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.

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Companies: eff, proctorio

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Comments on “EFF, College Student Sue Proctorio Over DMCAs On Fair Use Critique Tweets Of Software”

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31 Comments
This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

Rather than engage with our critics and address any issues they might have raised, we went full legal.
This totally will not backfire on us like the other times we have done it.
We have such little faith in our product we spend more hiding its numerous flaws with legal threats than fixing the damn code.

We helped create this magical idea that we can keep students from cheating in the age of at home learning, despite there being no actual evidence of a jump in it happening. I mean 4 quiz questions & an instructor can assess if the students done the work or not.

Instead we unleashed a wholly untested, unvetted, product on people in the name of profits. We like the idea of forcing the schools to pay as well as the students paying for us spying on them & opening up privacy holes into their lives. Who cares if they get hacked, we’re getting paid.

We here at Streisand Co, formerly Proctorio, believe that no one will notice what he have done & there will be no further investigations of our shitty practices, bad code, & general douchebaggery.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

So I know it’s crazy, but I have this strange notion I just can not get rid of.

I think school should (I carefully did not write ‘are’) be a place to learn critical/rational thinking.

But I can’t help but feel that not much critical or rational thought when into the design of some of these ‘remote learning’ systems. Do the authors even understand the problem they should be trying to solve (here’s a hint: if the think I stated above was actually the goal, then reducing cheating is not actually a goal… but it would be a incidental fall out of a good design).

That Anonymous Coward (profile) says:

Re: Re: Re:

ProctorIo showed up and told schools how students were going ‘dark’ and that if they didn’t use this program they all would cheat & ruin the schools reputation.
Critical thinking stopped, our reputation matters more than anything else so we engaged total surveillance.

See also: The several people taking the bar exam with the demanded software who were left hacked, bank accounts emptied, bricked laptops… and the Bar making less than veiled threats about complaining might mean you aren’t fit to get on the bar.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Public outrage: 'Meh'. Profits tank: Engage panic mode

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.

Better yet schools can apply some real pressure and punishment in the form of not using their software, because if there’s one thing that will get a company’s attention it’s a threat to their profits.

Anonymous Coward says:

I would expect better from EFF

For the most part, I agree with EFF. But their lawyers seem to have dropped the ball when they said “interfered with Johnson’s First Amendment right.” Reason is quite simple, ProctorIo is not a government agency. Proctorlo is free to object to what Johnson us saying as much as they want. Of course, we still have the freedom to ignore them as well.

sumgai (profile) says:

Re: I would expect better from EFF

The problem comes to a head from a slightly circuitous route. While Proctorio is not itself a government actor, nor does being a contractor to a public school make them a government actor, the fact remains that they abused the DMCA process via the courts. Since the courts are indeed part of the overall government structure, we now have nexus to 1A, and that puts Proctorio on the hot seat.

Using "free speech" to object to another person’s free speech is fine. But

… we still have the freedom to ignore them as well.

is hard to accomplish when it makes the news, whether for a criminal or a civil action.

Creating a "novel" use of the law, particularly one that was not intended by the legislators, always brings scrutiny of the undesired sort. Proctorio will go down in flames on this one.

Tanner Andrews (profile) says:

Re: I would expect better from EFF

ProctorIo is not a government agency

True. But a school board paying them may be.

Even if not, there is a First Amendment right to criticize public figures, New York Times Co. v. Lester B. Sullivan, 376 U.S. 254 (1964), and Proctorio surely qualify as such if they are providing government-mandated software. So gather some facts and criticize them at will.

Scary Devil Monastery (profile) says:

Re: I would expect better from EFF

"ProctorIo is not a government agency."

Well, no, but they do happen to be employed by government to do what they are currently criticized of doing.
Government doesn’t get to weasel out of 1A just by being the guy saying "Will no one rid me of this troublesome priest?" to the people in their employ.

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Christenson says:

Impossible Quest

How can this software possibly work???

Scenario:
If the software did not break my computer, I have my screen shared via teams/zoom/skype, and audio and written answers come back over my smartphone sitting out of camera view in my lap if I didn’t just let my friend do the mouse clicks and keystrokes.

If the software did break my computer, well, it’s a facetime call or a second computer with a camera watching the screen just out of view of my first computer.

This comment has been flagged by the community. Click here to show it.

tp (profile) says:

Re: Re:

you aren’t allowed to read/examine/learn about the software the school made you use

This is basically a trap. The real purpose of the software is to detect if you’re desperate enough to get new learning material that you’ll do illegal actions to get access to the material, like circumventing technological protection measures/hacking the school principle’s email account/reading the source code of the grading system to find how to cheat in the exams/blocking the camera feeds that let exam supervisors from checking that nothing bad is happening…

Basically, the real problem is that some people are so desperate to get new learning material that they’ll violate laws to get more of it. Computer security students are one of the easiest folks to be fall into this trap, given that large section of the available "teaching material" are behind login systems etc…

This comment has been flagged by the community. Click here to show it.

tp (profile) says:

Re: Re: Re: Re:

one of that excuses the decision from Proctorio to silence criticism via the DMCA.

It’s not a valid criticism if a student is against school’s system of controlling the masses. This is similar problem than how individual people in china shouldn’t publish their critique of the systems used to control millions and millions of chinese citizens. Basically the controls needed for controlling large number of people are significantly more onerous than what single individual can give critique.

The techniques for controlling masses of people are at different level compared to the individual’s freedoms and free expression.

Complaining about the practices is not really helping solve the underlying problem.

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