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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Wi-Fi industry is worried about mobile invading its airwaves

There’s a new technology buzzing around mobile carrier circles called License Assisted Access that promises to make our 4G networks faster by dipping into unlicensed airwaves. Most people have never heard of it, but the Wi-Fi industry sure has and it’s raising some red flags.

LAA, also known as LTE-Unlicensed, would tap are the same frequencies Wi-Fi relies on for to deliver its wireless connections, and Wi-Fi advocates are scared the new 4G will muscle out wireless LANs when pitted head to head. The rules of the unlicensed band dictate all users follow some basic rules to prevent devices from interfering with one another. What it all boils down to is if you detect someone using one frequency channel then you move to another channel.

LAA would act much like a Wi-Fi network, but instead of transmitting a Wi-Fi signal in the 5 GHz band it uses LTE. Carriers then combine these LAA signals with their regular 4G transmissions, creating much fatter data connections for smartphones and tablets. Carriers, however, face the same rules as other unlicensed band users in the band. They have to transmit at low power so LAA is really only good for indoor scenarios, and they also have to play nice with other users – i.e. they can’t drown out your home router. Consequently the same interference detection and channel selection technology built into Wi-Fi access points are built into LAA.

So what’s the problem then? The wireless LAN industry’s big trade group, the Wi-Fi Alliance, worries that that carriers will have an edge in the unlicensed bands because their networks are centrally managed. Wi-Fi networks, on the other had, tend to be a patchwork of access points and routers all operating independently but miraculously managing to cooperate. Introducing a centrally controlled and scheduled LAA network into that mix could mess up that mojo. Says the Alliance:

There is a risk that LAA, and especially pre-standard systems deployed ahead of coexistence work being done in the industry, will negatively impact billions of Wi-Fi users who rely on 5 GHz today for networking and device connectivity. It is generally agreed in principle that fair sharing is required, but there needs to be further work from all parties to address this risk in practice.

Driving metaphors are overused when talking about networking, but here the analogy of a racetrack applies. All race cars might be following the rules, but a group of cars acting as a team could gain an advantage by drafting off one another or forcing competitors into different lanes. The Wi-Fi Alliance says that if the mobile carriers took that capability to the fullest extreme they could effectively turn the unlicensed airwaves into a kind de facto licensed band to the determent of all Wi-Fi users.

We’re still in the early days of LAA testing so there is still time to sort the issue out. And the Wi-Fi Alliance isn’t calling for any drastic measures such as banning LTE from the unlicensed band (it would be a bit hypocritical for it do so). But the trade group does want the mobile industry to slow down commercialization work on the technology until it can get these co-existence issues worked out.

[company]Ericsson[/company], already has a LAA small cell in its product pipeline and is testing the technology with [company]Verizon[/company], [company]SK Telecom[/company] and [company]T-Mobile[/company]. Meanwhile T-Mobile CTO Neville Ray has already committed to using LAA in his networks once the technology matures.

Republicans embrace fair use (and Taylor Swift) to hit Obama

Many Republicans like to take a hard line against perceived pirates who use copyright without permission  – but what if those people included their own staff members? In the case of John Boehner, the Speaker of the House of Representatives, his staff appear to have helped themselves to Taylor Swift videos as part of a webpage mocking President Obama’s community college plans.

In case you missed it, “12 Taylor Swift GIF’s for you” is posted right on Speaker John Boehner’s official government website, and features classic Swift shots like this one from “Shake it off”:


As the Verge noted, the Taylor-montage was created by two Communication Directors from Speaker Boehner’s office, and appears targeted at younger voters who are used to receiving information through meme-style messaging.

But that still leaves the question of what Swift thinks of the whole thing, and whether she is okay with the intellectual property implications — specifically, Speaker Boehner’s use of her copyrighted videos, and of the personality rights tied to her public image. Recall that Swift recently made a big stink about the alleged harm to artists when their work is made available for free.

Boehner’s office did not immediately reply to a request for comment about whether they obtained Swift’s permission, but I suspect the answer is “no,” and they just went and did it anyways like anybody else posting a funny GIF on the internet.

Fortunately for them, on the copyright question, the Speaker is almost certainly on safe ground thanks to the law of fair use. These rules permit people to use creative works without the copyright owner’s permission. The actual fair use test is more complicated than many people think but, for these purposes, the fact that clips are under 6 seconds with a transformative purpose means almost any judge would rule against Swift if she sued.

A harder question is whether Swift has a case the law of personality rights, which protects people (usually celebrities) from being placed in a false right or endorsing something without their permission.

I have no idea what Swift thinks of the President’s community college proposal, but it’s possible she could take exception to having her image used in Republican attack ads. If she does, the Speaker’s Office could likely rely on the First Amendment as a defense, though the state of the law right now means that wouldn’t be a sure thing.

In any case, the timing of the Speaker’s Swift meme is interesting since Congress, controlled by the Republican party, is currently undertaking a sweeping review of copyright law. While these reviews typically focus on piracy and enforcement, many people are calling on lawmakers this time to look at fair use issues, and how over-enforcement by big companies or trolls can limit free expression — like the clever GIF-messages created by Boehner’s team.

As Taylor suggests, there’s a lot to think about:



Selma soars despite MLK estate’s copyright clutches

Selma, a new film about Martin Luther King’s role in seminal 1965 civil rights marches, is a triumph not only because of critical acclaim, but because biopics about King have been nearly impossible to produce in the first place. That’s because the King family aggressively enforces copyright at all turns, unleashing lawyers in the direction of anyone who seeks to use the civil rights icon’s speeches or images without permission.

Happily, film-maker Ava DuVernay performed a historical hack of sorts, recreating King’s signature powers of oration, but without using his actual words. Critics so far seem impressed, and Selma has already created considerable controversy and Oscar buzz.

But this still raises the question of why the King estate wouldn’t allow the filmmakers to use King’s famous speeches, including “I Have a Dream,” in the first place. Likewise, the estate has been quick to go after merchandise makers who used King to celebrate the historical election of Barack Obama, as well as the foundation that helped to bring a statue of King to the Washington Mall.

Could it be that the estate fears too much exposure will trivialize King’s accomplishments? Unlikely. After all, the estate hasn’t been shy about giving a piece of King to the likes of Apple, Chevrolet and Mercedes — and more recently to a t-shirt outfit that pledged to “celebrate Dr. King’s life and legacy through artistic, fashion-forward designs.”

Unsurprisingly, the root issue here is entirely about money, and the King estate wants as much as it can get. It doesn’t appear to care that its grasping tactics put King’s words beyond the reach of, well, civil rights leaders.

As lawyer Jonathan Band noted, these episodes are not just unseemly, but risk creating a distorted historical record since many people’s impression of King could become shaped not by what he actually said, but by filmmakers’ recreations of what he sort of said.

Band also pointed out, correctly, that there is a very strong fair use argument for historians and film makers to use King’s speeches without clearing copyright. But having the best legal case (not to mention the best moral one) is not enough — they would also require the financial resources to make their case in court.

Ultimately, though, the fuss over the King speeches obscures a deeper problem: copyright protection lasts for far, far too long.

After all, the Selma speeches occurred 50 years ago and, under a rational intellectual property regime, should be entering the public domain. This is something for Congress to consider in 2015 as it continues to review U.S. copyright policy; rather than simply focusing on enforcement, it should also restore a balance between protecting artists and protecting free expression.

This story was corrected to state the King statue in Washington has been erected; an earlier version said the foundation was working to erect it.

The fair use case to show The Interview if Sony will not

After Sony cravenly cancelled The Interview, people who had no interest in the comedy now want to see it — mostly so they can stick it to North Korea, whose threats caused the film to be cancelled in the first place. But where can they watch it?

Some options are already emerging. As the Wall Street Journal proposed, the U.S. government could release the film everywhere, including North Korea where dissidents already smuggle in movies via balloons and USB sticks. Under the Journal’s plan:

[A]n alternative would be for the U.S. government to buy the movie rights from Sony and release it into the public domain. Anyone could then share the file online without violating copyright, burn it onto DVDs or even re-edit it to make new viral videos. Chinese netizens love to mock Kim, and North Koreans like to watch movies smuggled across the border from China. Perhaps the CIA could dub the movie into Korean to make sure it gets to its target audience.

It’s not a bad idea, but perhaps there’s no need to wait for the U.S. government to buy the movie. Instead, distributors of any shape or size, from Netflix to film blogs, could rely on copyright’s fair use exemption to show the movie without asking [company]Sony[/company].

Law professor James Grimmelmann raised this idea last week:

Fair use rules involve courts balancing the rights of the copyright owner against the interest of the public. And in this case, the public interest case for showing the movie is enormous, given the awful precedent that this piece of censorship is setting. As David Carr of the New York Times put it:

Once the film was successfully censored, you could count the days until other films were affected. Actually, it happened earlier in the same day, before The Interview was shelved, when New Regency announced that it would drop an untitled thriller about North Korea that was to have starred Steve Carell. […]

The threats and subsequent cancellation will become a nightmare with a very long tail. Now that cultural discourse has become the subject of online blackmail, it is hard to imagine where it will end.

There is still the matter, though, of how fair use rules actually apply. Here, as with any other copyright case, it involves a standard test. The test involves four steps, but in practice, only two factors really matter: the reason someone is using the copyrighted work, and the effect that this use will have on the market.

As Grimmelmann notes above, the market factor tilts heavily in favor of anyone showing The Interview since, right now, there is no market for the film. And as for the other major fair use factor (known as “the purpose of the use”), there is a good argument that showing the film counts as a so-called transformative use. Unlike Sony’s original intention for the movie, which was as a lowbrow form of entertainment, others who show it would be making a powerful political statement. As President Obama noted on Friday:

“We cannot have a society in which some dictators someplace can start imposing censorship here in the United States … That’s not who we are. That’s not what America is about.”

Does this mean that the fair use case for showing The Interview is open-and-shut? No, it’s not. But the case is strong and, anyway, would Sony really double down by filing copyright lawsuits over a movie that it was too cowardly to release in the first place?

So let’s hope that everyone from [company]Netflix[/company] to [company]BitTorrent[/company] considers making a stand on this one. This would be a good occasion for the file-sharing crowd to prove that they care about something more than getting movies for free. And for [company]Hulu[/company] and [company]Amazon [/company]and anyone else with an interest in Hollywood, this would be a second chance to take up George Clooney’s call for the film industry to take a stand about something that matters more than money.

Jay Z crushes sample troll who claimed copyright in word “oh”

It’s been a good week for Jay Z: the rap star chatted court-side with visiting royalty at a Brooklyn Nets game and, hours earlier, vanquished a sleazy shakedown artist that had been demanding royalties for Jay Z’s use of the word “oh” in the hit song “Run this Town.”

As a federal court opinion explains, Jay Z does not have to pay for sampling the syllable “oh” from a 1969 track called “Hook and Sling” by the late pianist Eddie Bo (you can hear both tracks below).

In the 15-page ruling issued on Tuesday, the judge stressed that there is little relation between what the copyright owner described as Bo’s “exuberantly-shouted” syllable “oh,” and the 2009 hit that features Rihanna and Kanye West: (my emphasis added)

Run This Town bears very little and perhaps no similarity at all to Hook & Sling Part I. The melody and lyrics are entirely different. The lyrics do not contain the word “oh.” .. [It appears] only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener.

The decision is significant since it slams the door once again on so-called “sample trolls,” which are companies that acquire recordings and then use music-parsing technology to seek out people to sue. It comes after a different New York judge last year threw out a similar case brought by the same sample troll, known as Tuf America, against the Beastie Boys.

As critics have observed, the trolls have been deleterious for hip-hop as a whole since they ensnare musicians in legal thickets over tiny sound samples, meaning that landmark albums like the Beastie Boys’ Paul’s Boutique could not have been made in today’s copyright context.

In siding with Jay Z, the court sidestepped the issue of whether Eddie Bo’s “oh” could be covered by copyright in the first place, and instead relied on a lack of similarity between the works. You can read the whole ruling below (I’ve underlined the relevant bits) or just check out the two tracks and see if you can hear the “oh.”



Jay-Z Sample Troll

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In Google Books appeal, judges focus on profit and security

The Authors Guild took its latest courtroom swing in a decade-long dispute over Google’s decision to scan millions of out-of-print books and, based on the judges’ questions, the hearing could be its swan song.

In a crowded Manhattan court house on Wednesday afternoon, three judges of the Second Circuit Court of Appeal appeared to give little weight to the Authors Guild’s contention that Google’s book scanning should not be considered fair use under copyright since Google might profit from the scanning.

“The classic fair use cases are commercial,” said Circuit Judge Pierre Leval. “I would be surprised if you’re going to win this case by pleading that Google, like the New York Times, is profit [oriented].”

Leval added that quintessential fair use examples such as news reporting or book review quotes are performed by profit-seeking companies, and the case should be no different if the company is a search engine.

The focus on the commercial character of the scanning represented a shift from earlier arguments, which had turned almost entirely on whether Google’s massive Books project was “transformative.”

The shift comes after Judge Denny Chin awarded a decisive victory to Google in November of last year by throwing out the Authors Guild’s class action suit, after concluding Google Books was “highly transformative.

Under copyright law, courts weigh four factors to determine if someone can use an author’s work without permission. The first factor, which looks at the purpose of the use (including if it is “transformative”) and the last factor, which looks at the market implications of the use, are considered the most important parts of the test.

The court also appeared skeptical of claims by Authors Guild lawyer Paul Smith that Google Books undercut authors’ opportunity to profit from inclusion in online databases — a so-called derivative right. Judge Leval dismissed Smith’s argument that there was a market for access to such a database, and that some people would pay for a license to the Google Books repository.

“That’s not a very useful test,” said Leval, noting that it’s always possible to find someone who would pay a small license fee in order to avoid potential legal headaches.

The counsel for Google, Seth Waxman, meanwhile told the court that the company had spent $125 million on the scanning project, and that the revenue it earned from an earlier advertising scheme was so negligible that it discontinued the program.

Fear of hackers

The Authors Guild’s attempt to persuade the appeals court to overturn Judge Chin’s fair use decision on the basis of market harm fell flat. But it did get a more sympathetic reception in regards to how universities, which provided Google with the access to books for scanning, might treat the databases.

Under the terms of their book-scanning contracts with Google, schools like Stanford and the University of Michigan obtained the right to receive a digital copy of each book. (Many schools then combined their respective copies in a corpus called the Hathi Trust, which the appeals court recently concluded was fair use.)

On Wednesday, however, the judges asked if the terms of the Google contracts could change, and result in the schools’ granting more liberal access to their respective collections, and ultimately infringe on the authors’ rights over the books.

Waxman noted, however, that the contracts required the schools to comply with federal copyright law and that, in any case, the question was outside the core issue of whether the Google Books scanning was fair use.

The Author’s Guild lawyer also raised the specter of hacking, invoking the famous case of “activist hacker” Aaron Swartz, who suffered federal prosecution after he downloaded thousands of journal articles from servers at MIT.

“This is the kind of thing that’s in the air out there and universities are prime targets,” said Smith, the Authors’ Guild lawyer.

Waxman countered that any literary-related hacking attempts were unlikely to target the works scanned by Google, which are mostly decades old and out of print. He added that Google waits two years before adding any new books to its database, meaning “the latest Harry Potter” — which Judge Leval invoked repeatedly — would not be available to would-be hackers.

A ruling is likely to come sometime in January or February. The Wednesday hearing was attended by a number of Googlers and prominent copyright lawyers, including scholar Bill Patry, Google lawyer Fred Von Lohman, and Alec MacGillivray, who is now deputy Chief Technology Officer at the White House.