for posting this -- very informative!

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mattm
Yeah, I saw this on the Canadian CBC National news last night. The company
must obviously be in a PR push right now.

If a doctor ever asked me to sign something saying to keep my opinions to
myself, I would simply not use that doctor. If they were good, they shouldn't
worry about what people will say about them.

~~~
kwis
If I need medical care and that clause is paragraph 11 in the small print on
the back of the patient check-in form, it's pretty doubtful I'll even notice
that I agreed to it.

I'd love to see an example of how this gets used by doctors in the wild, to
make it easier for me to protect myself against such absurdity.

That said, if my PCP asked and I had pressing medical concerns, I'd despise
making the choice of 'free speech' versus 'need medical care', but I'd
certainly choose the medical care.

~~~
yardie
Contracts aren't enforceable under duress or coercion. If you have pressing
medical needs you aren't in the mental state to agree to anything. Practically
any lawyer can get an agreement like that tossed in a minute.

This is why pre-nups become unenforceable once someone gives an ultimatum (ie.
Sign this prenup or I won't marry you) and why both parties will have lawyers.

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forkrulassail
Heard about this last year at a Defcon panel. Some doctor doing 'hugging
therapy' for children that kept getting people's reviews and forum posts
removed with DMCA

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logjam
I'm a doc. I have no idea of the legality of such "contracts", but it doesn't
matter - such a practice is completely unethical.

Nor is it going to help a physician when a patient makes a complaint to your
medical licensing board.

If you're doing your job as a physician you aren't a "provider" to "consumers"
- you are hopefully a professional working in the best interests of a patient
or population of patients _regardless of your own personal interests_ \- this
horseshit obviously has nothing whatsoever to do with that goal.

~~~
tomjen3
Does complaints to medical board actually get a fair hearing? I imagine it
would be a little like complaining about the police to the local sheriff.

~~~
niekmaas
I'm a doc from The Netherlands so can only comment on our system. Here when
you file a complaint it will be sent to a local commission first. This
commission consisting of doctors will look at the viability of your complaint.
This commission consists of doctors working in the same field as the doctor
whom possibly did something wrong but cannot have close relations to the doc
being investigated. If they see a valid case they will send it to a medical
court consisting of doctors (3) and legal professions (2) who will judge the
case.

So if a way it is like 'complaining about the police to the local sheriff'.
However all commissions consist of multiple people from different hospitals. I
don't think it's a 100% fail-proof system but by having MDs look at the case
first a lot of cases that will never ever lead to a penalty will be filtered
out.

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rprasad
Ah, the EFF. Self-proclaimed defender of copyright, yet completely clueless
when it comes to contractural rights...

The post refers to a non-disclosure agreement, not a copyright assignment. The
whole point of the business model referred to is that patients can't even
voice any opinion about the doctor, so it never gets to the stage where
"copying" is an issue .

~~~
jerf
From the contract as linked above by anigbrowl:

"If Patient does prepare commentary for publication about Physician, the
Patient exclusively assigns all Intellectual Property rights, including
copyrights, to Physician for any written, pictorial, and/or electronic
commentary. This assignment is in further consideration for additional privacy
protections provided by Physician. This assignment shall be operative and
effective at the time of creation (prior to publication) of the commentary."

But it is fair to point out that you are correct that there are many non-
copyright related clauses as well. You just aren't right about it being
unrelated.

