On Wednesday in the District of Arizona, a student filed a complaint against online exam proctoring service Proctorio Inc. seeking a declaratory judgment of noninfringement under the Copyright Act, among other things, “in order to finally quash a campaign of harassment designed to undermine important concerns about software used by universities around the United States to monitor student activity.”
According to the complaint, “schools and universities have increasingly adopted surveillance software to observe students as they complete assignments and tests electronically” because of the COVID-19 pandemic. Proctoring software like those offered by Proctorio are designed to ensure test takers adhere to rules and to identify potential cheating “by relying on surveillance methods such as face detection, eye movement tracking, keyboard and mouse monitoring, and audio and visual recording,” which, according to the plaintiff and others, poses privacy and digital security threats.
The plaintiff, a self-proclaimed critic of such surveillance software, stated that “(a)fter carefully reviewing publicly available information, including portions of Proctorio’s software code, (the plaintiff) concluded that the Proctorio software code contradicted Proctorio’s claims about its software and raised a number of privacy, security, and equity concerns.” Subsequently, in an effort to inform his peers and the public, the plaintiff tweeted his conclusions. The complaint noted that for the plaintiff to explain his conclusions, he “linked to excerpts of the software’s code that he had uploaded to the code-sharing websites Pastebin and GitHub. This code was found in files that were automatically saved to (the plaintiff’s) computer when he installed the software.”
The plaintiff argued that the use of this code was fair use and lawful. However, Proctorio allegedly urged the plaintiff to delete the code and analysis. The plaintiff did not delete it, after which Proctorio issued a Digital Millennium Copyright Act removal, according to the complaint. The plaintiff contended that because of “Proctorio’s false claims, Twitter removed several portions of (the plaintiff’s) critical commentary, and Pastebin and GitHub removed the code excerpts (the plaintiff) shared to support his assertions.” The plaintiff argued that he tried to explain the lawfulness of his conduct, to no avail. The plaintiff added that Proctorio is “abus(ing) copyright law to interfere with his speech.”
In particular, the plaintiff claimed that their use is fair because the purpose and character of the uses are noncommercial and educational and that these are transformative when combined as evidence for his tweet. For the nature of the works, Proctorio’s software code and videos, also constitute fair use because “they are primarily factual or functional,” according to the plaintiff. Regarding the amount and substantiality of the code, the plaintiff allegedly used “only those lines of software code that directly supported his tweets. And the Excerpts were a negligible portion—almost certainly less than 0.1%—of the Proctorio Software’s code” and allegedly “qualitatively insubstantial.” The plaintiff also noted that this will not cause market harm or “at least not the kind of harm copyright law is designed to remedy” because the excerpts and video screenshots are available to anyone who installs the software or views them and do not substitute the defendant’s code, and his critiques “are not cognizable market harms under copyright law.” Thus, the plaintiff asserted that these factors weigh in favor of fair use.
The plaintiff’s causes of action are for declaratory judgment of noninfringement and misrepresentation under the Copyright Act. The plaintiff seeks declaratory judgment in his favor; to enjoin the defendants from asserting a copyright claim; an award for damages, costs, and fees; and other relief.
The plaintiff is represented by Osborn Maledon P.A. and the Electronic Frontier Foundation.
