Exam-monitoring biz Proctorio tried to silence a critic using copyright law. Now EFF sues to put an end to this tactic

Tweets linking to source code were fair use, say digital-rights warriors

The Electronic Frontier Foundation on Wednesday sued Proctorio, a maker of academic surveillance software, to obtain judgement that a Miami University student's tweets linking to portions of Proctorio source code on Pastebin do not violate copyright law.

Proctorio in November last year had tweets from computer science student Erik Johnson removed from Twitter using a Digital Millennium Copyright Act (DMCA) takedown request, based on the company's claim that his posts violated its intellectual property rights. Twitter subsequently restored the tweets citing Proctorio's incomplete takedown request but the Pastebin code samples remain inaccessible.

Johnson has been critical of Proctorio, claiming that its invigilation or monitoring software violates students' privacy. The EFF argues that Proctorio has been trying to silence critics through the misapplication of copyright law.

"Software companies don’t get to abuse copyright law to undermine their critics," said EFF Staff Attorney Cara Gagliano, in a statement. "Using pieces of code to explain your research or support critical commentary is no different from quoting a book in a book review."

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Proctorio's software, used to prevent cheating during exams, has been criticized for invasive and dubious monitoring tactics, such as tracking eye movements and facial expressions, for flagging behavior as suspect without justification, and for the allegedly inequitable nature of the technology.

"Not only are the privacy concerns very real, but Proctorio, by nature, discriminates against low-class families," wrote Johnson in a tweet last September. "Forcing a student to have a private, quiet room with a quality webcam, microphone, stable internet connection, and computer can be nearly impossible for some."

The Java connection

The Register asked Gagliano whether the Supreme Court's recent decision that Google's use of a portion of Oracle's Java APIs qualified as fair use might affect the decision of the judge hearing the Johnson v. Proctorio.

Gagliano said she believes it could because the Supreme Court's opinion makes it clear that fair use applies to code with as much force as other sorts of copyrighted works.

"Because really, the type of work at issue is the only thing that makes what Erik Johnson did look different from quoting song lyrics in a music review or quoting a letter to report on its contents – or to take an extra relevant example, screenshotting a Twitter DM for evidence in a lawsuit," said Gagliano. "No one could reasonably question that those are all fair uses, and Erik's use of code excerpts is the same in every relevant respect."

Illustration of someone taking an online exam

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Proctorio has also sued a critic in Canada, Ian Linkletter, for his effort to question the company's supervisory software.

Linkletter, a learning technology specialist at the University of British Columbia (UBC) in Vancouver, Canada, published tweets challenging the company's practices by posting links to unlisted but publicly accessible YouTube videos.

Proctorio claims this violated its copyrights and accused Linkletter of bypassing protections on its Help Center documents, of encouraging others to share this information, and of violating a confidentiality agreement entered into as part of the Proctorio software's terms of service.

Won't get SLAPPed down

The EFF has previously characterized the complaint against Linkletter as a SLAPP – a strategic lawsuit against public participation, which is to say a legal action intended to silence critics through the threat of onerous legal costs.

Linkletter's costs have been significant and on Wednesday, via Twitter, he said that Proctorio has filed an additional legal motion to prolong his case and thus increase his legal expenses.

"My family and I have been suffering for 231 days," he wrote, seeking support via his gofundme.com page. "Proctorio’s delay tactics will prolong the harm of this lawsuit for months. My legal bills have already exceeded $100K."

Linkletter's battle, however, won the support of UBC, which in February this year said it would "discontinue the use of algorithmic proctoring software (also known as academic surveillance software) such as Proctorio."

Proctorio's software, seen by some schools as a way to manage remote learning amid the COVID-19 pandemic, has prompted pushback from students at various US institutions, including California State University Fullerton, University of Colorado Boulder, Miami University, and University of Tennessee Chattanooga. Protests at schools like City University of New York (CUNY) and UC Berkeley have proven sufficient to convince school administrators to not use the proctoring software.

Proctorio, slammed last year for its CEO's decision to post an adversarial student's chat logs online, did not immediately respond to a request for comment. ®

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