Consumers often turn to the Internet for reviews before purchasing products or services, and companies are increasingly interested in ensuring that such reviews reflect positively and accurately on their businesses. When patients post negative or allegedly inaccurate reviews about their doctors on the Internet, however, doctors are often prevented from responding due to ethical obligations such as patient confidentiality. Moreover, even if such reviews were to constitute defamation, under U.S. law, Section 230 of the Communications Decency Act (“CDA”) would prevent doctors from holding the website operators liable for hosting defamatory statements posted by others, such as reviews posted by site visitors. Doctors would thus be left with the undesirable option of pursuing action against the patients directly, which often involves additional legal proceedings to determine the authors of anonymous reviews. As a way to obtain greater control under such circumstances, an organization known as Medical Justice has created controversy by recommending that doctors require patients to sign contracts limiting their rights to publish reviews.
Over time, these contracts have reflected different approaches. In an earlier version, the patient agreed to “refrain from directly or indirectly publishing or airing commentary regarding Physician and his practice, expertise and/or treatment.” The doctor would presumably be able to seek an injunction against the patient for breaches of the contract, such as the publication of reviews. The patient’s agreement to such restrictions was described as consideration for the doctor’s treatment and for the doctor’s agreement not to exploit “legal privacy loopholes” that the contract claimed would otherwise be permissible under federal privacy law.
While this initial approach would have imposed liability on the patient for publishing reviews, it would still have allowed websites to continue hosting such reviews under the protection of Section 230 of the CDA. More recent contracts—possibly revised in response to this problem—do not directly restrain patients from posting reviews, but instead require the patient to prospectively assign to the doctor the copyright in any such reviews. “[I]f Patient prepares such commentary for publication on web pages, blogs, and/or mass correspondence about Physician, the Patient exclusively assigns all Intellectual Property rights, including copyrights . . . ” to the physician. If valid, such an assignment would allow doctors to send “take-down” notices under the Digital Millennium Copyright Act (“DMCA”) to websites hosting the patient reviews, thus requiring such websites to remove such reviews or face liability for copyright infringement. Section 230 of the CDA would not protect websites that receive such DMCA take-down notices, because Section 230 expressly does not provide any defense to infringement of copyright or other intellectual property rights.
As a novel use of copyright law, the Medical Justice approach may raise more problems for doctors than it solves. The website DoctoredReviews has identified several issues facing doctors who wish to enforce such contracts against patients or to serve take-down notices to websites hosting patient reviews. For example, such contracts may be unconscionable under state law and thus unenforceable, given the nature of the terms and the superior bargaining power of the doctor. Doctors may even face liability for attempting to exercise their rights under the DMCA. For example, if a doctor knows that he has not actually received a copyright assignment from the author of the review, then the doctor is potentially liable under the DMCA for submitting a take-down notice based on misrepresented information. Because many reviews are published anonymously, some doctors require all patients to sign the contracts, in hopes of establishing that any patient publishing a review must necessarily have assigned the copyright to the doctor. Even if a doctor does hold copyright assignments from all of her patients, the doctor may still know or suspect that a review had been fictitiously authored by a non-patient, who would not have signed any agreement. The publication of patient reviews may also constitute noninfringing fair use, and at least one court has found that copyright owners must consider whether fair use applies before sending DMCA take-down notices.
In addition to potential liability under the DMCA, doctors may face problems arising from the legal consideration that they offer to patients in exchange for the copyright assignments. In certain instances, the U.S. Department of Health & Human Services has prohibited doctors from representing that a patient’s agreement is in consideration for “providing greater privacy protection than required by law” when the law does, in fact, require such greater privacy protection. Beyond the legal issues, the use of such contracts may also violate a doctor’s ethical obligation to put the patient’s interests before the doctor’s own financial interests.
Other industries have also explored the use of prospective copyright assignments, although with different— and less ambitious—approaches than Medical Justice recommends. The Burning Man festival, for example obtains a joint ownership interest, together with attendees, in the copyright to any photographs taken at the event. Attendees also agree to make only “personal use” of such photographs. The agreement clarifies that, with respect to social networks, a use is only deemed “personal” if the attendee does not upload the images “with the intent to publicly display them beyond one’s immediate network, and if one’s immediate network is not inordinately large.” The festival’s representatives have stated that these terms are intended to protect the event from commercialization, and to protect the privacy of the attendees. In another example, the pop singer Lady Gaga reportedly requires a copyright assignment of photographs taken at concerts as a condition to obtaining press credentials. The photographers receive a limited license to use the photographs in connection with a specific website for a four-month period.
As user-generated review websites such as Yelp continue to grow in popularity, one can anticipate increasingly clever uses of intellectual property law by businesses intent on exercising greater control over their online personae. Yet, as the Medical Justice situation shows, too clever by half may not be clever enough. In the end, while social media may provide a company with the world’s largest, most cost-effective platform for promoting its goods and services, that same platform is also available to the company’s detractors.