Go to the doctor, lose the copyright to your writings

Today's New York Times has an interesting article about people being sued for critiquing businesses online. Most of the article deals with those crap-filed strategic lawsuits against public participation (SLAPPs), but what really caught my eye is an item on page 2 halfway down the article. To quote:

"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." (See update at bottom for more on this quote.)

Are you freaking kidding me? As a writer, I have a good bit of interest in protecting the copyrights to my works. And now if I go to my doctor I might be asked to sign over my copyright to the M.D.! Hell no!

According to a page on the Medical Justice website, it appears the NY Times article is correct. While the Medical Justice website doesn't publicly state that doctors should take the copyright from people, the site does say that their "solution" means that "Patients are free to post online. In the rare event the feedback is not constructive, doctors have a tool to address fictional or slanderous posts."

That tool? Likely a DMCA takedown notice. If a patient has signed over the copyright to their online writings to their doctor, all the doctor has to do is flash that signed document to the offending website and the nasty words will be removed. No lawsuit and no fuss, at least for the doctor.

Medical Justice and the doctors using this copyright grab will likely defend their actions by saying it only applies when someone mentions their doctor or practice in their online writings. But I doubt the legal document which transfers copyright is that specific. For example, the Medical Justice website states their "solution" gives doctors a way to "address fictional or slanderous posts."

Fictional? Does this mean that if my novel includes a doctor as a character then my real doctor can claim that novel's copyright? Could be. After all, if the legal document addresses fictional posts, then the doctor could claim that the character is really him. Plenty of people have sued fiction writers for similar reasons, and if your doctor has a form giving him your copyright ... well, you get the idea.

Perhaps that is far-fetched. But the simple truth is that signing over the copyright to your writings is a bad idea for any writer--especially when you are not being paid to do so and must do it to receive medical care.

I hope writers raise a stink about this. Because if Medical Justice and doctors' groups succeed in making this copyright form the standard for receiving medical care, you better believe other professional groups and businesses will soon do the same. And if that happens, all bets are off for both freedom of speech and the ability of writers to own the copyrights to their works.

UPDATE: Around 11:00 pm tonight I noticed the NY Times had changed the quote I referenced above. Their article now reads:

"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 they haven't posted one. I'm kicking myself for not having copied the original article. However, others noticed this same quote, including The Legal Satyricon and this blog, which posted the original article. 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 Medical Justice's "tool" for dealing with online criticism. Either way, it is still disturbing that doctors would do this 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.

UPDATE 2: I have written a longer post about the Times making this change without a correction notice or explanation. This is extremely poor journalism on their part.

Comments

[SMD]

Wow. Now that's some slimy underhanded BS right there. Thanks for ruining a potentially good day...

[Dylan Fox]

Surely a more efficient system would be to just have the doctors write the reviews themselves. Or hire someone to do it for them--doctors are busy people, after all.

To hold people's health hostage over something like this makes me sick (no pun intended). You don't get a choice in whether you're sick or not, so you get no option of 'opting out'.

Glad I don't live in the US right now. I really hope this idea gets dropped and flushed down the drain like it deserves.

[Jason Sanford]

Not trying to depress people here. And it's quite likely this wouldn't stand up in court. But then again, it might. And with the way websites and internet service providers stand up and salute DMCA takedown notices, this could cause a lot of trouble for a writer.

The point is we shouldn't have to give up our free speech rights--or the copyright to things we write--in order to see a doctor.

[Jamie]

Reason #673 to actually read things before signing them.

Remember that you can strike bits you don't like. The doctor or the gatekeeper/clerk can balk, which is of course their right, at which point you'll have to decide how much it is worth to you.

But don't think you have to meekly accept it. You can also educate other patients - Americans, not uniquely but rather vociferously, value their right to complain and whine, and if you present it to people who otherwise might not care about something seemingly esoteric as "be careful of doctors who want to take away your right to tell others about poor service", you might make headway.

[Hugh Wood, Esq.]

I am a lawyer. I read the NY Times Article and have been thinking about posting some Slapp litigation material from my own state. However, I find myself wondering how the Drs. can "grab" comments from their patients under the DMCA? I suppose as a matter of contract it would legal, but it is so offensive. How can this be attacked? No doubt these are "adhesion contracts." "Um, like I know I am bleeding and I need to check into your clinic, but I would like to 'negotiate' this Copyright clause before I sign your admission form." Sure.

[Dick Mills]

"I'm also wondering if the NY Times accidentally revealed the trade secret to Medical Justice's "tool" for dealing with online criticism."

I'm more paranoid, and cynical, so I'm wondering if the NY Times had to sign away their copyright ownership of comments related to Medical Justice as a requirement of interviewing them, and as such, was met with swift retaliation for having posted a comment that (correctly) besmirched Medical Justice's "reputation."

[Langdon]

Bizzare - reminds me of the usual reaction to whistleblowers, dont fix the problem but make it illegal/sackable for people to blow the whistle, eg. after something is caught on camera, instead of fixing the problem, they ban cameras.

[KS Augustin]

I always save copies of items from online editions of newspapers. I've seen way too many interesting articles get pretzeled out of shape after something's slipped out.

[Travis Dixon]

Wonder if signing something like this in order to receive medial attention counts as signing something "under duress"? That usually invalidates most contracts...