18 April 2011

The Perversion of Copyright

The first copyright law, the Statute of Anne - which definitively moved copyright away from its original roots in state censorship - was:

An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.

That is, it was unequivocally about "encouraging learning" by promoting the publication of books. Against that background, this is pretty extraordinary:

Medical Justice was founded in 2002, and today has about 3,000 members, located in various states and representing different medical specialties, who pay an average of $1,200 a year. The company sells membership as a batch of services, mainly centered around helping doctors that are facing medical malpractice litigation. But the Medical Justice benefit that has drawn the most scrutiny is its program of fighting “physician internet libel and web defamation.” The system works by getting patients to sign contracts that assign away the copyright in any future review they might of a doctor—to the doctor.


an effort to help doctors get around Section 230 of the Communications Decency Act (an “arcane nuance of cyberlaw,” according to Medical Justice’s website), the law that protects web services from getting sued over content posted by their users. When doctors send review sites a note complaining that a review is false or defamatory, the website is protected by CDA Section 230 and is unlikely to remove the review. But when the same sites receive copyright takedown notices, the law compels them to act—and act quickly. Section 230 doesn’t cover intellectual property claims, and copyright infringement has harsh legal penalties.

There are several interesting things going on here.

First, there is the preferential treatment given to alleged copyright infringement over alleged libel. Obviously US law disagrees with Shakespeare's words:

Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.

But more seriously, copyright is being wrenched far from its stated purpose of encouraging learning to become an out-and-out tool of censorship - in an ironic return to its medieval origins.

In a way, that's hardly surprising: copyright is a monopoly, and monopolies by their very nature are about exercising control over people. What's odd here, though, is that copyright is being employed to exercise control over someone else's possible future creation - it's an *anti*-encouragement to creativity.

An excellent new site set up to fight this worrying move - wittily entitled "Doctored Reviews" - explains why this is so dangerous:

Medical Justice’s efforts may be a sign of things to come. Imagine if other companies used similar contracts. Before you get a haircut, before you buy a six-pack of soda at the local grocery store or before you order a meal at a restaurant, imagine you were required to keep quiet and never post your opinion online about the product or service you purchased. Sound ridiculous? It does to us, and we think it’s no less ridiculous when doctors demand this of their patients.

Ridiculous, maybe, but sadly not implausible: the enforcement of intellectual monopolies is being used to justify extreme international treaties like ACTA and TPP. The treaty "obligations" give participating governments around the world a handy excuse for the imposition of laws that seriously curtail civil liberties and human rights, while laying the blame on their treaty partners (the same circular trick was used to justify keeping the ACTA treaty secret: it was always some *other* country that wanted it that way.)

The present episode is merely part of this larger abuse of ancient and by-now unnecessary monopolies - the perversion of an already perverse system.

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Anonymous said...

Hmmm... unless the doctors back this up with an NDA, I think their approach is flawed. I could simply relay the facts of my encounter to a 3rd party who could write and publish a review. Of course, if they add an NDA this becomes even more repugnant.

Glyn Moody said...

@anonymous: yes, that should work - unless they add the NDA. But the problem is really the principle - using copyright to stifle comment.