UPDATE: Opera-Singing Dentist Flounders in Copyright Aria

 (Photo credit: Wikipedia)

In his pun-filled, 10-page decision in Lee v. Makhnevich (Case No. 1:11-cv-08665, 2013 WL1234829 (March 27, 2013)), United States District Court for the Southern District of New York Judge Paul Crotty recently denied defendant dentist Stacy Makhnevich's motion to dismiss a potential class action suit challenging a Mutual Agreement to Maintain Privacy ("MAMP") form she forced patients to sign as a precondition to treatment that barred online criticism of her work.

As previously reported here (see "TUOL" post 2/2/11), consumer advocacy group Public Citizen filed suit in 2011 on behalf of Huntingtown, Maryland's Robert Lee and his confederates (sorry) claiming patients were entitled to post negative reviews on Web sites such as Yelp! and DoctorBase, as Lee did, pursuant to the fair use exception under the Copyright Law [17 U.S.C. sec. 107].

Dr. Makhnevich, whose Web site notes her skills as a dentist and opera singer, treated Lee in 2010, draining and filling a tooth that caused him discomfort. She insisted that he sign the MAMP form contract sold by North Carolina-based Medical Justice, which required patients to waive public comment about dental services and assigned to the dentist the copyright of any online comments. Lee defied the agreement and criticized the defendant's office over the amount of the bill and for allegedly not submitting reimbursement forms to his insurance carrier.

Attorneys for the dentist threatened to sue Lee for $100k for defamation, breach of contract and copyright infringement, subsequently sending him invoices assessing copyright infringement damages of $100 a day. Public Citizen not only attacked MAMP as violative of patients' First Amendment rights and the fair use exception, but questioned the validity of the contract overall, claiming the dentist's promise not to sell its patients' names to marketers in exchange for the patients' promise not to post online comments was illusory because dentists already are barred from selling patients' names to marketers without the patients' consent under HIPAA (Health Insurance Portability & Accountability Act).

Judge Crotty did not hide his disdain for defense counsel's argument that the suit should be dismissed because it stated no legal claim because no actual controversy existed. "Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for getting dental treatment," Judge Crotty wrote. "[U]nder the totality of circumstances, the controversy is sufficiently 'real' and 'immediate.' Defendants cannot pretend now that their notices to Lee were 'just kidding,' or that Lee lacked any reasonably apprehension of liability."

Judge Crotty further anesthesized Dr. Makhnevich's position, writing: "This lawsuit about a toothache and a dentist's attempt to insulate herself from criticism by patients has turned into a headache. After appealing to his dentist for pain relief, Plaintiff Robert Allen Lee, ironically, is appealing to the court for relief from his dentist."

Soon after Public Citizen filed suit, Medical Justice stopped using the MAMP at issue, according to the  Forbes article.  To its credit, Yelp resisted defendant's demand that Lee's negative comments be taken down. The denial of the motion to dismiss is not dispositive of the outcome of the case, but based on Judge Crotty's acid-laced remarks, defense counsel may need a shot of Novocaine to get through this case.

UPDATE: Mich. App. Ct. Delays Law School Unmasking of Anonymous Blogger

Thomas M. Cooley (Photo credit: Political Graveyard)

In Thomas M. Cooley Law School v. John Doe 1 et al. (Case No. 30742628), the Michigan Court of Appeals for the Fourth District this week reversed and remanded a trial judge's refusal to grant a protective order to an anonymous poster critical of the independent law school's placement statistics.

The ABA Journal Law News Now blog reported about the appellate court's 28-page decision that concluded the trial court wrongly failed to address why it denied blogger Rockstar05's request for a protective order against the law school's subpoena seeking the blogger's identity. The appeals court ruling also found the trial court wrongly decided that the alleged per se defamatory statements regarding criminality were not subject to First Amendment protection.

Rockstar05, a purported former Cooley student, criticized the school on his blog on the Calif.-based Weebly Internet Service Provider in July 2011 (see "TUOL" post 12/14/12). The unnamed poster allegedly characterized Cooley's job placement data as "criminal" and a "fraud," and allegedly branded the institution a "diploma mill" and one of the nation's three worst law schools, thereby dashing any hopes of ever receiving a school spirit award.

Weebly already has coughed up the information the law school was seeking, but a California judge presiding over the defamation case stayed the release of that data and the California proceedings pending the outcome of Rockstar05's interlocutory appeal in Michigan.  The appellate ruling this week returns the case to the Michigan trial court for a new ruling on whether the defendant blogger may retain his anonymity.

The defendant has pushed for Michigan to adopt a standard akin to one employed by a New Jersey Superior Court in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity.

6th Circ.: Ok YouTube Death Threat Song Lands Singer in 'Sing-Sing'

(Photo credit: Wikipedia)

In U.S. v. Franklin D. Jeffries II (Case No. 11-5722), the United States Court of Appeals for the Sixth Circuit has upheld the criminal conviction of an Iraq/Afghanistan war veteran whose YouTube music video threatened the life of an unidentified judge set to hear a child custody visitation dispute in which Jeffries was embroiled were the unnamed judge to issue an adverse ruling.

In a 20-page decision written by Judge Jeffrey S. Sutton, the appellate court said the vehicle for delivering a death threat was unimportant if a reasonable person perceived the threat as genuine. According to accounts in the Knoxville News Sentinel and the ABA Journal Law News Now blog, Franklin Delano "Dale" Jeffries, a former Army sergeant, sang and rapped a warning that his next court date in a visitation battle with his daughter's mother had better be his last.

"If I have to kill a judge or a lawyer, or a woman, I don't care, cause this is my daughter we're talking about," Jeffries sang. His lyrics also included the phrase: "You don't deserve to be a judge and you don't deserve to live." As a songwriter, the defendant was less Cole Porter than Cole Younger, or more Frankenstein than Jule Styne.

Knox County Chancellor Mike Moyers was slated to hear the custody case in July 2010, the News Sentinel reported, but federal authorities intervened after Jeffries posted his ditty on YouTube and Facebook, and also forwarded it to a state senator and a local television station.

He was sentenced to 18 months in prison. Jeffries was released earlier this year, but has since been sentenced to a year in prison by United States District Court for the Eastern District of Tennessee Judge Thomas W. Phillips for cocaine use and issuing threats of suicide and murder on Twitter, so he's apparently turned his creative juices toward a new medium, at least.

Jeffries' attorneys claimed their client's song was a failed attempt at humor, and in any case, constituted a means of releasing stress that was protected by the First Amendment. No dice, said the Sixth Circuit. "[O]ne cannot duck (the law)," Judge Sutton wrote, "merely by delivering the threat in verse or by dressing it up with political and protected attacks on the legal system."

For the immediate future, it looks as if Jeffries' repertoire of songs may be confined to Prisoner of Love, Jailhouse Rock and the country & western classic: They May Put Me in Prison, but They Can't Stop My Face from Breakin' Out.

9th Cir. Rejects Mag's 'Fair Use' Claim in Publishing Pop Star's Wedding Pix

(Photo credit: Wikipedia)In a 2-1 decision, the United States Court of Appeals for the Ninth Circuit this week in Monge et al. v. Maya Magazines, Inc. et al. (Case No. 10-56710) reversed a lower court ruling that accepted a gossip magazine's fair use defense in publishing without permission a Latina pop star's wedding photos.

As reported by the ABA Journal Law News Now blog, the 47-page decision written by Justice M. Margaret McKeown ruled against Maya's TVNotas magazine, which in 2009 published the private Las Vegas wedding photos of actress/singer Noelia Lorenzo Monge to Jorge Reynoso that purportedly were provided to the defendants by the couple's sometime chauffeur/bodyguard in 2007. The lovebirds sought to keep the marriage on the Q-T to preserve Monge's sexy single star image.

The defendants offered a fair use defense to the plaintiffs' copyright infringement claim, arguing the photos of the celebrity were newsworthy, but Justice McKeown wasn't buying it. "Waving the news-reporting flag is not a get-out-of-jail-free card in the copyright arena," she wrote. According to Justice McKeown, "Maya's effort to document its expose does not automatically trump the couple's rights in its unpublished photos."

In a stinging dissent, Justice Milan Smith, Jr. argued the majority's opinion would have allowed Tiger Woods to assert copyright privilege over his notorious sexting messages and former U.S. Rep. Anthony Weiner to prevent media use of his Tweeted crotch photos.  According to the dissent, the majority ruling "undermine(s) the free press and eviscerate the principles upon which copyright was founded. Although newsworthiness alone is insufficient to invoke fair use, public figures should not be able to hide behind the cloak of copyright to prevent the news media from exposing their fallacies."

Media Outlets Sue to View Executions

Seal of the United States Court of Appeals for the Ninth Circuit. (Photo credit: Wikipedia)Despite a decade-old precedential ruling by the United States Circuit Court of Appeals for the Ninth Circuit, Idaho and four other Western states have denied uninterrupted access to witnesses to the execution of  inmates.

That is the claim of the Associated Press and 16 other news media outlets that have sued Idaho for access, following last November when authorities prevented journalists from observing the first part of the execution of Paul Ezra Rhoades by lethal injection, according to the ABA Journal Law News Now blog. Washington, Montana, Arizona and Nevada are also being taken to task for denying witnesses the opportunity to observe the entire execution of 15 inmates over the past decade.

In California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), an appellate court panel voted 3-0 to affirm a trial judge's permanent injunction barring defendants from prohibiting uninterrupted viewing of executions from the moment the condemned enters the execution chamber until he or she is declared dead from lethal injection. "Independent public scrutiny--made possible by the public and media witnesses to an execution--plays a significant role in the proper functioning of capital punishment," the Ninth Circuit wrote.

Authorities have argued that protecting the identity of executioners for safety reasons is paramount. The Woodford court, however, said blocking access is an exaggerated response to those concerns, which could be satisfied, for example, by having the executioners wear masks.

UPDATE: Nancy Benoit Heirs Ask 11th Circ. to Reinstate $20m Judgment Against Hustler Magazine

Image via WikipediaA three-judge panel of the U.S. Circuit Court of Appeals for the Eleventh Circuit this week heard arguments from the family of the late model/pro wrestler Nancy (Toffolini) Benoit to reinstate a $20 million judgment in their invasion of privacy suit against Hustler Magazine's parent company, Larry Flynt Publishing Group LLC, which published nude photos of Benoit a year after she and her seven-year-old son were strangled by her pro wrestler husband, Chris Benoit, in a murder/suicide in June 2007.

Last June, a jury awarded Nancy Benoit's family $19.6 million in punitive damages, along with $125,000 in compensatory damages, but U.S. District Court for the Northern District of Georgia Judge Thomas Thrash, Jr. reduced the $19.6 million to $250,000, citing Georgia's statutory cap on punitive damages. (See "TUOL" post 6/20/11.) As reported by the Daily Mail online edition (www.dailymail.co.uk), Associated Press and the ABA Journal Law News Now blog, counsel for Nancy Benoit's Estate argued the adult magazine "acted...with intent to harm" the plaintiff, an exception to the statutory cap, so the $19.6 million puntive damages award should be reinstated. Counsel for the defendant argued on First Amendment grounds that the matter was wrongly tried in the first instance because the photos of Nancy Benoit were newsworthy, involving a matter of public concern, a recognized defense to invasion of privacy claims.

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

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.

Online Bedbug Posters Bitten By Hotel's Defamation Suit

Image via WikipediaIn Carleton Hotel LLC v. Michael Gladstone & Liora Braun, filed in Cook County (Ill.) Circuit Court this week, disgruntled hotel guests who posted on Tripadvisor.com about a hotel's alleged disinterest in their complaint about allegedly discovering a bedbug have been sued by the hotel.

The ABA Journal Law News Now blog  reports that the Carleton Hotel's complaint against the defendants includes counts alleging defamation, false light invasion of privacy and tortious interference with prospective economic advantage. The complaint alleges the defendants complained about finding a bedbug on the final night of their three-day stay at the plaintiff's facility in April, but that neither a hotel maintenance crew nor a pest control service discovered any of the small parasitic insects.

The hotel contends the defendants' Tripadvisor post that the hotel did not take their bedbug complaint seriously is false and harmful to its reputation.

Magazine Nets a 'Tweet' Libel Settlement

Image via WikipediaPCMag.com reports on an unusual out-of-court resolution of a defamation suit--the defendant agreed to Tweet his apology to the plaintiff 100 times.

Malaysian blogger Fahmi Fadzil sent an unflattering post about Blu Inc. Media, publisher of Female Magazine, on June 25 that criticized the company about what he believed was its mistreatment of his pregnant friend that he claimed caused her to quit her employment with Blu Inc. Although Fadzil retracted his negative comment, Blu, Inc.'s attorneys sent him a letter demanding an apology and seeking monetary damages.

Instead, the parties agreed that Fadzil would Tweet the following mea culpa: "I've defamed Blu Inc Media & Female Magazine. My tweets on their HR policies are untrue. I retract those words and hereby apologize."  Who says you can't convey any message in 140 characters? Fadzil began sending his apology in 30-minute intervals to his approximate 5,300 followers.

Perhaps it's a cultural difference:  Malaysia employs the microblogging social platform of Twitter to resolve a defamation lawsuit, whereas in the U.S., as reported by this blog, the number of defamation suits involving Tweets are on the rise ("Twibel" is a likely entry in the next edition of the Oxford Dictionary).

'Anti-Social Media': Courtney Love Faces Another Online Defamation Suit

Image by Getty Images via @daylife

Two months after actress and "Hole" chanteuse Courtney Love agreed to dole out $430,000 to settle a libel claim involving impolitic comments she Tweeted about a fashion designer (Dawn Simorangkir a/k/a Dawn Younger-Smith v. Courtney Michelle Love et al. (Case No. BC41059)) [see "TUOL" posts 3/4/11, 8/25/09], Kurt Cobain's widow again finds herself a defendant in a Los Angeles Superior Court libel suit, this time, filed by her former attorneys, Frederic Gordon and Rhonda Holmes.

As reported by The Hollywood Reporter's THR, Esq. blog and the ABA Journal Law News Now blog, the San Diego-based Holmes & Gordon law firm, which represented Love in 2008-2009 in litigation seeking to recover assets allegedly filched from Cobain's Estate, has sued its former client for defamation, false light invasion of privacy and intentional interference with advantageous economic relations.

The plaintiffs contends that Love fired them as counsel after they purportedly urged her not to engage in substance abuse during the existence of their attorney-client relationship. After the firm allegedly resisted Love's efforts to rehire it, the Complaint alleges that Love Tweeted that Attorney Holmes was "bought off." The plaintiff also alleges that in a subsequent July 2010, online interview, Love said "they got to her [Holmes]" in explaining why her former attorney had stopped taking her calls.

Holmes & Gordon is seeking punitive damages against the Hole vocalist. "TUOL" recommends that Love purchase an electric typewriter because she doesn't seem to handle social media platforms all that well.

Ariz. Reporter Fired for Tweets Gets the Bird in NLRB Ruling

Image via WikipediaIn an 8-page Advice Memorandum in Lee Enterprises, Inc. d/b/a The Arizona Star (Case No. 28-CA-23267), the National Labor Relations Board ruled against a 10-year veteran police reporter for The Arizona Star whose Tweets resulted in his termination.

As reported by the American Bar Assn. Journal's Law News Now blog and the Delaware Employment Law Blog, the Star reporter was discharged because his superiors deemed his Tweets unprofessional and inappropriate. Influential in the NLRB's adverse ruling was that both a human resources official and the Star's managing editor had warned the reporter about his tweeting in 2010 that included a critique of one of the daily's headlines.

The reporter subsequently changed his Twitter id, removed some supervisors from his "followers" list and restricted access to his Tweets.  Still, he was fired after further complaints about his Tweets, including one from a local tv news station that the reporter ridiculed by noting a misspelling in a Retweet of a message from the station.

In ruling against him, the NLRB said the reporter "was terminated for writing inappropriate and offensive Twitter postings that did not involve protected concerted activity."

Facebook Sues Adult Networking Co. in Trademark Case

Image by Getty Images via @daylifeIn Facebook, Inc. v. Various, Inc. et al (Case No. 4:2011-cv-01805), filed last month in the U.S. District Court for the Northern District of California, social networking giant Facebook sued an adult networking service for trademark infringement, unfair competition and cybersquatting.

Judge Saundra Brown Armstrong will hear the case in which Facebook is alleging that Various, Inc., and subsidiaries, including Traffic Cat, Inc. and GMCI Internet Operations, Inc., are capitalizing on the plaintiff's brand with its Facebookofsex.com Website.  Facebook claims the defendants' Website includes a blue "Like" button and a blue band at the top of each page, which creates confusion among site visitors and tarnishes Facebook's reputation, according to the Complaint.

Newspaper Editorial Sparks Libel Suit

Image via WikipediaThe plaintiff's attorney and presiding judge involved in a successful defamation case brought by a teacher against a weekly newspaper over a published letter to the editor have each filed a libel action against the same newspaper in Chesterfield County (Va.) Circuit Court based on an editorial written by the newspaper's president about the case.

In Wayne Barry Montgomery v. Southside Voice, Inc. et al. (Case No. CL11000834) and Melvin R. Hughes, Jr. v. Southside Voice, Inc. et al. (Case No. CL1100835), attorney Montgomery and Richmond Circuit Judge Hughes each sued The Richmond Voice and its president, Jack Green, for $1 million compensatory damages and $350,000 punitive damages based on Green's editorial in March 2010.

As reported by the publication, Richmond Biz Sense, and the ABA Journal Law News Now blog, The Richmond Voice, whose readership is largely African-American, published a letter to the editor that criticized a Henrico County middle school teacher, who in turn, successfully sued the Voice for libel in 2009, receiving a jury award in March 2010, totaling $125,000. Montgomery represented the teacher and Judge Hughes presided over the trial.

A week after the adverse verdict, Green wrote an editorial about the case in the Voice that said in part: "We did not take into account the politics played in a courtroom--between judges and counsel--and the maneuverings of counsel who treat facts casually." That statement did not sit well with the plaintiffs in the current action, who allege that their professional reputations were sullied by the accusations of engaging in courtroom politics.

The plaintiffs face considerable hurdles in their libel suit, including quantifying their damages and overcoming an anticipated "fair comment" defense by the weekly, which is likely to argue that an editorial constitutes opinion, which by its very nature cannot be false and defamatory.

UPDATE: Indigent Counsel Billing Docs Public Records

Image via WikipediaThe Washington Supreme Court has ruled that billing records submitted by counsel for indigent murder defendants are subject to the state's Public Records Act of 1972 [42.56 RCW], despite having been sealed by a judge.

The ABA Journal Law News Now blog reports that Washington's High Court also awarded costs and attorneys fees that could run into six figures to The Yakima Herald-Republic, which sought the court-appointed counsel billing information in the drug-related murder trial of Jose Luis Sanchez Jr. and Mario Gil Mendez, who were blamed for the 2005 killings of Ricky Causor and his three-year-old daughter, Mya Causor. (See "TUOL" post 3/11/10.) Mendez pleaded guilty and Sanchez is appealing his conviction in 2007.

The Sanchez defense cost taxpayers  $1.5 million and another $560,000 in defense costs for Mendez. A judge charged with overseeing defense counsel spending in the case ordered the billing records sealed, though they were forwarded to the county auditor and board of commissioners so that counsel could be paid. The Yakima Herald-Republic was rebuffed in its efforts to obtain the records under the public records law by officials who feared being held in contempt of court if they produced the sealed documents.

The Supreme Court ruling remands to the trial court the lion's share of the case for new determinations consistent with the high court decision. The Washington Supreme Court faulted officials for shifting its burden to cite an exemption under the public records act to the newspaper, thereby forcing the daily to sue for the data.

Only court records that are exclusively held by the courts are exempt under the public records law, the high court ruled unanimously. Two defense attorneys appointed to represent the defendants were discharged by the court in 2006 for unethical conduct that purportedly led to the wasting of $1 million in taxpayer funds, according to a probe by the AG's office.