Cory at Boing Boing links to some investigation by writer Jason Sanford into a distressing quote from a NYT article. Sanford notes two versions of a quote about a group, Medical Justice, seeking to help protect its members from meritless malpractice suits. The original version sketches out a problematic notion, incorporating a copyright assignment clause into a standard form for medical care such that the practice or doctor in question can use the DMCA to demand the takedown of any online posts made by patients in their care that they deem problematic. Unfortunately, the quote has been amended, without any explanation or notice of correction, to a statement saying they advise use of an agreement that gives doctors more control over what their patients online.
I like Sanford’s hypothesis that the NYT inadvertently guessed a trade secret and had to edit the quote accordingly. The second quote is hardly any better, if you think about it for a bit. It still pretty clearly describes a form of prior restraint. Any condition on service that constrains free speech, regardless of the mechanism, is suspect. I appreciate the goal, of trying to reduce the cost to practice by addressing the underlying cause of one of those costs, malpractice and the insurance necessitated by it. Using any form of censorship to that end is a dangerous idea.
Copyright has been harnessed to ill considered ends like this before. Sanford’s suggestion that some other profession might try this is reasonable (the suggestion, not the inappropriate usage itself.) I suspect it will be enabled by burying the assignment language within a barrage of disclaimers and legalese, much like the dense verbiage on which click through licenses depend. These secondary uses, and in many cases the markets around them, for copyright enforcement that have little if anything to do with promoting creativity and rewarding creators concern me greatly. So far many of them have proven difficult to stop let alone reverse.