MDs ask patients to assign copyright in any web-posting that mentions their care, to simplify censorship

Jason sez, "Doctors are being urged to give their patients a legal form that transfers a patient's copyright over web postings if they mention the doctor or practice online. The doctor can then send a DMCA takedown notice and have the criticism removed from the web without filing a lawsuit. As a fiction writer this worries me greatly, especially since the organization pushing this copyright transfer says it can also be used for fictional posts."

Medical Justice, who came up with this ridiculous scheme, also seriously misrepresents Wikipedia's position on anonymous editing.

When Online Gripes Are Met With a Lawsuit

Go to the doctor, lose the copyright to your writings (Thanks, Jason!)

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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slk

So you mean to tell me health care is America is getting worse.. again?
ian71

No, this time it’s Law in America that’s getting worse. Or at least trying to get worse.. they may fix this later.
stuart

If a doctor asked me to do that, I’d find a new doctor. Good grief.
DarwinSurvivor

And if you don’t sign it? Then what?
PaulR

Suppose you manage to fight off some disease. Your doctor takes a sample of your blood, so s/he can get some of your DNA or the antibodies – without telling you why.

You don’t have any rights regarding this material, nor the result of the research, no?

Tell your doctor that you’re doing some research (by being treated by him/her). The treatment you received is just like the DNA/antibodies that s/he ‘acquired’ – and they don’t have any rights to the result of the ‘research’, that is, your blog/comments.
Anonymous

Ha, I’d walk out too. Fuggedabouddit.
TEKNA2007

That’s why you read everything before you sign it — and if it’s on paper, strike out the parts you don’t agree to.

Although this Medical Justice copyright approach seems like the kind of thing that wouldn’t stand up to Supreme Court scrutiny, on the grounds of free speech infringement and the invalidity of parts of contracts that attempt to compromise fundamental rights.

Regardless: http://www.no-f—ing-way.com
Anonymous

This should work for restaurant and movie reviews too! Oh, and really anything that reviews anything. DMCA takedowns for everything Ebert has ever done!
Grant Hamilton

Though I don’t participate in Medical Justice, I understand why other doctors do. I feel compelled to post because I have a feeling that there is going to be a “pile on the doctors” theme in the comments.

You are right that there is, and should be, the right of free-speech on the part of the patient. Certainly bad things happen and patients may want to share that. The problem is that the reverse isn’t true. Due to HIPAA rules, the doctor can’t disclose any information by way of a rebuttal. So what happens sometimes is that anyone with an axe to grind, right or wrong, gets to say whatever they want and the doctor’s hands are tied. I think the better solution is that, once a patient posts about their confidential medical condition on line, it isn’t confidential anymore and the doctor can at least defend him or herself.
- redesigned
  
  “anyone with an axe to grind, right or wrong, gets to say whatever they want and the doctor’s hands are tied.”
  
  That isn’t quite correct. Right, the doctor can’t do anything. Wrong, the doctor can file a lawsuit and have it taken down and get damages. That is called slander and already protected by the law.
  
  Note:
  
  “The doctor can then send a DMCA takedown notice and have the criticism removed from the web without filing a lawsuit.”
  
  This is so that the doctor can take down legitimate complaints. They can take down anything, true or not. This is a misuse of the copyright laws.
  
  If a doctor asked me to sign something like this I’d find a new doctor. This is a gross abuse of patient rights. I am horrified.
  - Anonymous
    
    Slander in writing is called libel. Just thought you should know.
    - redesigned
      
      ah..thanks for the vocab tip, that is good to know.
      same law covers all three forms though, so the point still stands.
Joe

This is the reason why many countries have the concept of moral rights: rights that cannot be assigned away. If you can legally sign away a right, and you’re in a precarious position, you might basically be coerced into signing away that right.

It simply shouldn’t be allowed to sign away your copyright in anything you say about a person, basically in exchange for nothing (and I say “for nothing” because a doctor’s business is to treat patients, in exchange for monetary compensation: it isn’t like the patients are getting a discount for having their arms twisted to sign papers like this).

This is where doctrinaire libertarians go seriously wrong: they will argue with a straight face that people should be allowed to assign themselves into slavery, and the fact that they can’t do this is coercive, anti-freedom.
Darran Edmundson

I second Tekna2007′s advice. Get into the habit of striking out elements of contracts you don’t like. I do this all the time, everything from car rental contracts to hotel registrations. No need to draw attention to this, just stroke out bits and pieces, and sign. I haven’t yet been asked to explain this behaviour by the person asking for the signature.

It paid off recently when the mobile company Three tried to charge me $250 to exit a contract “early”. I said there’s no way I would have signed up for the stated duration. They rather smugly said it was on the contract that I signed. So, not being totally sure, I asked them to send me a photocopy of the contract. Sure enough, there was my duration change on the contract, duly signed by myself and the lackey in the store.

It pays to read the fine print.
Darran Edmundson

@Joe, #10, IANAL but depending on the jurisdiction, moral rights can be waived contractually. Certainly the case here in Canada.
MG MD

@PaulR: In the US, when medical research is proposed to research review boards, extensive consents detailing exactly how samples will be stored and used are provided to the research participants, with instructions on how one might revoke their consent at a later time.

@Grant H, I couldn’t have said it better myself. While I don’t and wouldn’t participate in requiring this kind of contract, I think the concept of patients (many of whom aren’t paying, Joe) reviewing doctors is quite a different situation that movies or restaurants given the legal requirements and ethical/professional codes of conduct imposed on physicians.
AT203

It seems that if this actually matured into a copyright infringement litigation that a defendant (patient posting critique) would be able to assert a defense of Copyright Misuse. See http://en.wikipedia.org/wiki/Copyright_misuse . But, because of the way the DMCA works, a patient would have to jump through considerable hoops in order to vindicate what is clearly expressive speech on a topic of public interest (health-care quality).
rmstallman

These contracts are nasty, but if you have signed such a contract,
there is a way to bypass it. Tell your story to someone else, and he
can write and post an account of the events that happened to you.
This way, the copyright belongs to him, which means that the contract
does not apply to his writing.
Rosetta

So what happens sometimes is that anyone with an axe to grind, right or wrong, gets to say whatever they want and the doctor’s hands are tied. I think the better solution is that, once a patient posts about their confidential medical condition on line, it isn’t confidential anymore and the doctor can at least defend him or herself.

I agree that in principle it isn’t fair for a patient to publicly complain about a doctor if a doctor can’t say anything back. But, I don’t think that any complaint by a patient should result in waiving privilege! What if all the patient complained about was, say, the doctor’s bedside manner? If I post something saying “Dr. Joe was really rude and unfriendly, and ignored me when I asked questions about his diagnosis” I don’t think that should mean that Dr. Joe can now publicly tell everyone what my diagnosis was, but perhaps he should be allowed to say something like “I wanted to explain the important parts of the diagnosis before answering questions, and I don’t think that I was being rude but this patient seemed stressed and may have perceived it that way.”

That kind of thing is probably hard to regulate, though.
- Grant Hamilton
  
  I wish these things were that benign. That sort of comment isn’t what Medical Justice is trying to prevent anyway. What they are trying to stifle is something like setting up a website drsoandsosucks.com. A friend of mine who is a world-reknowned surgeon had a complication (that the patient was warned was possible before surgery) and the patient made a site like that and nearly undid a sterling 30-year reputation.
  - redesigned
    
    @Grant – Again you miss the point. Doctors are already protected by law from what you claim. That is called slander, they can file a lawsuit, get it taken down and get damages. This is something very different. It is a misuse of copyright law, and a gross violation of patient rights.
    - Grant Hamilton
      
      Here is a (not so) hypothetical situation:
      
      Patient smokes 2 packs a day putting them at a much higher risk of an infection post-operatively. Against medical advice, they continue to smoke. Infection ensues with awful looking open wounds and draining pus. Website created stating that “Dr. Smith was my doctor and look what happened to me!”
      
      IANAL but both of those are factual statements so winning a libel suit is going to 1. take forever, 2. cost a fortune and 3. probably be impossible. Yet it still makes Dr. Smith look like a horrible doctor.
      
      How do you solve this problem?
      - loonquawl
        
        There is no soultion, because currently there is no problem. Anybody, right now, can put a sign on the web saying ‘I drank Coca Cola. I look like shit.’ As long as there is no implied causal link there is no way to stop this. As soon as there is a causal link, libel laws apply.
        
        But as soon as mentioning an entity defers copyright to that entity, there is a problem. Consider ‘I drank Coca Cola, and i did not like it’. Or ‘the cleaner on 5th street once ripped my shirt’.
        There are always cranks, but as everybody knows that, a few cranks do not a sullied reputation make – yet consider the situation where you really think your doctor fucked up. Why should you be barred from writing about it? Why should everybody else be barred from reading about it? Making a decision about which doctor to go to, especially with critical or costly procedures is not a thing lightly done, so why should the doctor with the best web-sanititation department look the best, and not the one with the least disgruntled patients?
      - Anonymous
        
        IANAL, but a journalist so I know a bit about libel law. In Canada the sort of defamation you describe would be termed innuendo and would still be actionable in a libel suit. You wouldn’t necessarily have a win as a plaintiff, but i think it would be pretty likely that you would win.
      - AT203
        
        There are some other causes of action related to defamation. “Public disclosure of private facts” is one, but probably not relevant to the topic discussed here. Maybe more on point is the tort of representing in a false light. See http://en.wikipedia.org/wiki/False_light
      - Antinous / Moderator
        
        How do you solve this problem?
        
        You can’t. I worked in health care for twenty years. You save their life, they sue you. You accidentally amputate the wrong leg, they bring you candy. There’s very little relationship between quality of care and patient perception of quality of care.
      - redesigned
        
        How do you solve this problem?
        
        I don’t have a good solution. I do know that abusing patient rights and copyright law is not the answer, and that said “solution” is much more likely to be abused then to help those few that face the gray area situation you describe.
        
        I bet the percentage of people that are not motivated enough to follow their aftercare properly, yet are pissed off and motivated enough to create such a website, yet are not pissed off enough to say things that qualify as libel and keep things completely neutral…is a very low percentage. I’d also bet that the percentage of doctors that would take down legitimate claims to protect their reputation is very high. This has to be the worst solution they could have come up with short of amputating patients tongues and fingers!
        
        I guess i should be glad they are only amputating patients civil rights!
Antinous / Moderator

If you’re choosing your doctor based on online reviews, you’ve already got a big problem. Most people can’t even tell you their diagnosis or what meds they’re on. Patients tend to rate doctors based on charm and looks. I see no reason to interfere with the process of natural selection going on here.
Anonymous

Speaking as an trans person, I’ve had some pretty bad experiences with doctors. Some people, notably Les Feinberg, have nearly /died/ due to doctors being more obsessed with their gender presentation than their illness. (Some do die.)

Feinberg has written about what happend to hir, but hasn’t named the hospital because ze says they threatened hir with legal action that ze can’t afford to defend hirself against.

Anybody who believes that /doctors/ are in the weaker position has a lot of privilege in regards to health, class and gender.

Trans people need to be able to communicate about what doctors to see and which to avoid. So do people with specific illnesses. This stems from self-defence.
Anonymous

Add a royalty clause.
Rosetta

That sort of comment isn’t what Medical Justice is trying to prevent anyway

I can believe that, but how is anyone going to stop them from abusing that power later if they get to call it copyright? My point is that if we’re making rules about this, we should make rules that keep things in perspective, not that have it completely one-sided one way or the other.

If I understand it correctly, this copyright thing would give the doctor the power to suppress any and all discussion about them, even if it was 100% true. So even if their intention is only to suppress completely wrong, libelous writing, then this still isn’t the right way to do it.
Lobster

First of all, the MDs aren’t doing this by themselves. They’re being urged. Secondly, anyone with half a brain can understand a complicated legal document, especially in the comfort of a hospital bed while being treated for serious ailments and likely on powerful drugs with cognitive side-effects.
Jason Sanford

Cory: Thanks for linking to my post on all this.

This evening I noticed that the NY Times changed the section of the article I quoted in my post, which originally read “The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.”

Their quote now says “The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives doctors more control over what patients post online.”

Obviously that’s a big difference. I looked for a correction notice but the NY Times hasn’t posted one. I’m kicking myself for not having copied the original article. However, others noticed this same quote (which I’ve linked to in my original post).

If the NY Times misquoted Medical Justice, they need to run a correction, not simply change the article without notice. I’m also wondering if the NY Times accidentally revealed the trade secret to how Medical Justice’s “tool” for dealing with online criticism.
Thalia

You generally cannot have an assignment of an unconditional expectancy (e.g. as yet unwritten product has no copyright), without compensation due to equitable considerations. That said, it would probably be sufficient for a DMCA notice, because the mere assertion of copyright is sufficient.
- grimc
  
  I was wondering about that–can a piece of writing that doesn’t even exist yet be copyrighted?
  
  That aside, I wonder if a doctor would even need an actual legal document. All it takes for most sites to immediately remove content is a letter on a law firm’s letterhead; BB posts examples all the time. Just the fear of being involved in a lawsuit is all it takes for most sites to remove content. This seems as useful as a Best Buy extended warranty.
Jason Sanford

My comment above should have read “I’m also wondering if the NY Times accidentally revealed the trade secret to Medical Justice’s ‘tool’ for dealing with online criticism.”

But even with the change to the NY Times article, all of this is still very disturbing. Doctors shouldn’t try to limit their patients’ free speech–whether or not copyright is involved. But until I hear why the NY Times changed their information, I’m sticking with my original reading of the article.
Daemon

The scary thing is – your doctor hands you a bunch of papers, and asks you to sign them. Most people would probably just sign them without really reading them.
Snig

The cure to pollution is dilution.
Doctors need to generate enough good will to drown out the outliers. Additionally, if a patient feels wronged and needs to vent, there are worst things to do then post it online. A wronged patient who signed that document can still intiate a lawsuit, which would typically be much worse for the doc than anonymous posting. Lastly, sometimes people need to vent for their health. Forbidding them from venting is actually denying them an avenue to heal. It sucks when they vent on you, but I think it comes with the job description.