"The court also dismissed the civil conspiracy claim and copyright infringement
claim, finding that Wells's use of the images for criticism was transformative,
noncommercial and constituted fair use."

Ascend Health Corp. v. Wells

Posted July 22nd, 2013 by DMLP Staff

Threat Type: Lawsuit         Date:  05/03/2012
Status: Concluded         Location:  North Carolina
Disposition: Dismissed (total)         
Verdict/Settlement Amount: n/a
Legal Claims: Conspiracy; Copyright Infringement; Defamation; Unfair Competition
Location of Ascend:   Texas; New York; Delaware        

Legal Counsel for Ascend:        
Mark Ishman (Ishman Law Firm, P.C.); John Dozier (Dozier Internet Law, P.C.)        

Legal Counsel for Wells:
John Bussian (The Bussian Law Firm, PLLC); Mark Prak, Charles Coble, Eric David
(Brooks, Pierce, McLendon, Humphrey & Leonard LLP)

University Behavioral Health of Denton ("UBH") is a private psychiatric
hospital in Texas owned by Ascend Health Corporation, where Brenda
Wells, a North Carolina resident, was once treated. Dr. Khan is UBH's
medical director, while Dr. Kresch is the President and CEO of Ascend.

Wells operates the blog page "Worst Hospitals in America: UBH/Mayhill" at
http://ubhdenton.wordpress.com/ (she also owns ubhdentonsucks.com, which
redirects to this blog page). Wells promotes this blog, criticizing UBH and its
doctors, on social media sites like Facebook and Twitter and encourages readers
to submit their own stories.

On May 3, 2012, Ascend Health Corporation, UBH, and Drs. Khan and Kresch filed
a complaint against Brenda Wells in the U.S. District Court for the Eastern District
of North Carolina. In the complaint, the plaintiffs alleged five claims for relief:
defamation under North Carolina law, violation of the North Carolina Deceptive
Trade Practices Act, libel under Texas law, business disparagement under Texas
law, copyright infringement, and civil conspiracy. With respect to the North Carolina
defamation and Texas libel claims, the plaintiffs referred to statements on the blog
in which Wells implied she was held against her will, the doctors were unqualified,
the facilities were unsanitary, and more. With respect to the two business-related
claims, the plaintiffs argued they suffered reputational harm as a result of the false
and defamatory commentary posted on Wells's blog. The plaintiffs also argued that
Wells reproduced UBH and Ascend's copyright by taking images of facilities and
doctors from their websites and copying the images on her blog.

In response, Wells filed motions to dismiss on June 15, 2012. First, Wells argued
that under North Carolina's choice of law, Texas substantive law rather than North
Carolina law should govern this dipute. Wells also argued that the plaintiffs'
copyright infringement claim should be dismissed under Rule 12(b)(6) as the
plaintiffs failed to prove that they had valid copyrights in the images. Most notably,
Wells moved to dismiss the Texas libel and business disparagement claims under
the Citizen Participation Act, Texas's anti-SLAPP statute. To support the dismissal
of the libel claim, Wells argued that: the allegations in the complaint were not set
out with sufficient particularity to satisfy the statute; statements on the blog were
non-actionable expressions of opinion and/or were non-defamatory; the blog
statements were substantially true; plaintiffs could not prove that Wells acted with
the requisite level of fault; the statements are commentary on an issue of public
concern; Section 230 immunizes Wells from liability for third-party content on her
blog; and the statute of limitations bars claims arising from many of the statements.

The plaintiffs filed an opposition to Wells's motion to dismiss on July 6, 2012. The
plaintiffs relied primarily on a choice of law argument, arguing that federal
procedural law and North Carolina substantive law govern, which, along with public
policy, preclude application of the Texas anti-SLAPP statute. The plaintiffs also
argued that Wells is an editor, not an "information service, system, or access
software provider," and therefore is not eligible for Section 230 immunity. Further,
the plaintiffs argued that the "matter of public concern" privilege does not apply
because Wells's blog is not a "publication by a newspaper or other periodical."
After arguing that the defamation claims not barred by statute of limitations in
Texas or North Carolina, the plaintiffs argued that the complaint's allegations are
sufficient to support a case for defamation per se. The plaintiffs also noted the
completion of copyright registration to sustain the copyright infringement claims.

On July 23, 2012, Wells replied, reaffirming her argument that Texas's law and
anti-SLAPP statute are applicable to this case. Wells also reasserted that plaintiffs
failed to meet the burden of proof under the anti-SLAPP statute, and therefore their
claims should be dismissed under Rule 12(b)(6) for failure to state a claim.

The court granted in part and denied in part the motions to dismiss in an order on
March 14, 2013. The court dismissed both North Carolina claims after finding that
Texas substantive law governs under North Carolina's choice of law doctrine. The
court also dismissed the civil conspiracy claim and copyright infringement claim,
finding that Wells's use of the images for criticism was transformative,
noncommercial and constituted fair use. The court denied the motion to dismiss the
plaintiff's claims for Texas libel and business disparagement, rejecting the
applicability of Section 230. As Wells herself posted to the blog and significantly
altered some content that originated with third parties, the court held that Section
230 immunity did not cover her content. Wells's fair reporting privilege argument
was also rejected; the court held that as a blogger Wells would not be entitled to
the privilege, distinguishing blogs from newspapers and other traditional news
sources. In Judge Britt's words, "Postings on the blog are not published at regular
intervals. They are not composed of articles, news items, or the like."  

On April 22, 2013, the plaintiffs filed a notice of voluntary dismissal with prejudice,
thereby dismissing all remaining claims against Wells. As of July 2013, Wells's blog
and critical commentary remained available.
Related Links:

Eric Goldman: Griping Blogger Protected by Fair Use But Not Section 230--Ascend
Health v. Wells
San Diego Education Report
San Diego
Education Report
See blog posts on
Gilbert v. Sykes

Del Junco v. Hufnagel

Public figures in Schools

Public figure Anti-SLAPP

Free Speech

Stutz v. Larkins
First Amendment
Cases Practice Quiz
Cases and Links
Kelman v. Kramer
Chaker v. Mateo
San Diego Education
Report Blog
Why This Website

Stutz Artiano Shinoff
& Holtz v. Maura
Larkins defamation

Larkins OAH Hearing
Ascend Health Corp. v. Wells
re Fair Use
Copyright holders should consider fair use, says Ninth
IPPro The Internet
21 September 2015

The US Court of Appeals for the Ninth Circuit has asked
Universal Music Group (UMG) to consider fair use before claiming
copyright infringement in its tussle with a YouTube user.

The Ninth Circuit ruled on 14 September that plaintiff Stephanie Lenz, who
uploaded a 29-second video of her son dancing to musician Prince’s Let’s Go
Crazy to YouTube, did so under the fair use exemption of the Digital Millennium
Copyright Act (DMCA).

UMG complained about Lenz’s video to YouTube, which removed the content. Lenz
responded with a district court suit against UMG in 2007, holding that her actions
fell under fair use and that the record label abused the DMCA takedown process.

Ruling on 14 September, the Ninth Circuit found that the DMCA requires copyright
holders to consider fair use before sending a takedown notification, and that a
failure to do so raises a “triable issue” as to whether they formed a subjective good
faith belief.

The case will now return to district court, where a jury will decide whether UMG
believed in good faith that the video violated fair use rules.

Corynne McSherry, legal director at the Electronic Frontier Foundation, which
represents Lenz, said the ruling sends a “strong message that copyright law does
not authorise thoughtless censorship of lawful speech”...
Fair Use and Copyright law