It’s bad enough having a toothache. It’s much worse when your dentist rips you off for $4,000 and then threatens to sue you for complaining about the treatment.
That’s what happened to New York City patient Robert Lee, whose ordeal started in 2011, but ended last week when a federal judge ordered the dentist to pay $4,677 in damages and legal fees.
The dentist in question, Stacey Makhnevich, boasted of being an opera singer who catered to musicians. Her other speciality was short-circuiting negative Yelp reviews with tricky contracts that required patients to assign their copyright in what they wrote about her services. (See Ars Technica for the legal background).
Sure enough, after Lee complained about her on Yelp, Makhnevich went after him. She pointed to the contract to demand that Lee pay $100 in copyright damages for every day the negative review stayed online.
Makhnevich is not the first to try this stunt. Other professionals around the country, mostly doctors and dentists, have also been using service contracts to stifle social media criticism.
Fortunately, they’re not all succeeding. After Lee filed a lawsuit to stop Makhnevich, U.S. District Judge Paul Crotty agreed with him that the Yelp review was fair use under the Copyright Act.
He also chewed out Makhnevich in a default judgment, finding her actions to be unconscionable and a breach of fiduciary duty, and ruling that Lee’s commentary couldn’t be defamatory under New York state law.
The Makhnevich affair is another example of the Streisand effect, and why it’s perilous to use aggressive legal tactics to control social media. (Last year, a hotel in New York found out something similar, when it threatened a bride with $500 fines for every negative review posted by her wedding guests.)
For Lee, however, the $4,677 may be a hollow victory since the rogue dentist is now nowhere to be found. The judgment is below:
Update: For the lawyers out there, Paul Levy of Public Citizen, who represented Lee: “The damages were awarded on a different cause of action than the one about the non-disparagement / copyright assignment agreement. In addition to that claim, which is what got all the public attention, Lee had a claim for breach of contract, because the dental office promised to send records to his insurance company so he could get reimbursed for her (exorbitant) charges. They did not send the records so he was out the money, and the damages were ONLY for that.” (I’ve changed the headline to reflect this)