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Copyright Law Used By New York Dentist To Prevent Negative Reviews

Dr. Stacy Makhnevich is a New York dentist who attempted to use copyright law to prevent negative reviews of her office from appearing on review sites like Yelp!   Under Section 230 of the Communications Decency Act, these sites are protected lawsuits from stemming from user-generated content (for example, a defamation lawsuit). This protection makes it difficult for business owners, like Dr. Makhnevich, to get negative reviews taken down from these sites. However, Section 230 does not cover intellectual property. 

Enter the "Mutual Agreement to Maintain Privacy” and the Digital Millennium Copyright Act (or 'DMCA').  Each of Dr. Makhnevich's patients is asked to sign this Mutual Agreement stating they will "not denigrate, defame, disparage, or cast aspersions upon the Dentist." A company called Medical Justice provided the Agreement as a way to prevent negative customer reviews. Under the Agreement, if patients publish reviews of Dr.  Makhnevich, she owns it. The DMCA penalizes copyright infringement on the Internet. So a useful tool for getting illegally posted copyrighted material removed from websites is a DMCA takedown request. Websites are shielded from liability under the DMCA if, after receiving a takedown notice, the infringing content is blocked or removed. 

Dr. Makhnevich sent DMCA takedown notices to several review sites and sent invoices to a displeased former patient stating that he owed $100 per day for copyright infringement. That patient's attorney then filed a lawsuit against Dr. Makhnevich challenging the validity of the Agreement and stating that criticism by patients is fair use and non-defamatory. Since then, Medical Justice has not defended Dr. Makhnevich and she has closed her office and appears to have skipped town. The case is still pending.


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