Friday, December 2, 2011

Copyright Infringement: What's This Dentist Trying to Pull?

Seal of the United States District Court for t...Image via WikipediaIn our Internet-savvy society, businesses and providers of professional services have come to expect that their performance will be subject to criticism on a plethora of consumer Web sites. It doesn't appear that Stacy Makhnevich, DDS, received that memo.

Exhibit A, reported by the ABA Law News Now blog, is a 19-page complaint filed by Public Citizen on behalf of  former New Yorker Robert Lee, now of Huntingtown, Md., against Dr. Makhenvich in the United States District Court for the Southern District of New York. The potential class-action suit, Lee et al. v. Makhnevich & Aster Dental et al. (Case No. 11-cv-8665) involves a $4,800 bill Lee received after the defendant drained and filled a tooth that was causing Lee pain, a procedure the plaintiff alleges should have cost more in the neighborhood of $200.

Lee vented on Yelp! and other online sites to protest the bill and to tell consumers "avoid at all costs!" when it came to Dr. Makhnevich. What makes "TUOL"'s media law sense tingle about this dispute is Dr. Makhnevich's practice of not treating patients unless and until they have signed an agreement waiving their rights to comment online about her services and assigning the copyright to any online comments to Dr. Makhnevich, for which, in turn, she promised not to market confidential personal information about her patients, according to allegations in the complaint.  Dr. Makhnevich sued Lee for copyright infringement, based on his online comments, seeking $100 a day in damages.

Plaintiff's counsel argues that the purported contract is unconscionable and unenforceable as it stifles Lee's First Amendment freedom of expression by misusing copyright laws.  Pursuant to 17 U.S.C. sec. 107, the plaintiff contends his comments are protected by the fair use exception to copyright infringement. Moreover, the plaintiff alleges the contract at issue is wanting for lack of consideration because Dr. Makhnevich already is precluded under federal law from sharing patient information with marketers by HIPAA (Health Insurance Portability & Accountability Act).

"TUOL" predicts the court will yank Dr. Makhnevich's contract in one swift motion on First Amendment grounds. File this story under the heading: Always Sue Your Dentist Once a Year.

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