BC Court of Appeal upholds copyright infringement claim of exam monitoring software Proctorio

The BC Court of Appeal has ruled in favour of the exam monitoring software Proctorio in a copyright infringement case.

In Linkletter v. Proctorio, Incorporated, 2023 BCCA 160, the University of British Columbia's learning technology specialist Ian Linkletter has expressed opinions on Twitter, criticizing Proctorio's software, a product designed to monitor or "proctor" students writing examinations on their computers at home. Linkletter logged on to Proctorio's online platform and accessed Proctorio's instructional videos on YouTube, which were unlisted. Linkletter shared seven of the links on Twitter. When Proctorio discovered this, it immediately disabled the links.

Proctorio brought an action against Linkletter in breach of confidence and copyright infringement and circumventing a technological protection measure, contrary to the Copyright Act. Linkletter argued that the suit against him was a strategic litigation to silence his public criticism of Proctorio's products. He applied to have Proctorio's action dismissed under the Protection of Public Participation Act (PPPA).

Proctorio argued that provincial legislation such as the PPPA could not prevent claims under a federal statute like the Copyright Act, citing constitutional principles of federal paramountcy and inter-jurisdictional immunity. The trial judge concluded that Proctorio's claims of breach of confidence and copyright infringement should not be dismissed. Linkletter raised the matter to the BC Court of Appeal.

Expression on a matter of public interest

The appellate court agreed with the judge's finding that the sharing of the links amounted to an expression on a matter of public interest because using surveillance software for exam invigilation is a matter of public interest. The court also found that Linkletter's tweets fall under the broad definition of "expression" outlined in the PPPA.

Breach of confidence

Proctorio's breach of confidence claim required it to establish three elements. First, the information had a necessary quality of confidence about it. Second, the circumstances under which the information was imparted gave rise to an obligation of confidence. Third, the defendant made unauthorized use of the information to the plaintiff's detriment.

Linkletter argued that the judge made an error in finding that the information in the tweeted links was confidential because virtually all the information in the videos was allegedly already publicly available before he published the links. However, the judge found that Proctorio had taken steps to keep the information confidential and that the unlisted links were not in the public domain. The judge said Linkletter could only access the Youtube links by signing in as a course instructor and accepting Proctorio's terms of service. The judge further noted that Linkletter had accepted Proctorio's terms of service when he accessed the links.

The judge also found that the circumstances in which Linkletter accessed and distributed the video links demonstrated his awareness of the intended confidentiality of the videos. Further, the appeal court agreed with the judge's finding that Linkletter's comments when sharing the videos suggested that he was aware the videos were not generally available to the public and were intended to be kept confidential. The appeal court also agreed with the judge's finding that there were grounds to believe that Linkletter did not have a valid public interest defence.

Breach of copyright

Proctorio asserted that Linkletter violated their copyright in the videos by communicating, reproducing, or publishing them. Linkletter acknowledged Proctorio's copyright in the videos but argued that copyright is lost when a work is made available online. He claims he only provided a reference by sharing a link and did not transmit the work to users. Linkletter also argued that Proctorio continued to control the public's ability to view the videos because it could remove them.

The trial judge rejected Linkletter's assertions. The trial judge emphasized that the videos were unlisted and accessible only to those who had been granted access to Proctorio's Help Centre. The judge also said Linkletter had acknowledged and agreed to abide by Proctorio's terms of service before he accessed the videos.

Further, the trial judge was not persuaded that by simply posting the tutorial videos on YouTube, Proctorio effectively granted Linkletter and other users a license to share the links through YouTube's terms of service.

The appeal court agreed with the judge's finding that there were grounds to believe that the breach of copyright claim had substantial merit. The court wrote in its decision, "Whether sharing a controlled link to an unlisted video amounts to a publication of the video rather than a mere direction or reference appears to be a novel question which should not be ruled out at this early stage of the proceeding."

The appeal court ultimately ruled that the public interest in continuing the proceeding outweighed the public interest in protecting an expression, which there were reasonable grounds to believe involved sharing confidential and copyrighted information. The court said that the PPPA is intended to function as a mechanism to screen out lawsuits that unduly limit expression matters of public interest through the identification and pretrial dismissal of such actions, but "it must also ensure that a plaintiff with a legitimate claim is not unduly deprived of the opportunity to pursue it." The court dismissed Linkletter's appeal.