When I walked into the offices of Dr. Ken Cirka, I was looking for cleaner teeth, not material for an Ars Technica story. I needed a new dentist, and Yelp says Dr. Cirka is one of the best in the Philadelphia area. The receptionist handed me a clipboard with forms to fill out. After the usual patient information form, there was a "mutual privacy agreement" that asked me to transfer ownership of any public commentary I might write in the future to Dr. Cirka. Surprised and a little outraged by this, I got into a lengthy discussion with Dr. Cirka's office manager that ended in me refusing to sign and her showing me the door.
The agreement is based on a template supplied by an organization called Medical Justice, and similar agreements have been popping up in doctors' offices across the country. And although Medical Justice and Dr. Cirka both claim otherwise, it seems pretty obvious that the agreements are designed to help medical professionals censor their patients' reviews.
The legal experts we talked to said that the copyright provisions of these agreements are probably toothless. But the growing use of these agreements is still cause for concern. Patients who sign the agreements may engage in self-censorship in the erroneous belief that the agreements bar them from speaking out. And in any event, the fact that a doctor would try to gag his patients raises serious questions about his judgment.
As we dug into the story, we began to wonder if Medical Justice was taking advantage of medical professionals' lack of sophistication about the law. Doctors and dentists are understandably worried about damage to their reputations from negative reviews, and medical privacy laws do make it tricky for them to respond when their work is unfairly maligned. Although Dr. Cirka declined repeated requests for an interview, his emailed statements (and the statements of his staff) suggest he doesn't understand the terms of the agreement he asks his patients to sign.
In any event, we think censoring patients is the wrong way for doctors to deal with online criticism. Consumers understand that no business satisfies 100 percent of its customers, and the medical profession is no different. If a dentist is worried that negative reviews will harm his reputation, he should respond by providing more information about his practice to prospective patients, and by encouraging his satisfied patients to post positive reviews online. The revelation that he is trying to censor his patients' reviews will do far more damage to his reputation than an occasional negative review ever could.
Just sign here
The agreement that Dr. Cirka's staff asked me to sign on that February morning began by claiming to offer stronger privacy protections than those guaranteed by HIPAA, the 1996 law that governs patient privacy in the United States. In exchange for this extra dollop of privacy, it asked me to "exclusively assign all Intellectual Property rights, including copyrights" to "any written, pictorial, and/or electronic commentary" I might make about Dr. Cirka's services, including on "web pages, blogs, and/or mass correspondence," to Dr. Cirka. It also stipulated that if Dr. Cirka were to sue me due to a breach of the agreement, the loser in the litigation will pay the prevailing party's legal fees.
This seemed fishy to me, so I asked for more information. I had a long conversation with Dr. Cirka's office manager, who insisted that the agreement was not intended to censor the truthful reviews of Dr. Cirka's patients. Rather, she said, it gave Dr. Cirka a tool to remove fraudulent reviews. She said they were especially concerned about non-patients (such as competitors, ex-spouses, or former employees) writing fake reviews to damage Dr. Cirka's business.
She didn't have a good answer when I pointed out that the agreement's text didn't say anything about fraudulent reviews. She also couldn't explain how the agreement could bind non-patients, who by definition will not have signed it.
In fact, she seemed genuinely puzzled by my objections and gave the impression that I was the first person to raise these concerns. But she wouldn't budge on letting me see Dr. Cirka without signing, and she refused to give me a copy of the agreement so I could seek legal advice. Needless to say, I said "no thanks" and am now in the market for a different dentist.
In a written statement, Dr. Cirka acknowledged that the text of the agreement was provided by Medical Justice, and repeated his staff's line that the agreement is focused on fraudulent reviews written by competitors and disgruntled employees. He expressed concern that HIPAA would prevent him from responding properly to negative reviews. And he seemed as stumped as his assistant when I asked him to explain how the agreement could bind people who never signed it. His refusal to talk on the phone made it hard to judge if he really didn't understand this point, or was just pretending not to.
Empty threats?
We can't find any evidence that Medical Justice-style agreements have ever actually been used to censor online reviews. Dr. Cirka told Ars that he has never attempted to remove a fraudulent review using the copyright assignment policy. And Yelp told us that they "have never elected to remove a review in response this type of takedown request." The experts we talked to said they've gotten similar statements from other review sites.
Courts are unlikely to find the agreement to be a valid transfer of copyright.
That's probably because the agreement isn't likely to hold up in court. Ars talked to Wendy Seltzer, a fellow at Princeton's Center for Information Technology who founded the Chilling Effects clearinghouse for copyright takedown notices. She said a medical professional seeking to use the copyright assignment to censor a review would have at least two serious legal problems.
First, courts are unlikely to find the agreement to be a valid transfer of copyright. Blanket, prospective copyright assignments can be valid, but only in certain circumstances. For example, employees can assign any works created on the job to their employer. But online reviews don't fit into any of the usual categories of "works made for hire," and any doctor who claims her patients write reviews on her behalf is likely to be laughed out of court. Second, even if the assignment is valid, courts are likely to find that review sites are entitled to publish them under copyright's fair use doctrine.
Yelp shares Seltzer's assessment, telling Ars that "there are any number of reasons to believe the agreements don't hold water as a legal matter." Yelp spokeswoman Stephanie Ichinose signaled a readiness to fight these agreements, which she says "put the needs of doctors ahead of a patient community that has surprisingly few places to turn for helpful information about the medical profession."
"We are happy to support a patient's right to free speech," Ichinose said.
Seltzer told Ars that a dentist who tried to remove the review of someone who hadn't signed the agreement would face particularly severe problems in court. Under the "notice and takedown" procedure spelled out in the Digital Millennium Copyright Act, the person seeking to have material removed must certify, under penalty of perjury, that he holds the relevant copyrights. But if the author of a review never signed an agreement, then a doctor's claims to hold the copyrights would be a blatant lie, and he would face penalties under the DMCA.
"Completely unethical"
The growing use of censorious copyright assignments recently caught the attention of law professors Jason Schultz and Eric Goldman, who created a site called Doctored Reviews to educate doctors and patients about the phenomenon.
When Ars asked Schultz about medical professionals who ask their patients to sign these agreements, he was scathing. "It's completely unethical for doctors to force their patients to sign away their rights in order to get medical care," he said. He pointed out that patients seeking treatment can be particularly vulnerable to coercion. Patients might be in acute pain or facing a life-threatening illness. Such patients are in no position to haggle over the minutia of copyright law.
And it gets worse. The "mutual privacy agreements" promise not to exploit a loophole in HIPAA that allows doctors to sell patient information for marketing purposes. But Schultz said that loophole was closed several years ago. Which means that recent versions of the Medical Justice agreement (including the one I was asked to sign) are lying to patients when they promise more protections than are offered under federal law. The Medical Justice website still claims that patients are "granted additional privacy protections" under the law, but doesn't elaborate or back up this claim.
Schultz had even harsher words for Medical Justice. The organization repeatedly refused to talk to Ars Technica, and Schultz speculates that this is because they "skewered themselves" in previous statements to the press. And he says that the organization's story keeps changing as they've received more and more bad press. Early versions of the MJ agreement flatly prohibited patients from making public statements about the services they have received. Later, he said, they realized that these explicitly censorious provisions looked bad and removed them. But they reserved the right to block patient reviews using the copyright provisions. Now they're refusing to talk to the press at all, but their clients are claiming, implausibly, that they're focused on censoring non-patients.
"There's this question about whether Medical Justice is deceiving doctors," Schultz said, by selling them a product that won't work as advertised. Not only are review sites unlikely to comply with a takedown request, but attempting to take down reviews could expose doctors themselves to legal liability for abuse of copyright law and possibly for violating anti-SLAPP laws.
"Doctors are busy," Schultz said. "Someone hands them a form and says it will solve their problems" with negative reviews. "They're not lawyers." They might have decided to adopt the form without fully understanding the consequences.
The ham-handed response taken by Medical Justice and its clients may also reflect the fact that doctors and dentists are finding themselves suddenly disoriented in a new, more competitive marketplace. "The Internet is the great equalizer." Schultz told Ars. "Other people have had to deal with harsh reviews for a very long time. And finally, an elite profession is also having to deal with it." It's easy to sympathize with the "emotional trauma" of being unfairly criticized on the Internet, he said. But doctors shouldn't be immune from the kind of public scrutiny that most other professions now face.
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