Case 2:21-cv-00691-DLR Document 1 Filed 04/21/21 Page 1 of 14
`
`
`
`Eric M. Fraser, 027241
`OSBORN MALEDON, P.A.
`2929 North Central Avenue, Suite 2100
`Phoenix, Arizona 85012
`(602) 640-9000
`efraser@omlaw.com
`
`Cara Gagliano (pro hac vice application to be filed)
`Andrew Crocker (pro hac vice application to be filed)
`Hannah Zhao (pro hac vice application to be filed)
`ELECTRONIC FRONTIER FOUNDATION
`815 Eddy Street
`San Francisco, California 94109
`(415) 436-9333
`cara@eff.org
`andrew@eff.org
`zhao@eff.org
`
`Attorneys for Plaintiff
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
` No.
`
`
`COMPLAINT
`(Jury Trial Demanded)
`
`Plaintiff,
`
`Defendant.
`
`
`
`Erik Johnson,
`
`
`
`
`vs.
`
`Proctorio Inc.,
`
`
`
`
`
`
`INTRODUCTION
` This is a civil action seeking a declaratory judgment of noninfringement
`1.
`under the Copyright Act, 17 U.S.C. §§ 106, 107, as well as injunctive relief and
`damages for misrepresentation of copyright claims under the Digital Millennium
`Copyright Act (“DMCA”), 17 U.S.C. § 512(f), in order to finally quash a campaign of
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`harassment designed to undermine important concerns about software used by
`universities around the United States to monitor student activity.
`As a consequence of the COVID-19 pandemic, schools and universities
`2.
`have increasingly adopted surveillance software to observe students as they complete
`assignments and tests electronically. These “proctoring” computer programs, like the
`Proctorio Software owned by Defendant Proctorio Inc. (“Proctorio”), are ostensibly
`intended to ensure adherence to assignment rules and to identify potential cheating by
`relying on surveillance methods such as face detection,1 eye movement tracking,
`keyboard and mouse monitoring, and audio and visual recording. Students, teachers,
`and civil liberties advocates have noted that such software may compromise student
`privacy and digital security while exacerbating socioeconomic divides in student
`performance.
`Plaintiff Erik Johnson, a college student whose university uses the
`3.
`Proctorio surveillance software, is one such critic. After carefully reviewing publicly
`available information, including portions of Proctorio’s software code, Johnson
`concluded that the Proctorio software code contradicted Proctorio’s claims about its
`software and raised a number of privacy, security, and equity concerns. To inform his
`classmates and the public, he shared his conclusions on Twitter, a social media website.
`To help explain his conclusions, Johnson 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 Johnson’s computer when he installed
`the software. Johnson’s use of the code was a textbook fair use, and obviously lawful
`under Section 107 of the Copyright Act.
`Proctorio promptly responded by pressuring Johnson to delete his code
`4.
`analysis. When Johnson resisted, Proctorio turned to the DMCA to force the material’s
`removal. As a result of Proctorio’s false claims, Twitter removed several portions of
`
`1 Face detection is a technology that detect faces as well as facial movement and
`direction within an image or video.
`
`2
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`Case 2:21-cv-00691-DLR Document 1 Filed 04/21/21 Page 3 of 14
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`Johnson’s critical commentary, and Pastebin and GitHub removed the code excerpts
`Johnson shared to support his assertions.
`Johnson has made every effort to explain the lawfulness of his conduct to
`5.
`Proctorio, to no avail. To ensure that Proctorio will finally cease its efforts to abuse
`copyright law to interfere with his speech, Johnson has no choice but to seek a
`declaration of noninfringement.
`PARTIES, JURISDICTION, AND VENUE
`Plaintiff Erik Johnson is an individual domiciled in Libertyville, Illinois.
`6.
`On information and belief, Defendant Proctorio is a corporation that
`7.
`maintains a principal place of business in Scottsdale, Arizona.
`This Court has subject-matter jurisdiction over this claim under the
`8.
`Copyright Act (17 U.S.C. §§ 101 et seq.), 28 U.S.C. §§ 1331 and 1338, and the
`Declaratory Judgment Act (28 U.S.C. § 2291).
`On information and belief, Proctorio has sufficient contacts with this
`9.
`district, both generally and in connection to the events herein alleged, that it is subject to
`the exercise of this Court’s jurisdiction.
`10. Venue is proper in this district under 28 U.S.C. § 1391.
`GENERAL ALLEGATIONS
`Johnson’s Speech
`A.
`Erik Johnson is a security researcher and an undergraduate student in
`11.
`computer engineering at Miami University in Oxford, Ohio. Due to the COVID-19
`pandemic, Johnson attended all of his classes virtually from his home in Illinois from
`August 2020 through December 2020. Although he returned to campus in January 2021,
`Johnson’s courses have continued to be conducted almost exclusively online.
`12. During this period of remote schooling, some of Johnson’s instructors
`have chosen to administer exams using remote exam proctoring software offered by
`Proctorio (the “Proctorio Software”). On information and belief, the Proctorio Software
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`works by using eye tracking, face detection, and computer monitoring to surveil exam-
`takers and flag allegedly “suspicious” behaviors as possible indications of cheating.
`Like many other students, Johnson was concerned about the Proctorio
`13.
`Software, including the risks it poses to students’ privacy and security. Currently,
`Johnson is a member of a subcommittee appointed by his university’s senate tasked
`with investigating whether or not the use of remote proctoring services such as
`Proctorio is in line with his university’s values. He is the only undergraduate on this
`subcommittee comprised mainly of graduate students and university officials.
`To explore Proctorio’s potential harm to students’ interests, Johnson
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`examined Proctorio Software files that are automatically downloaded to any computer
`(including Johnson’s) that installs the Proctorio Software: (1) language files, which
`contain lists of messages that the software is able to display on a computer to the
`software user (“display messages”) in multiple natural (human) languages, including
`English2; and (2) a file written in the computer programming language JavaScript that
`contained both intentionally scrambled (or “obfuscated”) code and non-scrambled plain
`text.
`
`15. On September 7, 2020, following his investigation of the software code in
`these files, Johnson published a tweet thread3 critiquing Proctorio and the Proctorio
`Software. Annotated screenshots of these tweets are attached as Exhibit 1. Among other
`things, Johnson’s tweets identified contradictions between Proctorio’s public statements
`and the actual functionality of the software as indicated by its code; demonstrated the
`
`
`2 Language files are used to facilitate software use and adaptation in different
`countries or regions and allows the software to display the appropriate natural language
`based on location.
`3 Tweets are user-generated content posted to the social media website Twitter. A
`thread is a group of tweets linked together by the user who posted them so that the
`tweets appear in chronological order instead of Twitter’s default of reverse-
`chronological order. Because users can choose whether new tweets they post are linked
`to any of their existing tweet threads, threading allows for discussions longer than the
`per-tweet character limit and that span some period of time.
`
`4
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`invasiveness of the Proctorio Software; illustrated the high level of access that the
`Proctorio Software has to users’ computers; and noted the difficulty of determining the
`full extent of Proctorio’s collection of and access to user data.
`To illustrate the basis for his conclusions, Johnson included, in three of
`16.
`the September 7 tweets, links to relevant software code that he had excerpted from the
`language files and uploaded to the website Pastebin.4 Exhibit 1 at 1–2.
`In the first of these tweets, Johnson listed various metrics that the
`17.
`Proctorio Software monitors during exams and apparently uses to determine each exam-
`taker’s “suspicion level.” He also linked to a code excerpt of the display messages
`referencing those same metrics. A printout of that code excerpt is attached as Exhibit 2.
`Among the metrics named in Johnson’s tweet and found in the linked code is “eye
`movement,” something Proctorio claims its software does not track.
`In the second tweet, Johnson discussed how the Proctorio Software
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`compares different exam-takers to one another using these metrics. He also linked to a
`code excerpt of the display messages for reporting these statistics. A printout of that
`code is attached as Exhibit 3.
`In the third tweet, Johnson identified various reasons the Proctorio
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`Software may terminate a student’s exam, such as interruptions in internet connectivity
`and plugging in an additional monitor. He also linked to a code excerpt listing the
`display messages for 20 different bases for exam termination. A printout of that code is
`attached as Exhibit 4.
`In another of his September 7 tweets within the tweet thread, Johnson
`20.
`reported: “In some cases, you will have to scan your room. At the begining [sic] of the
`exam, and during if your suspicion level raises. Proctorio compiles the footage into a
`
`
`4 Pastebin is a website that allows users to upload snippets of text, most often
`software code, for public viewing. One common use of these “pastes” is to share text
`referenced in a message that is constrained by character limits, such as the 280-character
`limit for tweets.
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`5
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`street-view like 360 image of your room/house that your professor can access and
`seemingly proctorio ‘agents’ too.” With the tweet, Johnson included a screenshot of a
`tutorial video showing where these room scan images can be viewed (the “Video
`Screenshot”). Exhibit 1 at 2.
`21. Over the next week, Johnson continued to post criticisms of Proctorio and
`the Proctorio Software to the same tweet thread. In one September 11 tweet, Johnson
`included a Pastebin link to three lines of software code from a JavaScript file that
`Johnson understood to identify programs blacklisted by Proctorio—i.e., computer
`programs that cannot be used simultaneously with the Proctorio Software. Exhibit 1 at
`6. That code excerpt, a printout of which is attached as Exhibit 5, contained only code
`that was not scrambled in the source file. The purpose of this tweet was to show that
`Proctorio prevents users from taking steps that could mitigate the intrusiveness of the
`Proctorio Software, such as using a virtual machine for “sandboxing.”5
`B.
`Fair Use
`To the extent that the code excerpts associated with Johnson’s September
`22.
`7 and September 11 tweets (collectively, the “Excerpts”) and the Video Screenshot
`contained copyrightable material, Johnson’s uses of that material are clear-cut fair
`uses—no different from quoting a book in a book review.
`The fair use analysis centers on four statutory factors: (1) the purpose and
`23.
`character of the use; (2) the nature of the copyrighted work; (3) the amount and
`substantiality of the portion used; and (4) the effect of the use on the market for the
`copyrighted work. These factors are analyzed together in light of the fundamental
`purposes of copyright.
`The purpose and character of Johnson’s uses are noncommercial and
`24.
`educational, serving many, if not all, of the favored purposes identified in the preamble
`to Section 107 of the Copyright Act. Johnson used the Excerpts and Video Screenshot
`
`5 Sandboxing is a computer-security practice that involves isolating a specific
`program to prevent it from accessing other programs or system resources.
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`6
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`to report his findings from his investigation of the Proctorio Software and to provide
`evidence supporting his assertions. The uses are also transformative: they combined the
`copyrighted material with the expression in Johnson’s tweets to add new meaning and
`serve the new and different purpose of sharing evidence-backed criticism of Proctorio
`with the public.
`The nature of the works at issue—Proctorio’s software code and tutorial
`25.
`video—also weighs in favor of fair use because they are primarily factual or functional.
`Moreover, Johnson used the works only for their factual content, not their expressive
`value.
`
`The amount and substantiality of the copyrighted material used also weigh
`26.
`in favor of fair use. Johnson included 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. They also were qualitatively
`insubstantial: the three language file excerpts contained nothing but message text that
`would be displayed to someone reviewing exam statistics, and the JavaScript file
`excerpt contained only a list of blacklisted programs. As to the Video Screenshot,
`Johnson used a single still frame from the full video to demonstrate the ability of
`professors using Proctorio, and potentially Proctorio employees, to view 360-degree
`images of students and their homes.
`Finally, Johnson’s use will not cause market harm—at least not the kind
`27.
`of harm copyright law is designed to remedy. The Excerpts—essentially a list of display
`messages and types of computer programs—are available to anyone who installs the
`Proctorio Software and cannot possibly serve as a market substitute for the Proctorio
`Software. Nor does the Video Screenshot serve as a market substitute for the full
`tutorial video. And to the extent Johnson’s critical uses of the Excerpts may cause
`Proctorio reputational damage or reduce demand for the Proctorio Software because of
`what they reveal about it, those are not cognizable market harms under copyright law.
`Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 591–92 (1994).
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`Proctorio’s Campaign of Harassment
`C.
`28. On September 7, soon after tweeting about Proctorio, Johnson received a
`private Twitter message from Proctorio’s CEO, Mike Olsen. Olsen demanded that
`Johnson take down the Excerpts, claiming that they violated Proctorio’s terms of service
`and “undermine[d] the integrity of the test-taking process.” Olsen did not identify any
`copyright-related basis for his demand. In reply, Johnson explained that the Excerpts
`came from files accessible to anyone who installs the Proctorio Software, and that he
`did not believe he had agreed to any terms of service before accessing them. A
`screenshot of the exchange between Olsen and Johnson is attached as Exhibit 6.
`29. On September 8, Johnson discovered that his IP address had been banned
`from accessing Proctorio’s website and services. As a result, Johnson was forced to seek
`special accommodations for taking exams that his professors administered through
`Proctorio.
`30. Based on documents obtained through a records request to Miami
`University, Johnson is informed and believes that on September 9, a Proctorio
`representative requested that the university ask Johnson to remove any links to Proctorio
`materials from his tweets. On information and belief, Proctorio again did not cite any
`copyright-related basis for its request. The university declined to make any such request
`of Johnson.
`31. On October 19, Johnson received an email from Twitter notifying him that
`the three September 7 tweets that included Pastebin links had been taken down in
`response to a notice of copyright infringement lodged by Proctorio. The email provided
`a copy of the DMCA notice, which was signed by Proctorio’s marketing director.
`Exhibit 7. The notice also identified the September 7 tweet that included the Video
`Screenshot as allegedly infringing, but Twitter did not remove that tweet at that time.
`32. After receiving the email from Twitter, Johnson discovered that Pastebin
`had disabled access to the three Excerpts associated with the removed tweets. A notice
`that appeared in place of each of those Excerpts stated that access had been disabled by
`
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`Case 2:21-cv-00691-DLR Document 1 Filed 04/21/21 Page 9 of 14
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`Pastebin on September 28. On information and belief, the Excerpts were removed by
`Pastebin in response to a DMCA notice lodged by Proctorio. Johnson did not receive
`notice of the removal from Pastebin, and the material has not been restored.
`33. On October 30, Johnson submitted a counternotice under section 512(g)
`of the DMCA to Twitter, requesting restoration of his tweets. On November 5, Johnson
`received an email from Twitter stating that it had found Proctorio’s DMCA notices
`incomplete and had restored Johnson’s tweets pending further information from
`Proctorio.
`34. On or around November 11, Johnson uploaded the Excerpts to GitHub,
`another code-sharing website, and appended updates to the September 7 and 11 tweets
`that provided links to the reposted code excerpts. Screenshots of the updated tweets are
`attached as Exhibit 8.
`35. On November 23, GitHub informed Johnson that it had disabled access to
`the Excerpts in response to a DMCA notice submitted by Proctorio. In addition to its
`allegations of copyright infringement, the notice also falsely stated that Johnson had
`obtained the code through “reverse engineering and unauthorized hacking.” Exhibit 9.
`Johnson submitted a counternotice on November 24, and GitHub restored access to his
`content on or around December 9.
`36. On November 29, Johnson discovered that Twitter had once again taken
`down the three September 7 tweets that were the subject of his October 30
`counternotice, without notice to him. In addition, Johnson discovered that Twitter had
`also removed (1) the Video Screenshot from the fourth September 7 tweet identified in
`Proctorio’s September DMCA notice to Twitter and (2) the September 11 tweet about
`blacklisted programs, which was not mentioned in the September DMCA notice.
`Counsel for Proctorio confirmed to Johnson’s counsel that Proctorio had submitted a
`second DMCA notice to Twitter. The Excerpt linked to in the September 11 tweet was
`also removed by Pastebin, again without sending notice to Johnson.
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`In a November 30 phone call, Johnson’s counsel presented Proctorio’s
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`counsel with the fair use analysis set forth in paragraphs 22 through 27, supra.
`Proctorio’s counsel denied that Johnson’s uses were fair, but that denial was premised
`on multiple misstatements of fact.
`For example, Proctorio’s attorneys repeated the claim from the GitHub
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`notice that the excerpted code could be obtained only by “reverse engineering” and
`“hacking,” which they cited to argue that Johnson’s use of the excerpts would harm the
`market for the Proctorio Software by revealing information (which is not copyrightable)
`to competitors and exam-takers. On information and belief, Proctorio knew that the
`excerpted code in fact was contained in unprotected files that could be read by anyone
`who installed the Proctorio Software (including competitors and exam-takers). See
`Exhibit 6 (September 7–8 Twitter conversation between Johnson and Proctorio’s CEO).
`Proctorio’s counsel also asserted that Johnson had shared the entirety of
`39.
`the Proctorio Software code. On information and belief, Proctorio would have known
`from even cursory examination of the Excerpts that they represented only a miniscule
`portion of the software’s code.
`40. Despite the fact that Johnson linked to the Excerpts in tweets that both
`directly related to the linked material and were part of a multi-tweet thread wherein he
`excoriated and exposed Proctorio for what he viewed as shortcomings of the Proctorio
`Software and misrepresentations by Proctorio, Proctorio nevertheless asserted that the
`Excerpts were unconnected to any commentary or criticism. On information and belief,
`Proctorio knew at the time of sending the DMCA notices to Pastebin and GitHub that
`the Excerpts were in fact uploaded by Johnson specifically to support his critical
`commentary.
` Johnson’s counsel informed Proctorio’s attorneys of all of these
`41.
`inaccuracies. But in subsequent email communications, Proctorio nonetheless continued
`to assert that Johnson’s uses were infringing and did not withdraw its DMCA notices.
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`42. On December 22, Johnson submitted to Twitter a counternotice requesting
`restoration of all content associated with the September 7 and 11 tweets. On January 15,
`2021, Twitter notified Johnson that it had found Proctorio’s DMCA notices to be invalid
`and had restored the affected tweets and media.
`43. As a collateral consequence of Proctorio’s improper copyright claims,
`Johnson was informed by a professor that Johnson’s application to work in his
`university’s IT Security department will likely be rejected due to his adversarial legal
`relationship with the school vendor Proctorio.
`
`
`CLAIMS FOR RELIEF
`Count 1
`Declaratory Judgment of Noninfringement
`
` Johnson repeats and incorporates herein by reference the allegations in
`44.
`the preceding paragraphs of this complaint.
`There is a real and actual controversy between Johnson and Proctorio
`45.
`regarding whether Johnson’s uses of the Excerpts and the Video Screenshot constitute
`infringement of a copyright interest lawfully held or administered by Proctorio.
`Johnson contends that his creation and use of the Excerpts and the Video
`46.
`Screenshot were and are lawful, consistent with the doctrine of fair use, the Copyright
`Act, and the First Amendment to the United States Constitution, and judicial decisions
`construing such laws, doctrines, and provisions.
`Every time that Johnson has linked to excerpts from Proctorio’s software
`47.
`code to comment on and criticize the Proctorio Software, Proctorio has exploited the
`DMCA to undermine Johnson’s commentary.
`Proctorio has refused to withdraw its takedown requests. Pastebin has not
`48.
`restored the material that it took down based on Proctorio’s claims of infringement.
`Proctorio continues to maintain that Johnson’s expression is infringing,
`49.
`even in the face of evidence contradicting core assumptions of its legal arguments.
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`Proctorio’s pattern of baseless DMCA notices and its continued refusal to
`50.
`acknowledge Johnson’s activity as noninfringing have chilled Johnson from engaging in
`constitutionally protected speech. Johnson continues to comment on and criticize
`Proctorio and the Proctorio Software but has not shared materials that support his
`comments in order to avoid further takedowns and legal threats by Proctorio. He has
`also refrained from further investigation of the Proctorio Software out of fear that
`reporting on his findings will elicit more harassment.
`Johnson is entitled to a declaration that his use of code excerpts and
`51.
`screenshots to support his commentary does not violate copyright law.
`Count 2
`Misrepresentation Under 17 U.S.C. § 512(f)
`Johnson repeats and incorporates herein by reference the allegations in the
`52.
`preceding paragraphs of this complaint.
`Johnson’s uses of the Excerpts and the Video Screenshot do not infringe
`53.
`any copyright interest held or administered by Proctorio because they are lawful fair
`uses under 17 U.S.C. § 107.
`54. On information and belief, Proctorio knew that Johnson’s use of the
`Excerpts and the Video Screenshot did not infringe any Proctorio copyright interest
`when they sent notices of infringement to Twitter, Pastebin, and GitHub under the
`DMCA.
`Proctorio violated 17 U.S.C. § 512(f) by knowingly materially
`55.
`misrepresenting that Johnson’s use of the Excerpts and the Video Screenshot infringed
`Proctorio’s copyrights.
`56. As a direct and proximate result of Proctorio’s actions, Johnson has been
`injured substantially and irreparably. Such injury includes, without limitation, the time
`and effort associated with responding to Proctorio’s multiple fraudulent infringement
`notices, as well as harm to his free speech rights under the First Amendment.
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`Case 2:21-cv-00691-DLR Document 1 Filed 04/21/21 Page 13 of 14
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`
`
`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff Johnson requests the following relief against Defendant
`Proctorio:
` a declaratory judgment that Johnson’s uses of the Excerpts and the Video
`1.
`Screenshot do not infringe any copyright interest held or administered by Proctorio;
`an order enjoining Proctorio, its agents, servants, employees, successors,
`2.
`and assigns, and all others in concert and privity with Proctorio, from asserting a
`copyright claim, including the lodging of a notice of infringement with any third party,
`against Johnson alleging copyright infringement arising out of use of the Excerpts, the
`Video Screenshot, or any other excerpts of Proctorio Software code or screenshots of
`Proctorio materials, in connection with commentary or criticism about Proctorio or the
`Proctorio Software;
`damages according to proof;
`3.
`4.
`attorneys’ fees pursuant to 17 U.S.C. § 512(f); other portions of the
`Copyright Act, including Section 505; on a Private Attorney General basis; or otherwise
`as allowed by law;
`Johnson’s costs and disbursements; and
`5.
`6.
`such other and further relief as the Court shall find just and proper.
`
`
`Plaintiff hereby requests a jury trial for all issues triable by jury, including
`
`without limitation those issues and claims set forth in any amended complaint or
`consolidated action.
`
`DATED this 21st day of April, 2021.
`
`
`
`
`OSBORN MALEDON, P.A.
`
`
`By s/ Eric M. Fraser
`
`Eric M. Fraser
`
`2929 North Central Avenue, Ste. 2100
`
`Phoenix, Arizona 85012-2793
`
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`Case 2:21-cv-00691-DLR Document 1 Filed 04/21/21 Page 14 of 14
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`ELECTRONIC FRONTIER FOUNDATION
`Cara Gagliano
`
`(pro hac vice application to be filed)
`Andrew Crocker
`
`(pro hac vice application to be filed)
`Hannah Zhao
`
`(pro hac vice application to be filed)
`815 Eddy Street
`San Francisco, California 94109
`
`Attorneys for Plaintiff
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