Bad dentist must pay $4,677 in case over Yelp threats

It’s bad enough having a toothache. It’s much worse when your dentist rips you off for $4,000 and then threatens to sue you for complaining about the treatment.

That’s what happened to New York City patient Robert Lee, whose ordeal started in 2011, but ended last week when a federal judge ordered the dentist to pay $4,677 in damages and legal fees.

The dentist in question, Stacey Makhnevich, boasted of being an opera singer who catered to musicians. Her other speciality was short-circuiting negative Yelp reviews with tricky contracts that required patients to assign their copyright in what they wrote about her services. (See Ars Technica for the legal background).

Sure enough, after Lee complained about her on Yelp, Makhnevich went after him. She pointed to the contract to demand that Lee pay $100 in copyright damages for every day the negative review stayed online.

Makhnevich is not the first to try this stunt. Other professionals around the country, mostly doctors and dentists, have also been using service contracts to stifle social media criticism.

Fortunately, they’re not all succeeding. After Lee filed a lawsuit to stop Makhnevich, U.S. District Judge Paul Crotty agreed with him that the Yelp review was fair use under the Copyright Act.

He also chewed out Makhnevich in a default judgment, finding her actions to be unconscionable and a breach of fiduciary duty, and ruling that Lee’s commentary couldn’t be defamatory under New York state law.

The Makhnevich affair is another example of the Streisand effect, and why it’s perilous to use aggressive legal tactics to control social media. (Last year, a hotel in New York found out something similar, when it threatened a bride with $500 fines for every negative review posted by her wedding guests.)

For Lee, however, the $4,677 may be a hollow victory since the rogue dentist is now nowhere to be found. The judgment is below:

Update: For the lawyers out there, Paul Levy of Public Citizen, who represented Lee: “The damages were awarded on a different cause of action than the one about the non-disparagement / copyright assignment agreement.  In addition to that claim, which is what got all the public attention, Lee had a claim for breach of contract, because the dental office promised to send records to his insurance company so he could get reimbursed for her (exorbitant) charges.  They did not send the records so he was out the money, and the damages were ONLY for that.” (I’ve changed the headline to reflect this)

Bad Dentist Judgment

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Google and Mississippi meet in court over secret MPAA lobbying

A devastating hack on Sony late last year exposed embarrassing details about Hollywood’s darker side, including a secret campaign by the movie industry to bring about new copyright controls. Dubbed “Project Goliath,” the plan relied in part on the Motion Picture Association of America colluding with state officials in order to investigate and harass Google.

Now, in a Friday hearing that promises to be equal parts constitutional law and political theater, Google will try and persuade a federal judge in Jackson, Mississippi, to rein in the state’s controversial Attorney General, Jim Hood.

“For nearly two years, Attorney General Hood has pressured Google to remove and censor content that he and Hollywood don’t like — even though he lacks legal authority to do so,” said Google’s general counsel, Kent Walker, in a statement. “Attorney General Hood’s extraordinary 79-page subpoena is an unjustified assault on free speech and we’re asking the federal court to set it aside. We regret having to take this matter to court, and we are doing so only as a last resort.”

Hood’s office did not immediately respond to a request for comment over an affair that not only showed him to be acting as an agent of the movie industry, but that exemplifies a larger pay-to-play phenomenon in which Democratic attorneys general exercise their official powers at the behest of private industry and law firms — and receive a cut of the proceeds.

In the case of Hood, the current details came to light after the Verge discovered documents from the Sony hack that showed how lawyers from the movie industry had drafted documents that the Attorney General had sent to [company]Google[/company] as part of an investigation.

That investigation is ostensibly about protecting Mississippi consumers from online threats like drugs and pornography, but appears instead to be a stalking horse for the movie industry. Internet activists fear the industry’s goal is to use state AGs in a back-door attempt to implement the substance of SOPA, an unpopular anti-piracy bill that collapsed in early 2012.

As for Hood, the Google investigation may be no more than an attempt to use the investigative powers of his office to wring out some money for the state of Mississippi, and for his own campaign coffers.

“Hood’s crusade against Google looks and smells like an effort to simply squeeze the billion-dollar to provide some settlement money,” wrote the Natchez-Democrat, a community news site, in a January editorial.

Such criticism, however, appears to be doing little to deter Hood, who is framing his actions as a populist effort to defend the people of Mississippi, and last month filed a motion to dismiss Google’s complaint that he had overreached with his MPAA-backed subpoena.

Friday’s hearing, which will address both Hood’s dismissal motion and a request by Google for a temporary restraining order against him, will put the two sides’ theories to the test.

According to a brief filed by Google, the state of Mississippi is usurping federal statutes that shield internet companies from copyright and indecent acts carried out by their users. Google also argues that Hood is treading on its constitutional rights with “specific threats of prosecution, and there is no dispute that the First Amendment forbids threats of prosecution based on protected speech.”

Hood’s lawyers, meanwhile, will attempt to tell the judge that its subpoena falls within Mississippi’s investigative powers, and that Google can always go to state court if it fears its rights are being abused.

A ruling on the case is likely to come in coming weeks. I’ll update if there is major news out of today’s hearing. In the meantime, if you want to get a flavor of the legal issues at play, here is a copy of Google’s brief with some of the relevant parts underlined:

Google Reply Brief

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