Takedown Notices and Your Rights

What are my rights as a website owner?

Section 230 provides broad liability immunity to website owners for users’ posts to the owner’s site, including reviews of doctors. The law was enacted “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”  For more specifics on how Section 230 works and what it covers, read these primers by the Citizen Media Law Project and the Electronic Frontier Foundation.

If Section 230 immunizes my website, why am I receiving copyright takedown notices?

Section 230 does not immunize websites from liability for third party-caused IP infringements, including copyright infringement. Instead, website owner liability for users’ copyright infringements is principally governed by 17 U.S.C. §512, enacted as part of the Digital Millennium Copyright Act.  Section 512 specifies how copyright owners can complain about users’ copyright infringements by sending takedown notices to the hosting website; and those notices can make the website responsible for the users’ infringement if the website doesn’t respond expeditiously.  This is the exception that doctors and Medical Justice seek to exploit when they send copyright takedown notices.

Can doctors really use form contracts to legally acquire a patient’s copyright and send takedown notices?

If a contact has a copyright assignment provision, a doctor might believe that she has the power to send a copyright takedown notice for reviews by that patient. However, while each contract must be analyzed on its own merits, we think these contracts are potentially invalid, unenforceable and even illegal.

Do I have to comply with a takedown notice?

Valid takedown notices may trigger legal obligations under Section 512. However, a copyright takedown notice sent by a doctor may be legally dubious for three reasons:

  1. The doctor’s ownership claim works only if the anti-review contract is valid.  If the contract fails, so does the doctor’s ownership claim.  There are a number of reasons why the contract might fail. For an example of a similar issue, see here.
  2. Even if the doctor does own the review’s copyright, republishing the review may be protected under fair use, which (among other things) is intended to permit secondary uses of copyrighted works for criticism and commentary. For more information about fair use, see here.
  3. The copyright takedown notice must meet certain statutory requirements, including a requirement that only the copyright owner or its authorized agent can send the notice. For more information about the requirements for a proper copyright takedown notice, click here. An improperly sent copyright takedown notice can create liability for the copyright owner.  For more on that liability, see here.

Where can I get help?

There are several digital rights groups, such as the Electronic Frontier Foundation and Public Citizen, who may be willing to help. You can also contact us for more information.

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