Copyright Slappdown: Could Businesses Use IP Law to Nuke Bad Online Reviews?

In the social media fueled economy, forward-thinking businesses are obligated to be concerned about their reputation on the web – drawing negative heat on a popular site can impact the bottom line.Until recently, a defamation suit against the user was the primary legal prophylactic for bad online buzz.But that was an unappetizing fix, not only because the Communications Decency Act (CDA) places the deep third-party pockets out of reach, but also because such suits carry the risk of running afoul of state anti-Slapp statutes.Now, businesses may have a new tactic – contractually acquiring prospective intellectual property rights in their customers’ online commentary.

The most recent (and contentious) of these efforts is the “Internet Defamation Protection” program being marketed by the physicians advocacy group Medical Justice.The “program” consists of providing medical patients with a contract that purports to assign copyright in any commentary the patient might later post publicly.If a patient who has signed the contract posts an unfavorable comment, the program recommends that the physician demand the content’s removal using the notice-and-takedown provisions of the Digital Millennium Copyright Act (DMCA).While Medical Justice chief executive Dr. Jeffrey Segal urges that only a “rare circumstance” would occasion the use of a takedown notice, critics point out that simply having the agreement in place could cause patients to self-censor.If shown to be effective, this technique could be replicated by other businesses who wish circumvent the online service provider immunities in Section 230 of the CDA, which Medical Justice calls “an arcane nuance of cyberlaw.”

The practice could prove highly effective – many websites that host user content comply automatically with takedown requests based on infringement.But while some see it as strong medicine, others see it as a “poison pill.”Berkeley Law Professor Jason Schultz launched the site Doctored Reviews to counteract what he sees as an abusive practice on the part of Medical Justice and physicians using their program.“Squelching consumer reviews is anti-competitive, unethical, and potentially illegal,” Professor Schultz told The Network.“If Medical Justice continues to push this kind of practice, it may be something that federal or state consumer protection officials investigate.”

However, the medical profession is not alone in turning to IP for greater leverage over their online reputation.Black Rock City LLC, the company behind Burning Man, attempts to secure a joint copyright interest in all photographs taken by attendees of the event, who agree only to make “personal use” of the photographs.The agreement specifies that use of the photos on social networking sites is prohibited if uploaded with “the intent to publicly display them beyond one’s immediate network” or if one’s immediate network is “inordinately large.”Lady Gaga similarly withholds press credentials for her events unless photographers assign their copyright in photos in exchange for a limited license to use the photos on particular websites for limited periods of time.Although consumer advocates may be slightly less offended by use of such agreements outside the medical profession, Professor Schultz urges that “the practice is still anti-consumer and anti-speech…turning Burning Man into Big Brother is hardly a utopian response, in my opinion.”

There also remain doubts as to whether such agreements are of any true legal effect.In the case of the medical profession, it is unclear what consideration is offered to the patient who signs away intellectual property rights.For example, the Health and Human Services Department’s Office of Civil Rights recently ruled that a physician could not condition a patient’s entitlement to HIPAA protection “on the patient’s silence.”The contract could likewise be held unconscionable.

An online reviewer is unlikely in most cases to bother with challenging a takedown, but in the event of such a challenge, business could face considerable obstacles.First, some reviews may not even be copyrightable due to lack of originality – particularly where ratings are simply numerical or where the user’s review consists of only a short phrase (“this place sucks”).Further, users could mount a successful fair use defense – a court would have an easy time concluding that the use is transformative since it would likely be non-commercial.Moreover, the reproduction of the review would be unlikely to harm the market value of the review.Finally, while the DMCA provides for notice-and-takedown of copyrighted material, it also provides penalties for abuse of the practice.The strategy, even if effective, remains risky until courts weigh in.