Doctors Possibly Being Urged to Seek Copyright Assignment for Censorship

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.

4 Replies to “Doctors Possibly Being Urged to Seek Copyright Assignment for Censorship”

  1. It also would make sense that, when you are being treated by a a doctor, you demand in writing an agreement that the copyright of any pictures taken of your [fill in the blank] be assigned to you and that (b) any requests that said images be used for educational or publishing applications, whether in refereed medical journals or in commercial textbooks or educational digital products, be cleared first with you, and that you will maintain the right to negotiate a fair market rate for the use of such images.

    1. Oh, I like that. Simple, in the same spirit, and just as likely to give the care provider pause as what Medical Justice is doing should for the savvy patient. I’ll remember that in case I ever see one of these clauses.

  2. This kind of tactic creates a classic contract of adhesion, and courts generally disfavor such things, especially in the consumer context. So while it’s a clever theory, I’m not seeing much traction in practice (get it? Traction? Doctors?… nevermind).

    This coupled with the fact that the assignment clause also lacks any real consideration (save for the absurd notion that medical care somehow equates to consideration in exchange for a copyright), smacks of a bunk bill of goods sold to the doctor members from the Medical Justice folks.

    Also, just a pro-tip when it comes to contracts: you always have the right to cross out aspects of a contract that you don’t agree with. Just because it says ‘You need to comply with X, Y, and Z’ doesn’t mean you have to agree with Z. Of course, if the doctor decides that Z is mightily important he can refuse to treat you, and that’s his right. But most medical professionals likely aren’t committed enough to some blanket clause on a form contract as compared to a real, breathing human standing there willing to pay them for services rendered.

    1. I am glad to have a lawyer confirm my suspicions about this sort of tactic being unsustainable. I still fear that we may see others try it, regardless, as Sanford suggests. The same criticisms apply to click-wrap licenses but those are still prevalent. I think there is a non-legal aspect, more of a normative consequence. Folks don’t bother to read the contract and more critically educate themselves about what is and is not bunk. The net effect may still be to stifle speech even if the mechanism for doing so isn’t necessarily legal or even enforced through a contract action. Simple fear and ignorance could forestall someone who might otherwise share critical comments about a provider.

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