The way the system works is by having the doctor, who is a member of their service, give patients as part of their paperwork, a contract giving the doctor all rights to any reviews they write. The doctor then can use copyright to have unwanted reviews removed from the Web.

While the story is actually old, first noticed a month ago and previously covered in the 3 Count, the return of the story is a chance to discuss it in greater detail and ponder the issues it raises.

So is the system legal and could you be signing away your copyright the next time you visit the doctor’s office? The answer is, unfortunately, unclear.

How the System (Theoretically) Works

Doctors, when it comes to online reviews, admittedly have something of an uphill battle. Section 230 of the Communications Decency Act protects sites that host libelous speech posted by users. This prevents doctors, as well as other professionals, from being able to get false statements removed.

However, doctors face an additional challenge is that privacy laws often make it difficult or impossible to respond to negative reviews as they can’t disclose any patient information without permission. This can make it difficult to counter any negative statements.

To get around this, doctors have attempted to find ways to work around the law. Some have tried a series of “gag” orders blocking patients from making reviews and others have said that, by posting reviews online, they sacrifice their right to privacy (thus giving the doctor the write to respond).

The latter approach has been shot down by the Department of Health and Human Services, and the former has, generally, been rejected by review sites.

The copyright angle used by Medical Justice sidesteps those issue and lets doctors use the DMCA to force hosts to remove the now “infringing” reviews or face liability themselves. However, this angle to is fraught with its own perils.

First, it’s very likely that the transfer of copyright would be ruled invalid. While transfers of copyright are common, the standard for doing so is very high and its questionable, at best, whether a court would accept a transfer as part of a packet of new patient documents, especially when a person is in need of medical attention. Even if it does work, as pointed out by the site Doctored Reviews, the doctor can only file takedown notices for reviews they are certain were written by a patient who signed one of those contracts.

If both the transfer and the certainty of review ownership are not in place, the takedown notice itself could open the doctor up to legal repercussions under the DMCA.

All in all, the system is loaded with legal peril and this may be why, according to the Ars Technica article, there is no evidence of it actually being used. Still, the issue is far from theoretical as at least one doctor attempted to get a Yelp review removed using such a gag order.

The question then becomes, what can patients do?

How to Protect Yourself

To be clear, at this time it seems very few doctors use these kinds of gag orders at all. The majority seem to either be ignoring the issue of false reviews online or dealing with it in other ways.

Still, if you are a new patient signing paperwork, it’s probably worth being aware of this problem and reading what you’re signing to see if there is any mention of reviews and restricting your rights to post them.

However, if you do receive such a contract, you’re pretty limited in what you can do. If you need urgent medical attention, not signing the document could delay critical care. But even if it’s a routine visit, you may be limited in your other options depending on where you are located.

At this point, you would have to make a very difficult decision as to whether it was worthwhile to sign the agreement, knowing it to likely be invalid, try to negotiate out of the contract or simply walk away. There’s no easy answer to that situation.

So, while you’re not likely to be faced with such an agreement, if you are, it’s without a doubt a thorny situation.

Bottom Line

In my opinion, doctors that go down this route are missing the point. These contracts restrict their patients ability to post reviews, good and bad, while doing nothing to prohibit non-patients, including competitors and other enemies, from defaming the practice (supposedly the problem). Combine that with a slew of legal headaches and dangers, it’s a situation where the doctor is undertaking a lot of risk for very little reward.

That being said, the doctors are right that they are in a difficult position. However, the alternatives of this position are even worse over all, especially for patients.

While it’s understandable that doctors want to defend themselves against false reviews and defamatory statements, this is an extreme overreaction to the problem. Asking patients to sign over rights, privacy or copyright, to receive medical care is simply too much.

Hopefully, the doctors that are doing this are unaware or simply have not adequately thought through what they are doing. I would hate to believe that any member of the medical community would knowingly put their (relatively trivial) interests ahead of their patients ability to receive care.

However, that is exactly what these contracts do for those who read and object to them.

Though the focus of this site is on copyright and plagiarism issues, there are other legal issues that Webmasters, community administrators and others need to worry about.

One of the thornier issues has to do with libel, especially when it involves communities, blog comments or other user-generated content.

One such example of this involves the forum site Scubaboard, which was sued for libel by a travel agency that accused it of posting false statements about a tragic incident involving the company in 2008 where one diver died and 10 others were sickened by tainted air.

I did a write up on the case as for my good friend and Copyright 2.0 Show co-host Patrick O’Keefe well as some general advice for forum administrators on libel issues.

In addition to the background of the case, I also offer some basic analysis of the law in this area as well as tips and suggestions for other forum administrators to try to reduce the various dangers.

It is a lengthy piece but one that is important to anyone who runs a community, whether it’s a message board, blog comments or anything to the like.

So, if you are an artist and are interested in copyright issues, it is worth a moment to have an understanding at least some of the issues involved in libel law online. If that’s the case, this article and the links off it may be a great place to begin.

photo credit: akeg

Whenever I am answering questions about copyright or plagiarism issues, it is almost inevitable that someone asks me this question:

“Is it OK for someone to publish an email they get on the Internet?”

This seems to be one of the most common issues people have on the Web. Whether they are someone who has had their email published or are considering publishing someone elses, the legal questions about whether or not it is acceptable to post an email sent to you are constant.

Those questions have only ramped up since the recent hacking of Sarah Palin’s personal email account, resulting in the posting of many of the messages.

Is it legal to publish someone else’s email? It is a tough question. For the sake of time we’re going to assume that the two parties were the sender and recipient of the email respectively, thus avoiding the issues of unauthorized access.

With that in mind, I’m going to provide this in a point/counterpoint fashion to highlight some of the complexities of the laws involved.

Point

Email meets all of the criteria for copyrightability. It is an original work of authorship fixed into a tangible medium of expression. The act of hitting “send” writes the content to a server somewhere, thus qualifying it as being fixed.

The application means that the copying and pasting of it into a Web site, without permission, is most likely a copyright infringement.

Counter-Point

However, when you send out an email, you are likely providing an implied license for many things to happen with it. Automatically, the email is copied multiple times as it makes its journey and there is no case against any of those copies.

Further more, it is a foreseeable consequence the recipient may forward the email to friends and family or even to a large mailing list. That is a form of republication in and of itself and posting a work to the Web is not far beyond that.

Many might argue that, by sending an email to someone, especially someone who is a known reporter or blogger, that there is an implied license to publish it.

Point

The implied license argument is weak at best. Forwarding an email to people you know is different from posting it on the Web the same as forwarding a letter to another office is different from tacking it on the bulletin board.

Implied license issues on the Internet typically deal with works that are already posted on the Web, such as blog posts, and not emails that were intended for one viewer. Despite the ability to forward a message most, when they send an email, only intend the recipient to read it.

An email being republished on a blog is not a foreseeable consequence in the vast majority of cases. That makes an implied license argument very difficult to make.

Counter Point

Even if the implied license argument does not hold, there are still many other exemptions to copyright law that can apply.

First and foremost, facts and information, by themselves, are not copyrightable. Copyright law protects the expression of an idea, not the idea itself. If one does not copy verbatim but only expresses the facts, it is most likely not a copyright infringement.

Second, fair use allows the use of small portions of copyrighted material for the purpose of commentary, criticism, etc. As long as the use is reasonably transformative and does not use more material than is necessary, it is very likely that the use would be deemed “fair”.

Point

The fair use argument is an uphill battle. An email would not be considered a published work, thus, it is much harder to make such a claim. Furthermore, remember that fair use is an affirmative defense and, even if you did win, you would still be sued and likely be dealing with court expenses. Relying on fair use is risky at best.

However, there are still other laws that deal with email republishing such as privacy, defamation and trade secrecy. Copyright is just one possible angle.

Counter Point

In the U.S., there can be no invasion of privacy without there first being a reasonable expectation of privacy. An email, when sent unencrypted, can be easily read by anyone looking at it in transmission, it is essentially a postcard working its way through the mail system, easy to open and read.

Unless additional steps are taken, there is almost no expectation of privacy. Furthermore, if you send the email from work, where you likely sign away much of your privacy rights, you might have even further restrictions.

The other issues don’t directly pertain to republishing email. Defamation and trade secrets are both problems with republishing email, but the fact that the information came from an email doesn’t add any large new legal questions. You always have to be careful what you publish, no matter where you get the content from.

Point

The “reasonable expectation of privacy” limitation only applies to the United States. Other countries, for the most part, seem to treat email with the same privacy reverence as postal mail.

Furthermore, even though you may feel that there is no “reasonable expectation of privacy”, the courts seem to disagree. This is why the government needs a warrant to access your emails.

If the U.S. government needs a warrant to access your emails, it only makes sense that posting such emails on the Web would be a violation of privacy.

Counter Point

The case you mentioned deals only with email stored on an ISPs server and not email in transmission. Furthermore, the ruling was very narrow in nature, leaving room for ISPs to trump your privacy expectations in their license agreement.

Most users still have no reasonable expectation of privacy, even on email stored at their ISP, much less in transmission.

However, all of these issues become moot. If something can be deemed to be newsworthy, the first amendment grants broad protections for people to report on the facts, no matter how they got the information. As with the case of Wikileaks and Palin’s email, the site is not liable due to the freedom of press and the fact they were not responsible for the break in.

There are many ways around the privacy issues, especially in high-profile cases, and most privacy rights as they pertain to email are, at best, untested.

Bottom Line

This is just a brief overview of some of the key issues that arise when dealing with publishing email on the Web. This imaginary debate could likely have gone on for days with no real conclusion.

If you are wanting to use an email in a blog post or other article on the Web, the best thing you can do is either ask for permission or approach the person as a reporter and make it clear that all of their replies are on the record.

If you want to protect your email privacy and prevent publication, the best thing you can do is encrypt it, thus ensuring that only the recipient could receive it and establishing an intent to preserve privacy. Failing that, you can use disclaimers in your email though the legal effectiveness of such disclaims has not been adequately tested.

The absolute best advice is to not put anything in an email that you would not be comfortable with it being posted. Though almost everyone does, with the laws where they are, it is a risky activity.

Conclusions

The purpose of this exercise was not to reach any kind of conclusion about whether or not republishing email is legal and, if so, under what circumstances. With so many laws and issues in play, this is clearly a legal minefield no matter how you approach it.

The best thing you can do right now is be smart about how you use email and what you send through it and to also treat other’s email with respect.

If you do that, you can skirt these issues completely because you can avoid misunderstandings. If you don’t, there’s almost no telling what can happen legally as so much of this is untested.

However, he probably didn’t expect any of that attention to be in the area of copyright. Trademark and defamation perhaps, but not copyright.

But that is exactly what has happened to him and the blame is not on him or anything he posted on his site, but rather, an overzealous attorney who tried to use copyright law to stiffle completely legitimate free speech.

The result is that what started as a cookie-cutter defamation issue has now evolved into a copyright controversy that borders on being a laughingstock.

The Story So Far

On September 9 of this year, Leonard received a letter from the law firm Dozier Internet Law, P.C. regarding issues of alleged defamation. The attorney, Donald E. Morris Esq., was representing DirectBuy (noisy site), a “buy at home” company that has received many bad reviews on Leonard’s site.

On the surface, it seemed to be just another defamation dispute. DirectBuy took issue with some of the reviews on Leonard’s sites and demanded that they be taken down and that DirectBuy be compensated for costs. This type of dispute, unfortunately, happens pretty regularly.

But it is the last paragraph of the long, legally dubious, cease and desist letter (PDF) that has gotten the most attention. There, Morris said the following:

“Please be aware that this letter is copyright by our law firm, and you are not authorized to republish this in any manner. Use of this letter in a posting, in full or in part, will subject you to further legal causes of action.”

In short, in an attempt to keep lid on the actions of DirectBuy and their law firm, Morris threatened to go after Leonard for copyright infringement if he posted the letter.

Fortunately, Leonard was unbowed and he sought the counsel of Public Citizen, a non-profit consumer advocacy group. The group posted the letter on their site, in direct violation of Morris’ order, and also posted a strongly-worded reply to it.

What happens next remains to be seen.

The Copyright Issues Within

There is little doubt that a cease and desist letter is protected under copyright law. It is a creative work of expression, this one more perhaps creative than most, and is fixated into a tangible medium of expression. It certainly is protected and the fact it is a cease and desist letter does not change that.

However, posting a cease and desist letter also has a very strong fair use case. Consider the four factors for a moment:

1. The use would be for commentary or criticism of the actions of the party. It would also be likely considered transformative as it would be a part of a larger work criticizing the sending of the letter.
2. A cease and desist letter would be likely considered unpublished, affording it at least some protections.
3. One would likely be using the whole work though Morris’ threat specified “in full or in part”. Using the full work would be a minor strike against fair use, using just part of it wlikely would be a strike for it.
4. Since the work has no commercial value, the market for it can not be damaged. Though I suppose one could use the cease and desist to create a template and sell it, that would be a stretch and it doesn’t seem to apply well to this case.

Granted, it is completely impossible to tell whether or not a use is fair until a judge and/or jury get ahold of the case, but considering the two most important factors, the first and the fourth, strongly favor fair use and the secondary factors, the second and third, only slightly favor infringement, it seems at least likely that the use would be found fair.

Other Hurdles

Of course, a fair use defense assumes that the case even makes it to court. The odds of that happening are slim to none.

First, in order to sue in a Federal court, the letter will have to be registered with the United States Copyright Office. That is unlikely to be the case right now and it seems unlikely that they will take that step in the future. Furthermore, if they do register later, they will only be able to claim statutory damages that occurred after the submission.

The second problem is that, even with statutory damages it would likely not be financially viable. Without being able to prove that the infringement was willful, damages will be at the very low end of the spectrum.

Finally, I doubt any judge or jury would allow copyright law to be used a club to silence free speech. Companies may try, but when the cases go to court, there is a very strong record of courts coming down in favor of the little guy.

Furthermore, even if DirectBuy and Morris make good on their threat to take the case to another country, the odds of them being able to collect on any judgment are slim to none. Any positive ruling in Canada or elsewhere would be, at best, a pyrrhic victory.

Conclusions

Although I am a big of a supporter of copyright protection (within reason), I am an even bigger supporter of free speech rights.

Using copyright law to club free speech only hurts both free speech and copyright. Not only does it hurt your case legally, but it also hurts copyright law in general by turning public opinion even farther against it.

In short, if you get a cease and desist letter and feel the need to post, seek out legal counsel and follow their advice. Odds are that there aren’t any major issues with it, but it would still be better to be safe than sorry.

On the other hand, in something that relates to readers of this site, if you send out cease and desist letters, don’t put anything in there you don’t want posted on the Web. There is little stopping someone from posting such a notice with relative impugnity. Chilling Effects already posts DMCA notices on their site with few legal issues and others can likely do the same.

The bottom line is, when you out there, defend your rights but always be one of the good guys. Don’t do anything you would be ashamed of the world knowing about.

After all, it is a public Internet and word has a way of getting around.

Hat Tip: William Patry
Special Thanks: Blog Law Guy for his input