A Tough Assignment: The Use of Copyright Law to Squelch, and Preserve, Negative Online Reviews of Doctors and Lawyers

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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There are few things more terrifying to a doctor, lawyer or other professional than a bad online review.  Online reviews are frequently uncivil, often indelible and in some cases outright false. Meanwhile, Section 230 of the Communications Decency Act often provides immunity from defamation suits to internet companies who host this content, thus providing little incentive to guard against publishing false reviews.

So how do professionals protect themselves from false reviews?  Well, what if they owned the copyright to those reviews?  This creative strategy is the subject of some interesting pending litigation.

The Case of the Disappearing Dentist

DentistA few years ago, the blogosphere picked up a story about dental patients who were being presented with form contracts designed by a company called “Medical Justice.” The contracts purported to assign to the dentist the copyright in any online reviews the patient might write in the future. Defenders of such contracts would no doubt argue that they merely provide the dentist with a way to remove false reviews from the internet. In other words, if the dentist owned the copyright to the false review, he could send a DMCA takedown notice and have the false review deleted.

But criticisms of these contracts abound.  First, the contracts are not limited to the assignment of false reviews, but purport to assign copyright in all reviews, thus allowing them to be used to squelch negative but truthful speech. Additionally, some assert that the assignments are not enforceable for a variety of reasons.  And even if they are enforceable, there are good arguments that, regardless of who owns the copyright, posting negative consumer reviews online — at least the truthful ones — is a fair use in the public interest.

In 2011, the Public Citizen Litigation Group, attempted to challenge the validity of the Medical Justice contracts in the Southern District of New York by bringing a declaratory judgment action on behalf of a dental patient who signed the Medical Justice form contract, then posted a negative review on yelp.com (http://www.yelp.com), and who was then threatened with legal action by the dentist.  Unfortunately, the case is unlikely to provide any useful precedent because the dentist appears to have gone into hiding sometime after her motion to dismiss was denied, and there may be little left for the judge to do other than to issue a default judgment.

“Psycho-Richard” v. the Ripoff Report

RippoffMeanwhile, another case involving the assignment of copyright to online reviews is brewing in the District of Massachusetts. But this time, it is the author of the review — not the target — who seems to have disappeared.

The plaintiff is Richard Goren, a Boston attorney who was the target of a scathing, and apparently false, online review authored by Christopher Dupont, a former client. Dupont’s review referred to Goren as “Psycho-Richard” and accused him of, among other things, child abuse, domestic violence, drug addiction and “problems coping with his own sexuality.”  Dupont posted the review on the Ripoff Report which, according to Goren, “will not remove a report from its website even if the report is adjudged defamatory.”

In fact, the Ripoff Report has an arbitration program through which it is possible to have the defamatory parts of reviews redacted.  But Goren wants the entire review removed, not just redacted, and he doesn’t want to pay the arbitration fees.  So he instead turned to copyright law. He first sued Dupont in state court for defamation.  Dupont didn’t show up so, as a default judgment, Goren convinced the state court to award him copyright in the negative review. Then, Goren sued Xcentric Ventures LLC, which runs the Ripoff Report, for copyright infringement.

But the Ripoff Report may have beaten Goren to the punch. In order to post the review, Dupont allegedly agreed to the Ripoff Report’s terms and conditions, which included the grant of an “irrevocable, perpetual, fully-paid, worldwide exclusive license.” This license, if enforceable, preceded any assignment to Goren. Goren argues that the Ripoff Report’s license is invalid because its terms and conditions were not adequately disclosed to users.  Meanwhile, the Ripoff Report argues that Goren’s assignment from the state court is an unenforceable “involuntary transfer” under Section 201(e) of the Copyright Act. In short, while Goren is trying to use copyright law to take the review down, the Ripoff Report is using it to keep the review up.

Currently, the Ripoff Report’s motion to dismiss is pending before Judge Denise Casper and a motion hearing is set for February 25, 2014. Judge Casper has a tough assignment (pun intended) because there isn’t too much prior case law on the topic and because arguably both parties are using copyright law for purposes well outside its normal ambit. Also, because of the unique procedural posture of the case, any ruling by the court will probably be interesting but — like the Medical Justice case — unlikely to provide useful general guidance to the online review marketplace.  Thus, we are left still waiting for a good test case, or at least one in which all the necessary parties show up.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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