Exploiting Copyrightunities

by on April 13, 2011 · 1 comment

Reputation oils the gears of many markets. People’s expressions of opinion about goods and services help establish the reputations of sellers and service providers. Knowing that they are the subject of reputation systems that they do not control, service providers do a better job on average than they otherwise would. Slacking off even once can sully a reputation and produce well-placed economic sanctions: people won’t do business. Withdrawing reputation information from the public sphere will generally slow the process of winnowing bad actors out of any market and rewarding most highly the good ones. Commercial opinion is a little engine of positive externalities.

Federal privacy regulations under the Health Insurance Portability and Accountability Act shaped the information terms in health care services in ways people are right to disagree with. So it might be tempting to trade away one’s right to criticize a doctor for greater privacy protection. But a new site called DoctoredReviews.com argues against that bargain—indeed, it argues the bargain is illusory—and it criticizes the use of copyright law to enforce the deal.

Apparently, a group called Medical Justice is offering doctors a form contract to give to patients that holds out greater privacy protection for the patient if the patient will refrain from criticizing the doctor. That’s a deal people should be free to make, though—again—it’s probably a bad one. One way that the deal is enforced is by giving the doctor a copyright in the expressions of opinion that patients may issue. This gives the doctor a right to issue “take-down” notices to web sites where content critical of them is found.

This peculiar use of copyright takes the virtuous cycle where a patient talking about an experience with a doctor benefits others, and doesn’t just nip it—bringing it back to zero. It places enforcement costs on third parties. The enforcement of copyrights in commentary pushes negative externalities onto web site operators as it deprives markets of useful information.

The DoctoredOpinions site has a good, concise explanation of the law as it relates to website owners. I think copyright has some explaining to do—its distinction from rights in physical property is in high relief—if its enforcement can draw disinterested and uninvolved third parties into an administrative/litigation vortex.

  • Tom Sydnor

    Jim, you sound like Lawrence Lessig. He once argued that owners of exclusive rights in real property had some “explaining” to do because a few owners of real property had once argued that their exclusive rights prohibited the photographing of their property and overflights by aircraft. From these few incidents of abuse that were quickly corrected, Lessig concluded that all property rights obstruct progress.

    You make seem to make a similar argument that should fail for similar reasons: The mere fact that some idiot somewhere will inevitably attempt to misuse any and all conceivable forms of exclusive rights for some socially destructive purpose does not mean that the idea of granting private exclusive rights is necessarily a bad one. It just means that the law should say “no” to abuses as glaringly as this one.

    For example, the form of intangible property rights called “mortgages” were recently misused in more subtle ways that actually had very serious consequences. Do you thus favor the abolition of mortgages, Jim? Or do you, like me, merely think that we should deal with abusive misuses of these basically beneficial rights when, (or hopefully, as) they occur?

    Moreover, copyrights are exclusive rights in fixed, original expression. Consequently, you cannot copyright unoriginal fixed expression, or fixed statements of fact, or original, unfixed expression. Consequently, the contract to which you refer, were it not void as contrary to public policy, would seem to be a contract for future personal services. Such contracts cannot be specifically enforced.

    Indeed, Jim, if you actually take this argument seriously, then users of non-disclosure agreements have even more “explaining” to do. Essentially, you describe a situation in which a contract for personal services to transfer non-and-possibly-never existent copyrights is being used as a convoluted way to achieve what the would-be contractor could do directly by imposing a non-disclosure agreement (NDA) on consumers.

    So why not just impose the NDA? It could also be used to get injunctions that would “take down” posts violating the NDA—or to send cease-and-desist letters. Indeed, you seem to say that such NDA-based restraints on the disclosure of medical negligence or recklessness would be perfectly fine with you.

    I’m not sure I agree, but if you would approve of the NDA-based approach, then I am not sure I understand why you could then be so bothered about the far more strained notion that some similar ends might be achieved through a convoluted misdirection play through copyright law that would almost certainly fail. –Tom

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