Online review sites are becoming an increasingly important catalyst to digital commerce — when it comes to shopping at local businesses, review sites like Yelp are many consumers’ first stop. Plenty of businesses don’t like the negative reviews they get, but a few thousand doctors have gone the extra mile to try to erase that bad press. Working with a company called Medical Justice, they’ve designed a system that tries to use copyright law to control and remove unflattering reviews. Now, a group of law professors are challenging that system, saying it’s illegal and against the purposes of copyright.
Medical Justice was founded in 2002, and today has about 3,000 members, located in various states and representing different medical specialties, who pay an average of $1,200 a year. The company sells membership as a batch of services, mainly centered around helping doctors that are facing medical malpractice litigation. But the Medical Justice benefit that has drawn the most scrutiny is its program of fighting “physician internet libel and web defamation.” The system works by getting patients to sign contracts that assign away the copyright in any future review they might of a doctor-to the doctor.
Why use copyright at all? A Medical Justice spokesman says the first system the company used-a simple contract doctors could give to all patients that banned reviews outright-was seen as “draconian” and the company was hunting for a more nuanced solution. Additionally, some courts have punished companies that have tried to use contracts to directly stop consumer reviews.
By having patients assign copyright in any reviews to their doctor, Medical Justice hopes to sidestep those problems. It’s also an effort to help doctors get around Section 230 of the Communications Decency Act (an “arcane nuance of cyberlaw,” according to Medical Justice’s website), the law that protects web services from getting sued over content posted by their users. When doctors send review sites a note complaining that a review is false or defamatory, the website is protected by CDA Section 230 and is unlikely to remove the review. But when the same sites receive copyright takedown notices, the law compels them to act-and act quickly. Section 230 doesn’t cover intellectual property claims, and copyright infringement has harsh legal penalties.
Medical Justice argues they’re just leveling the playing field. CDA 230 results in a skewed situation for doctors, who can be reviewed by their patients but are prevented from responding because of privacy laws, it says. “Some sites say, we don’t know if you’re telling the truth, and we don’t know if they’re telling the truth-it’s the internet, so deal with it,” says Shane Stadler, a spokesman for Medical Justice.
But a group of legal academics led by law professor and blogger Eric Goldman have big problems with this interpretation of the law. Today Goldman, together with his partner, UC Berkeley Law Professor Jason Schultz, launched a website called doctoredreviews.com. On the site, the two law professors offer their views on how patients, doctors, and review sites should deal with Medical Justice’s strategy, which they argue is likely illegal and surely unethical.
“There’s a substantial risk a court would deem [the Medical Justice copyright transfer] unconscionable,” Goldman wrote in an e-mail yesterday. Copyright takedown notices sent based on Medical Justice copyright transfers could actually expose doctors to liability, Goldman says, because there are legal penalties associated with sending false takedown notices. In a statement posted on his personal blog, Goldman wrote: “Should the website fail to curb the bad practices, we may need to reconsider more aggressive options.”
Stadler says he’s confident that Medical Justice’s use of copyright transfers is, in fact, legal, and it lets doctors defend their reputations while still letting most patients review away. “Can it be abused? Sure,” says Stadler. “Anything can be abused.” While it’s not a perfect system, most doctors use the power responsibly, he says.
Asked what he thinks of Goldman’s website, Stadler is diplomatic: “The gentleman who launched it is a real ardent advocate of total free speech-that you can say pretty much anything on the internet.”
Goldman admits to being an “ardent advocate” of CDA Section 230. “On that basis, we need to fix any legal artifices-like Medical Justice’s legal ‘hack’-that subvert Section 230’s social benefits.”
How are the review sites themselves handling the requests from Medical Justice? According to Goldman’s website, Yelp has refused to honor one doctor’s takedown notice based on an anti-review contract. Another website, RateMDs, has created a “Wall of Shame” to identify doctors who use anti-review contracts.