Anonymity as Counterbalance for Intrusions of Intellectual Property

-- By AaronChan - 05 Dec 2011

Ownership of ideas has little currency in the Information Society because it is always premised on the power of exclusion and the nature of the Net is the dissemination of information and tools of empowerment. The dangers of squelching dissemination of knowledge are multiplied as information dissemination has also increased online. While the offensive use of intellectual property rights has always been an issue, its potential intrusion into defamation censorship only highlights the necessity for online anonymity.

Medical Justice

Medical Justice, a physician organization devoted to blocking malpractice lawsuits for its members, has used a copyright assignment contracts to attempt control over patient reviews. The organization sells contracts to doctors to give to their patients before treatment. The contracts assign any and all copyrights on anything written about the doctor by the patient to the doctor. When a doctor encounters a negative review, he can seek removal of that information by claiming ownership of the copyright.

Communications Decency Act and the Digital Millennium Copyright Act

The CDA protects “interactive computer service” providers from defamation suits by user-generated postings. It does not however, have a notice-takedown provision like the DMCA. Those claiming defamation, unlike those alleging copyright infringement, do not have a simple legal mechanism to remove that information. Medical Justice seeks to leverage intellectual property protection to circumvent the § 230 of the CDA by having its members’ patient sign copyright assignment agreements to the doctors. When faced with a negative review, the doctor invokes his copyright and uses a DMCA takedown to remove material from the site. Most online service providers are expedient and thorough with following DMCA takedowns to maintain their safe harbor for secondary infringement. Faced with losing that safe harbor, websites may be more willing to remove reviews on copyright grounds than on potential defamation, for which it would be protected.

Public Knowledge has already explained the various legal problems with Medical Justice’s technique, including whether the reviews are copyrightable, whether the patient can assign future copyrights, whether the contract is unconscionable. I will not rehash those arguments here. Instead, my focus is on the collision of the right of publicity with the need for anonymity on the Net.

Necessity of Anonymity

Anonymity is important because it allows criticism without fear of retribution. In cases of totalitarian regimes, we tend to applaud the need for anonymity on human rights grounds. Yet, the very qualities of anonymous speech that make it ideal for destabilizing authority are also the qualities that make it so dangerous from a defamation perspective. The intersection of anonymity and copyright is at the very nature of control. Allowing the spread of intellectual property rights over information, as Medical Justice wants, would squelch critical speech. But even if Medical Justice could suppress bad patient reviews with DMCA takedowns, it could only do so when it could demonstrate that it had a valid copyright. If a review is identified by author, the doctor would show a copyright assignment contract and be able to claim a copyright. If the negative review is anonymous, the doctor would then need to claim that it had a copyright over everything said about him even though he could not point to the contract that gave him the copyright ownership. Since the latter is certainly a more difficult position for the doctor to defend, anonymity may be the solution if the patient assignment is valid.

Anonymity allows critical attacks on those who control all the power. If the law insists on granting a monopoly over information through copyrights, patents, and trademark, then the maintenance of anonymity is a necessary counterbalance. The need for accountability, a traditional argument against anonymity, can be repositioned as a desire for exposure. Those in control need a target to come out of hiding when wielding the legal system against the dissenters.

Anonymity's Societal Value

Eben has pointed out the existential fear of encountering one’s Net doppelganger, a composite of all the accessible data. The annihilation of the self in such an encounter is the reason why anonymity is important, even in a non-totalitarian regime where there is less threat of physical violence. But anonymity is important for a well-functioning knowledge society as well. The bad reviews serve an important function in taming poor businesses. There are many bad reviews with no helpful bases, but the aggregation of all reviews can counter the unhelpful outlier reviews. Because the Net has democratized criticism, among almost every other human activity, one bad review on Yelp does not have the force of a condemnation from an ink and paper publication.

Anonymity comes at a cost as well. The message loses much of its efficacy when it comes from a position of no authority. Speakers have an incentive to speak identified to establish reputation and authority. Therefore, the answer to anonymous negative press would be more press. Instead of prohibiting bad reviews, the Medical Justice doctors may try to encourage patients to relate positive experiences online. Instead of wielding the blunt weapon of censorship, doctors could reach out to those identifiable patients with bad experiences and seek to rectify the injury.

As leaps in social networking have pushed away from anonymity, the middle ground of pseudonymity may be the best compromise. It can allow a degree of protection between the online persona and the actual individual while still allowing that persona to develop authority and reputation. Although it is unclear how a pseudonymous review would fare in a copyright assignment case. The evolution of the Net cannot foreclose the use of pseudonyms or the power to speak anonymously if there is to be a balance of opinion against those with the property rights.

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