EFF Client Erik Johnson and Proctorio Settle Lawsuit Over Bogus DMCA Claims

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EFF client Erik Johnson, a Miami University computer engineering undergraduate, reached a settlement in the lawsuit we brought on his behalf against exam surveillance software maker Proctorio, in a victory for fair use of copyrighted material and people’s right to fight back against bad faith Digital Millennium Copyright Act (DMCA) takedowns used to silence critics.

Johnson, who is also a security researcher, sued Proctorio a year ago after it misused the copyright takedown provisions of the DMCA to remove his Twitter posts. Proctorio had gone after a series of tweets Johnson published that critiqued the company and linked to short excerpts of its software code. The tweets also linked to a screenshot of a video illustrating how the software captures images of students’ rooms that are accessible to teachers and potentially Proctorio’s agents.

Under the settlement, Proctorio dropped its DMCA claims, and dismissed harassing copyright and trade libel claims it had filed against Johnson in the case. Johnson’s tweets, which had been restored by Twitter shortly after he challenged the takedown, are and will remain up. Johnson agreed to drop the lawsuit.

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. Their use skyrocketed during the pandemic, leading privacy advocates and students to protest this new kind of surveillance. Johnson, whose instructors used Proctorio, was concerned about how much private information the company collects from students’ computers, and used his skills as a security researcher to examine the company’s software.

Shining a light on how the software worked rankled Proctorio, but did not infringe on its copyrights. As we said when we brought the lawsuit, using pieces of code to explain your research or support critical commentary is no different from quoting a book in a book review.

DMCA abuse is not new. Bogus copyright complaints have threatened all kinds of creative expression, opinions, and speech on the Internet. Recipients of bogus takedown notices can fight back because DMCA provisions allow users to challenge improper takedowns.

Unfortunately, not everyone has the resources to take on big business interests that use DMCA to bully people and retaliate against critics, as was the case here. All kinds of fair use, non-infringing content is removed, further emboldening rightsholders to use the DMCA in bad faith.

In this case, Johnson fought back, with our help.

Falsely accusing researchers, creators, or a parent who posted a cute video of their child dancing is seriously wrong, especially when the goal is plainly to intimidate and undermine. We hope this case shows that people will fight back if they can and deters other rightsholders from using bogus DMCA claims to harass their critics.

* This article was originally published here


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