EFF, College Student Sue Proctorio Over DMCAs On Fair Use Critique Tweets Of Software
from the failing-grade dept
Late last year, while the COVID-19 pandemic was gearing up to hit its peak here in the States, we wrote about one college student and security researcher taking on Proctorio, a software platform designed to keep remote students from cheating on exams. Erik Johnson of Miami University made a name for himself on Twitter not only for giving voice to a ton of criticism Proctorio’s software has faced over its privacy implications and inability to operate correctly for students of varying ethnicities, but also for digging into Proctorio’s available source code, visible to anyone that downloads the software. But because he posted that code on PasteBin to demonstrate his critique of Proctorio, the company cried copyright infringement and got Twitter to take his tweets down initially as a result, before they were later restored.
But if Proctorio thought that would be the end of the story, it was wrong. The EFF has now gotten involved and has filed a lawsuit against Proctorio in an effort to end any online harassment of Johnson.
The lawsuit intends to address the company’s behavior toward Johnson in September of last year. After Johnson found out that he’d need to use the software for two of his classes, Johnson dug into the source code of Proctorio’s Chrome extension and made a lengthy Twitter thread criticizing its practices — including links to excerpts of the source code, which he’d posted on Pastebin. Proctorio CEO Mike Olsen sent Johnson a direct message on Twitter requesting that he remove the code from Pastebin, according to screenshots viewed by The Verge. After Johnson refused, Proctorio filed a copyright takedown notice, and three of the tweets were removed. (They were reinstated after TechCrunch reported on the controversy.)
In its lawsuit, the EFF is arguing that Johnson made fair use of Proctorio’s code and that the company’s takedown “interfered with Johnson’s First Amendment right.”
“Copyright holders should be held liable when they falsely accuse their critics of copyright infringement, especially when the goal is plainly to intimidate and undermine them,” said EFF Staff Attorney Cara Gagliano in a statement.
Frankly, it’s difficult to understand what Proctorio’s rebuttal to any of that would be. What Johnson did with his tweets and the replication of the source code that was the subject of his criticism is about as square an example of Fair Use as I can imagine. The use was not intended to actually replicate what Protctorio’s software does. Quite the opposite, in fact. It was intended as evidence for why Proctorio’s software should not be used. It was limited in its use as part of a critique of the company’s software. And it was decidedly non-commercial in nature.
In other words, it was clearly an attempt by Proctorio to silence a critic, rather than any legitimate concern over the reproduction of the source code, which is again freely available to anyone who downloads the browser extension. It’s also worth noting that there is a pattern of behavior of this sort of thing by Proctorio.
Proctorio has engaged critics in court before, although more often as a plaintiff. Last October, the company sued a technology specialist at the University of British Columbia who made a series of tweets criticizing the platform. The thread contained links to unlisted YouTube videos, which Proctorio claimed contained confidential information. The lawsuit drew ire from the global education community: hundreds of university faculty, staff, administrators, and students have signed an open letter in the specialist’s defense, and a GoFundMe for his legal expenses has raised $60,000 from over 700 donors.
It’s the kind of behavior that doesn’t end just because some tweets get reinstated or there is a modicum of public outrage. Instead, it takes a concerted effort by groups like the EFF to force a corporate bully to change its ways. Given Proctorio’s bad behavior in all of this, let’s hope the courts don’t let them off the hook.