Doctors use copyright assignment in patient contract to stifle bad reviews
eff.org
eff.org
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.
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.
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)
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/...
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.
While this should be the case, I don't like this argument because it reeks of the "what do you have to hide?" argument used against privacy protections. The problem isn't the good doctors, it's the bad doctors.
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.
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.
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.
If this goes ahead, every member of the medical community would suffer due to the taint caused by a few rotten apples.
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.
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 .
"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.