Anti-Cheat Student Software Proctorio Issuing DMCA Takedowns Of Fair Use Critiques Over Its Code
from the fail dept
As we’ve discussed before, the COVID-19 pandemic has forced many educational institutions into remote learning and with it, remote test-taking. One of the issues in all of that is how to ensure students taking exams are doing so without cheating. Some institutions employ humans to watch students over video calls, to ensure they are not doing anything untoward. But many, many others are using software instead that is built to try to catch cheating by algorithmically spotting “clues” of cheating.
Proctorio is one of those anti-cheat platforms. The software has been the subject of some fairly intense criticism from students, many of whom allege both that the software seems to have trouble interpreting what darker-skinned students are doing on the screen and that it requires a ton of bandwidth, which many low-income students simply don’t have access to. Erik Johnson, who is a student and security researcher, wanted to dig into Proctorio’s workings. Given that it’s a browser extension, he simply downloaded it and started digging through the readily available code. He then tweeted out his findings, along with links to Pastebin pages where he had shared the code he references in each tweet. Below are some of the tweets that you can reference for yourself.
Here’s a list of metrics Proctorio looks for & flags:
– Changes in audio levels
– Abnormal clicking
– Abnormal copy & pastes
– Abnormal exam duration
– End times
– Eye movement
– # of faces
– Head movement
– Abnormal movement of mouse
& more https://t.co/iB6zsjvfcB
— Erik Johnson (@ejohnson99) September 8, 2020
It’s important to note that these tweets are part of a regular string that Johnson has put out critiquing the way Proctorio functions. In other words, due to all the consternation over how Proctorio works among students, this is public criticism from a security researcher showing his work from source code that literally anyone can see if they download Proctorio. And, while you can see the tweets above currently, Proctorio initially had them taken down via DMCA takedown requests.
Those three tweets are no longer accessible on Twitter after Proctorio filed its takedown notices. The code shared on Pastebin is also no longer accessible, nor is a copy of the page available from the Internet Archive’s Wayback Machine, which said the web address had been “excluded.”
A spokesperson for Twitter told TechCrunch: “Per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives.”
Johnson provided TechCrunch a copy of the takedown notice sent by Twitter, which identified Proctorio’s marketing director John Devoy as the person who requested the takedown on behalf of Proctorio’s chief executive Mike Olsen, who is listed as the copyright owner.
When asked to comment at the time, Proctorio noted that just because anyone can see the code by downloading the software doesn’t mean reproducing it is not a copyright violation. And that’s true, although quite a stupid bit of copyright enforcement. What Proctorio didn’t mention is that this sort of critique and use of copyrighted content in furtherance of that critique is precisely what Fair Use is meant to protect. That the company clearly did this as a method for getting some critical tweets taken down also went unmentioned.
“This is really a textbook example of fair use,” said EFF staff attorney Cara Gagliano. “What Erik did — posting excerpts of Proctorio’s code that showed the software features he was criticizing — is no different from quoting a book in a book review. That it’s code instead of literature doesn’t make the use any less fair.”
“Using DMCA notices to take down critical fair uses like Erik’s is absolutely inappropriate and an abuse of the takedown process,” said Gagliano. “DMCA notices should be lodged only when a copyright owner has a good faith belief that the challenged material infringes their copyrighted work — which requires the copyright owner to consider fair use before hitting send.
Which is probably why Twitter eventually reinstated Johnson’s tweets in their entirety, although the message sent to him was that it did so because Proctorio’s DMCA notice was “incomplete”. Whatever the hell that means. You sort of have to wonder if the incomplete-ness of the notices would have been discovered if Johnson and the EFF hadn’t kicked up a shitstorm about it.
Meanwhile, because of course, a lot more people know about the criticism of Proctorio thanks to its efforts to try to silence criticism. Isn’t there a moniker for that?