Links to Software Code Excerpts in Tweets Are Fair Use

Phoenix, Arizona—The Electronic Frontier Foundation (EFF) filed a lawsuit today against Proctorio Inc. on behalf of college student Erik Johnson, seeking a judgment that he didn’t infringe the company’s copyrights when he linked to excerpts of its software code in tweets criticizing the software maker.

Proctorio, a developer of exam administration and surveillance software, misused the copyright takedown provisions of the Digital Millennium Copyright Act (DMCA) to have Twitter remove posts by Johnson, a Miami University computer engineering undergraduate and security researcher. EFF and co-counsel Osborn Maledon said in a complaint filed today in U.S. District Court, District of Arizona, that Johnson made fair use of excerpts of Proctorio’s software code, and the company’s false claims of infringement interfered with Johnson’s First Amendment right to criticize the company.

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

Proctoring apps like Proctorio’s are privacy-invasive software that “watches” students through eye-tracking and face detection for supposed signs of cheating as they take tests or complete schoolwork. The use of these “disciplinary technology” programs has skyrocketed amid the pandemic, raising questions about the extent to which they threaten student privacy and disadvantage students without access to high-speed internet and quiet spaces.

Proctorio has responded to public criticism by attacking people who speak out. The company’s CEO released on Reddit contents of a student’s chat log captured by Proctorio after the student posted complaints about the software on the social network. The company has also sued a remote learning specialist in Canada for posting links to Proctorio’s publicly available YouTube videos in a series of tweets showing the software tracks “abnormal” eye and head movements it deems suspicious.

Concerned about how much private information Proctorio collects from students’ computers, Johnson, whose instructors have given tests using Proctorio, examined the company’s software, including the files that are downloaded to any computer where the software is installed.

He published a series of tweets in September critiquing Proctorio, linking in three of those tweets to short software code excerpts that demonstrate the extent of the software’s tracking and access to users’ computers. In another tweet, Johnson included a screenshot of a video illustrating how the software is able to create a 360-degree image of students’ rooms that is accessible to teachers and seemingly Proctorio’s agents.

“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 Gagliano. “We’re asking the court for a declaratory judgment that there is no infringement to prevent further legal threats and takedown attempts against Johnson for using code excerpts and screenshots to support his comments.”

For the complaint:
https://www.eff.org/document/johnson-v-proctorio-complaint

For more on proctoring surveillance:
https://www.eff.org/deeplinks/2020/08/proctoring-apps-subject-students-unnecessary-surveillance

Contact: 
Cara
Gagliano
Staff Attorney

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