Using The DMCA To Stop Patients From Rating Their Doctors

from the signing-over-your-rights dept

Last month, Carlo wrote about how a number of doctors were pushing their patients to sign waivers, promising that they wouldn't review the doctors online -- and that one company would go around trying to enforce these waivers and get critical comments pulled down from ratings sites like RateMyMD.com. The whole thing seemed quite odd -- but in another article about the service (found via Michael Scott), the details make it clear that this is even more questionable than we previously thought. That's because the way the "waivers" from the company "Medical Justice" work is by having the patient "assign all intellectual property rights for anything the patient may write (and publish) about the physician to the physician." Then, the physician can claim copyright infringement on any review, and force it offline. So unlike what was implied in the original article, it wouldn't be a specific contractual issue, but a copyright issue.

This is not what copyright law was intended to do.

Of course, it does bring up a few interesting points of discussion. First, is that the main purpose of using copyright here is so that the doctors can make use of the DMCA's notice-and-takedown safe harbor provisions, rather than be stymied by the similar (but not quite the same) CDA section 230 safe harbors for things like defamation. One of the key differences between the two is that Section 230 doesn't have a notice-and-takedown provision (though some have been trying to add one). So, really, all this is designed to do is figure out a way to shift the critical rules in question from the CDA to the DMCA. Sneaky!

Second, is that I wonder if this would be seen as actual copyright infringement anyway, or if reviewers could make a credible fair use defense. In some cases, the review itself might not even be covered by copyright (i.e., if there's no creative expression in it -- such as simple "he's awful!" reviews). In other cases where copyright might exist, the four factor fair use test might allow its use. While it could hurt the doctor's ability to make money as a doctor, it wouldn't be harming the market for the copyrighted content. Also, the use would be for purposes of "criticism." So, it's difficult to see how such content posted on a review site would actually violate anyone's copyright, even if the rights really were signed over.

But... (and this is where that sneaky first part comes into play), this might not matter. Even though you can get in trouble for filing a false DMCA notification (and even for failing to take fair use into account), most online services will quickly pull down content when receiving a DMCA takedown to preserve their safe harbor protections. So in almost all cases, the content will get pulled down, even if the content isn't really infringing. And, then it seems quite unlikely that any reviewer/patient will find it worth the trouble of filing a counternotice.

So, really, this is a fascinating misuse of the DMCA that will live on (unless someone like the EFF decides to make an example of it). What it really highlights is one of the many problems with the DMCA's notice-and-takedown provision, which heavily incentivizes service providers to pull down content as quickly as possible. As a result of that, companies like Medical Justice have tremendous incentives to come up with a plan like this to shift what they do to a copyright issue, solely to make use of the notice-and-takedown provision, even in cases where there's no actual infringement of the copyright.

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Ding Dong, COPA Is Dead

from the dead,-dead,-dead dept

The federal government has been trying to pass a law to "protect the children" online for ages. First there was the CDA, the Communications Decency Act, which was struck down as unconstitutional. Then, there was COPA -- the Child Online Protection Act. It tried to be more narrow... but was still a very questionable law, with rather vague wording. It bounced around the courts for years, including hitting the Supreme Court twice -- which sent it back to lower courts both times. Last summer, the appeals court knocked it down again, and today the Supreme Court refused to hear the appeal... meaning that COPA is about as dead as can be. This is definitely a big win for free speech online.

But, of course, just as COPA followed the CDA, have no fear that politicians looking for headlines and photo ops about how they "protect the children" are working hard on new legislation -- such as DOPA -- the Deleting Online Predators Act -- and will continue to push the boundaries of what sort of speech is allowed online. All this really does is waste taxpayer money on unconstitutional attempts to restrict free speech. And, for what? Recent studies have shown time and time again that the threat to children online is relatively small compared to the hype -- and the best response is educating children, rather than restricting speech for all. Somehow, though, I doubt politicians will recognize that any time soon -- especially when lobbyists for companies that sell filtering tools keep beating down their doors with stories of the horrors of online content.

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Once Again: Court Says That COPA Anti-Porn Law Is Unconstitutional

from the and-again-and-again-and-again dept

After the Supreme Court rejected most of the Communications Decency Act as being unconstitutional, Congress tried again with the more friendly sounding Child Online Protection Act. It sounds nice. Who doesn't want to "protect the children," right? But it was basically the same thing as the CDA, and court after court has struck it down as unconstitutional. The Supreme Court has already weighed in on some aspects of the law, kicking the case back down to the district level, where the judge noted the law was unconstitutional. The government appealed (of course), and subpoenaed data from just about everyone. You may recall the legal fuss over the government's demand that pretty much every search engine hand over their logs? That was part of the case the government was trying to make -- and about the best they could do was to prove that (gasp!) there's some porn online.

Of course, since porn is legal, proving that there's porn online is hardly a rationale for restricting free speech -- which is what COPA would do. It would require sites to make sure that either no adult content showed up anywhere on their site, or verify the age of everyone who visited their site. That is quite an extreme limitation on free speech, which is exactly what court after court after court has said. And, now we can add to that the Appeals Court who has now struck down COPA yet again, pointing out that it's a clear violation of the First Amendment and chilling to freedom of speech. It also noted that there's simply no reason that parents can't deal with themselves through the use of filters:

"It is apparent that COPA, like the Communications Decency Act before it, 'effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another,'... and thus is overbroad. For this reason, COPA violates the First Amendment. These burdens would chill protected speech."

Interesting that this comes at the same time that Andrew Cuomo and NY State are bullying ISPs to effectively do what COPA would have demanded. Hopefully Comcast will send Andrew Cuomo a copy of the Appeals Court decision. In the meantime, the Justice Department is indicating that it will appeal to the Supreme Court -- so this case is still not over.

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Once Again: Do Not Send Legal Threats To Companies Because You Don't Like What A User Says

from the both-according-to-the-law-and-common-sense dept

It's getting to be rather silly how many times we've posted about section 230 of the CDA, which protects websites from the actions of their users -- but it seems that there's no shortage of folks with quick legal trigger fingers, who figure that anything they dislike online must be illegal, and they can blame the site that hosted it. The latest example, sent in by an anonymous reader, is that 800Notes, one of many websites that allows users to post notes on random callers (telemarketers and such) discovered that the owner of one company, mynutritionstore, whose phone number was listed on the site sent an angry threat demanding it be taken down, because someone had a negative experience with the company. When 800Notes told the owner of mynutritionstore that it would not remove the negative reviews, he apparently threatened to sue 800Notes. Public Citizen stepped in and sent him a quick legal lesson on the safe harbors provided by the CDA, how anti-SLAPP laws work and also pointed out that his claim that the posts were defamatory is clearly shown to be untrue by the fact that the same demand for a takedown claims that the content is proprietary to mynutrtionstore. If it's proprietary than that would indicate that it's truthful, not defamatory. It's not libel if it's the truth.

So, once again, just because you dislike what someone has to say about you online, it doesn't mean that it's illegal. Also, threatening to sue the service provider for content you dislike generated by users is bound to backfire -- often badly. Hopefully, more people will learn this, and we'll stop seeing these sorts of threats.

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Mark Cuban's Wrong: Porn Filtering On YouTube Doesn't Mean It Loses Safe Harbors

from the porn-ain't-copyright-infringement dept

Mark Cuban has a weird obsession with trying to convince people that YouTube is illegal, despite plenty of evidence to the contrary. His latest discussion on the topic is a real stretch. In response to the bad ruling that gives YouTube log files to Viacom, Cuban is saying that Viacom can now wipe out Google's DMCA safe harbors by showing that the company filters porn.

This is simply incorrect. The DMCA safe harbors do not claim that if you filter any material you must filter it all. Filtering out porn is a different beast than filtering out infringing content. You can tell that porn is porn simply by looking at it. But you cannot tell if content is infringing just by looking at it. It could be put up there on purpose by those who own the copyright. It could be fair use. It's not as simple as just saying that because YouTube removes porn it loses its safe harbor provisions. Also, while not specifically concerning the DMCA, other lawsuits involving the similar safe harbors in the CDA have found that intervening with content on a site does not mean that the safe harbors go away. Having knowledge that some content is porn is quite different than having knowledge of what content is infringing on someone's copyright.

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LendingTree Pressures Blogger To Remove Comments

from the section-230-anyone? dept

You may have heard the story earlier this week about how LendingTree had a security breach as employees were apparently handing out company passwords to mortgage firms, allowing them to access customer data directly. LendingTree is now suing the mortgage firms involved. However, LendingTree is apparently trying to crack down on some of the discussion about all of this. On one blog that wrote about the story, a commenter left a comment alleging that LendingTree doesn't actually "let banks compete" but has its own lending center -- which seems to be based on a class action lawsuit that was filed against LendingTree a couple years ago.

However, LendingTree is now putting pressure on bloggers to remove such comments, mentioning that they're defamatory. Of course, thanks to section 230 of the CDA, a blogger is not responsible for defamatory content left by others (they are still responsible for their own defamatory content, of course). While it doesn't appear that LendingTree's legal notes have entirely reached the level of a cease & desist (more like a legalistic nudge), it does sound like they've convinced some other bloggers to remove content that need not be removed. And, of course, by claiming that the content is defamatory, it may scare some bloggers who don't understand their section 230 safe harbors to feel obligated to remove the content.

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Appeals Court Says Roommates.com Doesn't Qualify For Safe Harbors

from the uh-oh dept

Lots of folks were surprised last year when the 9th Circuit court ruled that Roommates.com didn't qualify for section 230 safe harbors. Section 230 of the CDA, as you hopefully know, protects service providers from the actions of their users, and the ruling last May would potentially limit those protections. Until then, courts had generally interpreted the service provider clause quite broadly (reasonably so, in my opinion). Last fall, the court agreed to ditch the original ruling and rehear the case with an 11 judge panel. While that was happening, in a similar case against Craigslist, the 7th Circuit found that Craigslist was covered by the safe harbors and was not responsible for discriminatory housing posts.

However, it looks like the full panel on the 9th Circuit has decided to buck most other courts on this matter and is siding with the original ruling saying that Roommates.com is not immune from liability for discriminatory postings by its users. The reasoning seems to follow along the lines of the earlier ruling, that Roommates.com gave up its immunity by putting checkboxes and pulldown menus that allowed users to choose discriminatory options -- thus, actively taking part. In fact, the ruling makes it clear that by placing these options and effectively asking discriminatory questions, Roommates.com goes past being a service provider and becomes a content creator itself. Three out of eleven judges disagreed and dissented, claiming that this goes against the basic language of section 230. What's clear is that this issue isn't done yet, and there are going to be a lot more cases coming down the road (and some may target this court, seeing it as more "favorable" to these types of cases).

While it's always a little worrisome when a court tries to limit the coverage of these safe harbors, you can understand where the majority opinion comes from. Roommates.com isn't a neutral party, it claims, because: "Roommate does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate’s work in developing the discriminatory questions, discriminatory answers and discriminatory search mechanism is directly related to the alleged illegality of the site." However, the dissenting opinion makes some very good points, noting that the majority seems to mix and match two separate issues: (1) is there discrimination and (2) is Roommates.com liable for any discrimination -- and as such, finds the discrimination (which isn't what the lawsuit was about) and then assigns the blame to Roommates.com. Basically, the dissent is saying that the majority got blinded by the discrimination (without making a legal determination if there really is discrimination) and let that confuse them into assigning liability where it doesn't belong.

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Judge Tosses Out Lawsuit Against Citizen Journalism Site

from the safe-harbors-strike-again dept

Back in November of last year, we wrote about a citizen journalism site in Vermont that was being sued for content posted on the site. As we noted at the time, it seemed quite clear that the site itself was protected by section 230 of the CDA, which provides a safe harbor for sites, preventing them for being liable for content contributed by users. It would appear that a judge agrees and has dismissed the lawsuit, citing the safe harbor provisions of the CDA. Another victory for falsely blamed sites.

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Selling Illicit Phone Records Not Protected By Safe Harbors

from the a-little-more-involved dept

We've talked about the importance of "safe harbors" protecting service providers from the actions of users. Too often, companies go after service providers because they're easier to target and because they have more money -- but they're not the ones actually breaking the law, and making them liable for the actions of their users would be an incredible burden on any company that allowed users to do... well... anything. However, a recent ruling has shown one limitation to the section 230 safe harbors found in the CDA: if you're selling illicit phone records that were obtained via pretexting, you are still liable, even if you didn't do the pretexting yourself. In this case, a company called Accusearch offered to sell phone records, but contracted out the actual pretexting work to obtain the phone records. So, when the FTC came calling to fine Accusearch, it claimed that it was protected under section 230. As Eric Goldman explains in the above link, some of the court's reasoning was a little suspect, even if it came to the right conclusion at the end. One key point as to why this is different? This wasn't about "users" generating content that was potentially a problem. This was a company specifically buying and then reselling content -- so it was clearly a part of the process. If, say, a similar service opened up where it was simply bulletin boards where people posted illicitly gained phone records (or the ability to get them), then the company might have retained safe harbor protections.

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Circuit Court Ditches Ruling Opening Roommates.com Up To Blame For Ads Posted By Users

from the let's-rethink-this-a-moment dept

Earlier this year, plenty of people were quite surprised by a ruling of the 9th Circuit that seemed to go against what almost every other court had said about the safe harbors provided to internet service providers for the actions of their users under section 230 of the Communications Decency Act. The case involved the website Roommates.com, which allows people (not surprisingly) to put up ads looking for roommates. The problem (according to the lawsuit) is that some people posting roommate ads included requests that could potentially violate the Fair Housing Act. Where the ruling got tricky was that it basically said section 230 protections existed only where structured data wasn't collected. However since Roommates.com offered both pulldown boxes and allowed users to search on certain characteristics, it was no longer protected by section 230. But this potentially opened up a ton of problems and had a variety of legal experts scratching their heads. So, it's no surprise that they're happy to see the 9th Circuit now toss that original ruling out, to be reheard by an 11 judge panel. No matter when that happens, the original ruling can no longer be used as a precedent. This is a good thing, as the safe harbors protecting service providers from the actions of their users is certainly a good thing -- and the net result if this ruling did stand is that fewer sites would be willing to accept any kind of structured data, for fear of losing their protection. Also, considering how confused various legal experts were after the original ruling, you have to figure that it's at least a good idea to take a second look and rethink or, at the very least, clarify the original ruling.

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Court Rules That Anti-Spyware Companies Can Call Spyware Spyware

from the what's-in-a-name dept

All too often, we've seen cases where security software firms were sued for calling some piece of software "spyware" or "adware." In fact, Microsoft even wanted to make sure that new anti-spyware legislation would make it clear that there's nothing wrong with calling spyware "spyware." However, in the latest ruling on one of these cases (in which Zango sued Kaspersky), the ruling makes it clear we already have such a law on the books. The judge dismissed the lawsuit, noting that security firms have every right to label software as they see fit, citing part of section 230 of the Communications Decency Act.

We often point to section 230, because it protects service providers from liability for the actions of the service providers' users. However, this is referring to a different part of section 230, which says that no service provider is liable for a good faith attempt to restrict access to something it deems objectionable. The court felt that the security company was a service provider, and that since it believed Zango was objectionable, then it has every right to try to restrict it. The court makes a second very important point. Zango complains that its software is not objectionable, and therefore the security providers cannot block it as objectionable. However, the court points out that the statute clearly says that it's for what the service provider finds objectionable. In other words, the content in question need not be "objectionable" at all -- it only matters what the service provider feels about it. This is a pretty strong endorsement for the idea that security companies absolutely can call software whatever they feel is appropriate.

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It's Time To Harmonize Service Provider Safe Harbor Rules

from the because-confusing-rules-are-bad dept

Eric Goldman points us to a relatively recent paper by Mark Lemley that takes a look at internet safe harbors for service providers. Lemley agrees with many of us around here that safe harbors make perfect sense, since there's no reason to put the liability on a third party who is simply providing a service, rather than the person actually breaking the law. However, his complaint is that there are different safe harbor rules written into different laws and they have different requirements. For example, copyright safe harbors are a part of the DMCA and require a specific process to receive protection. Safe harbors for libel, however, are in the CDA and work differently than the ones in the DMCA. Since the purpose of both safe harbors is the same, it makes sense, as Lemley suggests, that the various safe harbor rules be put under a single umbrella and harmonized. It's such a reasonable idea it'll probably never happen.

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