The Insane Case of the Dentist Who Tried to Censor Yelp Reviews with Copyright
When copyright was misused so badly that it became plain old censorship.
Image: Flickr/La Citta Vita
It's not often that a dentist tells you to shut your mouth.
The case of the New York City dentist that tried to copyright her patients' negative Yelp reviews in a bid to silence their complaints is truly insane. But the thing is the case isn't really about copyright at all—it's about censorship and bullying.
Here's a rundown of what happened: In 2011, Robert Lee filed a class action lawsuit against Stacy Makhnevich, his dentist in New York City, on behalf of "all others similarly situated" after she threatened to file for copyright infringement on Yelp posts he made trashing her business practices. She also filed DMCA takedown requests—notices that require websites to remove copyrighted material—for the postings she maintained she held copyright over.
Makhnevich's threats and actions were based on an agreement she required Lee to sign before treatment that guaranteed she would not give his information to marketers in exchange for copyright on any online comments he might make about her practice. The agreement was drafted by a shady company called Medical Justice Corp., which the Center for Democracy and Technology requested the Federal trade Commission investigate in 2011 for helping dentists and doctors effectively silence patients. The company has since stopped offering those services.
Lee claimed that his comments were allowed under fair use provisions, which allow for criticism and parody.
After a ton of legal maneuvering and a 2012 request by Makhnevich that the case be dismissed because she never formally registered copyright over Lee's comments in the first place—it was denied—Paul Crotty, the judge presiding over the case, finally ruled in Lee's favour last week and required Makhnevich pay $4,776 in damages.
That could be tricky to follow up on, since Makhnevich has been on the lam since 2013, Ars Technica reported.
"This lawsuit about a toothache and a dentist's attempt to insulate herself from criticism by patients has tumed into a headache," wrote judge Paul Crotty in a 2013 order. I feel you, Crotty.
But was this really a case of copyright at all? Not really. Copyright law was wielded so irresponsibly and loosely here that the case boils down to simple bullying and threatening on Maknevich's part. You see, Makhnevich's initial agreement with Lee was so fraudulent that copyright wasn't even the case's core issue.
According to Parker Higgins, director of copyright activism for the Electronic Frontier Foundation, most copyright experts following the case believe that fair use, Lee's main defense, shouldn't even apply because of the blatant copyright misuse on display.
"It's not new for people to try and use copyright as a way of censoring speech they don't like," said Higgins. "I think this is on one extreme end of really trying to bang copyright into shape to fit in a situation where it was never supposed to. I think the judge recognized that."
"Obviously, copyright law is not meant to stop people from posting online reviews—you can't hack around that as a dentist," he continued.
In that sense, copyright in this case was misused to the point of unrecognizability—really, it was a tool for censorship. According to Higgins, businesses and politicians sometimes fall back on faulty understandings of copyright law (perhaps intentionally) to silence speech because it's an expedient tool. For instance, Higgins said, a politician might claim to hold copyright on a news clip of them saying something idiotic in an effort to stop its spread, even when they don't.
These cases—Makhnevich and Lee's included—are of a different kind than the unfounded copyright claims that result in, say, a site for collective coding being targeted by porn companies. More often than not, this kind of activity is due to a net cast too wide on legitimate infringements or plain old accidents. That is clearly within the realm of copyright law, however misguided.
"Often, they are well-meaning and are trying to help rights holders navigate the fact that stuff can be made available very easily online," said Higgins. Indeed, Makhnevich's case is something different.
"That creates different problems than this kind of bad faith silencing speech effort," Higgins continued. Instead, it was a case of, as judge Crotty put it, "aggressive and threatening conduct" with copyright law used merely as a veil.