Both Physician and Patient will work to prevent the publishing or airing of commentary about the other party from being accessed via Internet, blogs, or other electronic, print, or broadcast media without prior written consent.
So, if Greg Gossip starts blogging about Pete Patient, who has recently signed such a contract, it would appear to be up to Dan Doctor to put a halt to Gossip's careless commentary, or indeed any public commentary about Patient whatsoever. That looks like a minimum of 3 years' worth of reputation management services, and comes without any restrictions on judicial forum or dispute resolution in the event of any disagreement about the issuer's failure to perform.
All I have to do is keep my own trap shut, and I get my very own Internet White Knight/PR agent? SIGN ME UP.
On the other hand, what constitutes "working to prevent the publishing or airing of commentary" may well be fairly minimal. I can imagine a response of "we wrote to the publisher and asked them to not publish anything about you again." I certainly would be wary of any contract with a PR agent which imposed so little in the way of concrete obligations. Even if you are able to enforce this condition so as to require serious effort by the physician, they will be able to enforce a similarly burdensome condition on you in retaliation.
One thing worth noting: Doctors aren't able to respond to reviews at all. If a patient posts a completely baseless, factually untrue review of a doctor, the doctor cannot say anything due to privacy laws regarding the patient. This is in comparison to local businesses on a site like Yelp, where a business is allowed to talk about a customer's situation if the customer posts something defamatory. The doctor's only recourse in such situations is to sue the patient, something which is a) expensive b) time consuming and b) generates bad publicity. Not saying that patients should be forced to sign such agreements, but it's worth noting that the playing field is not level.
That is not entirely true. HIPAA rules pertain to individually identifiable health information - one must be able to use the information and identify the person it is connected to.
Online reviews are typically anonymous in nature, and the average person reading them would likely not know the actual identity of the individual by the person writing it or the physicians response.
But what is 'personally identifiable'? Say a patient had a complaint about the cost of a visit, and stormed out of the office saying 'screw you' in the waiting room, and the review noted this. Other patients who were in the waiting room would likely be able to identify the patient. Would a doctor responding to the (anonymous) complaint, noting details about a patient's illness constitute personally identifiable information?
It's not easy from a doctor's perspective to identify such situations, and it's a very sticky area. Given that it's a sticky area, do you think any doctor would risk crossing the line? There are large legal risks involved here.
Agree on the messed up, but I'm not so sure about the hoping it gets tested -- it could go the other way.
What's really insidious about this (obvious -- but I have to rant) is that the general public really doesn't understand copyright, and if this signing over of full copyright (vs. partial -- right to sue -- overturned in that recent righthaven) is held up, this could become standard practice for all doctors and even other services. I know I'd never sign one of these, but I'm betting most people who aren't aware will just sign it away and won't even think about it.
Any copyright lawyers out there who can talk about any kind of precedents with this that might apply? (BTW: Seems like the EFF site is currently down? Read part of the article and now that I'm going back site won't load)
IANAL, but I've spent some time on these topics, and in the end the only thing that matters is the result of some court case. But non-authoritatively:
It seems to me that if you were willing to go to court and defend yourself, you'd have a very strong case that posting your review is covered under fair use. Of the four factors of fair use testing [1] (which is to say, I'm talking about real fair use and not the nebulous Internet "I can do whatever I want with whatever I want if I just say the magical words 'Fair Use'" version), the purpose of the use and nature of the work are probably solidly on your side, and there is definitely no damage to the market value of the work (bearing in mind that refers to the value of the review itself, not any effect it might have on the doctor's practice), to the extent that I can say "definitely" without a legal ruling. The problematic case is that you'd be posting the totality of the work in question but I suspect it would not be hard to find a judge that would still agree that your First Amendment rights overrule that concern, especially given that we're talking about a commercially effectively-worthless work and it's not very large.
I'm not sure fully owning the copyright is really enough to prevent people from posting a review. I also would imagine a strong case could be made for even going back behind the standard 4 fair use factors and returning to the reason they were created in the first place, which is that while the Constitution grants Congress the right to write laws about copyright, free speech is in the First Amendment and where there are conflicts, the amendment wins, at least in theory. The fair use tests are intended to harmonize the two. Use of copyright as a speech restraint is a fundamental perversion of the whole system, not just morally (which doesn't really matter to this analysis) but legally.
I speak solely on the matter of copyright assignment; if the contract contains other non-copyright restrictions on posting reviews I have no opinion at all, even if I could see them. I am also not addressing the possible ways in which this could be considered an invalid contract clause in general, such as [2].
Yeah, I saw this on the Canadian CBC National news last night. The company must obviously be in a PR push right now.
If a doctor ever asked me to sign something saying to keep my opinions to myself, I would simply not use that doctor. If they were good, they shouldn't worry about what people will say about them.
If they were good, they shouldn't worry about what people will say about them.
While this should be the case, I don't like this argument because it reeks of the "what do you have to hide?" argument used against privacy protections. The problem isn't the good doctors, it's the bad doctors.
If I need medical care and that clause is paragraph 11 in the small print on the back of the patient check-in form, it's pretty doubtful I'll even notice that I agreed to it.
I'd love to see an example of how this gets used by doctors in the wild, to make it easier for me to protect myself against such absurdity.
That said, if my PCP asked and I had pressing medical concerns, I'd despise making the choice of 'free speech' versus 'need medical care', but I'd certainly choose the medical care.
Contracts aren't enforceable under duress or coercion. If you have pressing medical needs you aren't in the mental state to agree to anything. Practically any lawyer can get an agreement like that tossed in a minute.
This is why pre-nups become unenforceable once someone gives an ultimatum (ie. Sign this prenup or I won't marry you) and why both parties will have lawyers.
Heard about this last year at a Defcon panel. Some doctor doing 'hugging therapy' for children that kept getting people's reviews and forum posts removed with DMCA
I'm a doc. I have no idea of the legality of such "contracts", but it doesn't matter - such a practice is completely unethical.
Nor is it going to help a physician when a patient makes a complaint to your medical licensing board.
If you're doing your job as a physician you aren't a "provider" to "consumers" - you are hopefully a professional working in the best interests of a patient or population of patients regardless of your own personal interests - this horseshit obviously has nothing whatsoever to do with that goal.
This is where the medical community as a whole, including medical-licensing boards should get together and look at the long-term negetive impact of such ethically dubious practises of a few doctors.
If this goes ahead, every member of the medical community would suffer due to the taint caused by a few rotten apples.
I'm a doc from The Netherlands so can only comment on our system. Here when you file a complaint it will be sent to a local commission first. This commission consisting of doctors will look at the viability of your complaint. This commission consists of doctors working in the same field as the doctor whom possibly did something wrong but cannot have close relations to the doc being investigated. If they see a valid case they will send it to a medical court consisting of doctors (3) and legal professions (2) who will judge the case.
So if a way it is like 'complaining about the police to the local sheriff'. However all commissions consist of multiple people from different hospitals. I don't think it's a 100% fail-proof system but by having MDs look at the case first a lot of cases that will never ever lead to a penalty will be filtered out.
I am not a doctor but am very much involved in health care and have worked in a major medical center for more than a decade. From what I've heard, complaints to review boards are taken very seriously.
Ah, the EFF. Self-proclaimed defender of copyright, yet completely clueless when it comes to contractural rights...
The post refers to a non-disclosure agreement, not a copyright assignment. The whole point of the business model referred to is that patients can't even voice any opinion about the doctor, so it never gets to the stage where "copying" is an issue .
"If Patient does prepare commentary for publication about Physician, the Patient exclusively assigns all Intellectual Property rights, including copyrights, to Physician for any written, pictorial, and/or electronic commentary. This assignment is in further consideration for additional privacy protections provided by Physician. This assignment shall be operative and effective at the time of creation (prior to publication) of the commentary."
But it is fair to point out that you are correct that there are many non-copyright related clauses as well. You just aren't right about it being unrelated.
Both Physician and Patient will work to prevent the publishing or airing of commentary about the other party from being accessed via Internet, blogs, or other electronic, print, or broadcast media without prior written consent.
So, if Greg Gossip starts blogging about Pete Patient, who has recently signed such a contract, it would appear to be up to Dan Doctor to put a halt to Gossip's careless commentary, or indeed any public commentary about Patient whatsoever. That looks like a minimum of 3 years' worth of reputation management services, and comes without any restrictions on judicial forum or dispute resolution in the event of any disagreement about the issuer's failure to perform.
All I have to do is keep my own trap shut, and I get my very own Internet White Knight/PR agent? SIGN ME UP.