Higher Education Law Report

In a decision issued last week, the U.S. District Court for the Northern District of Ohio ruled that a public institution conducted an unreasonable “search,” in violation of the Fourth Amendment to the United States Constitution, by performing a visual inspection of a student‘s remote testing location prior to an online exam.

As is customary, the institution in question (Cleveland State University) reserved the right to employ a variety of safeguards designed to ensure integrity in online academic exercises. Among other things, the University provided instructors discretion to require students to show their surroundings via webcam before, during or after an exam, in order to demonstrate that they were not using prohibited resources or assistance. The student in question was scheduled to take a chemistry examination and was notified approximately two hours prior to the start of the exam that the proctor would be checking his surroundings by visual observation. The proctor did so at the start of the exam, asking the student to perform a room scan that lasted “less than a minute, and as little as ten to twenty seconds.” The student complied with the request, but subsequently sued the University claiming that he had “confidential settlement documents” in the form of IRS forms 1099 in his room that could not be secured prior to the examination (the proctor testified that she did not see any tax documents during the room scan).

In a somewhat surprising decision, the court held that the room scan was an unreasonable search in violation of the Fourth Amendment. Under applicable precedent, whether a particular search is reasonable “is judged by balancing its intrusion on the individual‘s Fourth Amendment interests against its promotion of legitimate governmental interests."¹ While acknowledging the University’s interest in ensuring academic integrity, the court nevertheless found the room scan requirement to be unreasonable, among other reasons because the instructor announced the requirement after the start of the course (theoretically leading the student to believe he would not be subject to a room scan until shortly before the time of his test), and because other students could see the room scans. The court also expressed skepticism that the room scans would be effective in preventing cheating, and asserted that the University had other procedural safeguards available to guard against cheating, such as “employing proctors to monitor for suspicious movement or using proctoring programs that perform functions like preventing students from accessing the internet or other programs during the test, recording students during tests, and using artificial intelligence to detect suspicious movement or plagiarism.” With apparent disregard for pedagogical considerations and academic freedom, the court also noted that alternatives to tests, such as projects or papers, might minimize or eliminate the need for remote room scans. In consideration of these factors, the court determined that the student’s privacy interests outweighed the University’s interests in enabling the proctor to view his room and concluded that the room scan was unconstitutional.

This decision is perplexing on many levels, most significantly in that it apparently reflects a determination that conducting a visual inspection of the testing environment for as little as ten seconds after having given a student two hours’ advance notice to secure items he did not wish to be viewed, in the interest of academic integrity, was unreasonable. That said, the likely impact of this decision outside its immediate context, if any, is questionable. For example, it should have no impact on private institutions, and much of the court’s reasoning seems to have revolved around the specific facts of the case, including a perceived lack of consistency in messaging to students as to whether room scans would be required, and the degree of advance notice provided to students. It is possible, and perhaps even likely, that early and consistent messaging in this regard, including timely guidance to students that they should secure any items they do not wish to be viewed, will protect against similar results in other contexts.

If you have any questions, please contact Philip Zaccheo, any attorney in Bond's higher education practice or the Bond attorney with whom you are regularly in contact.

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^{1  Skinner v. Railway Labor Execs.' Ass'n, 489 U.S. 602, 619 (1989) (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979))}

Late last month, Twitter received a DMCA takedown demand from NPG Records, Inc., Prince’s record label, to remove a six-second video hosted on Twitter’s popular new Vine application. Vine is a mobile application (currently available only on iOS systems) that allows users to create and share videos that are a maximum of six seconds long.  The relatively new social media start-up, which officially launched in early 2013 after being purchased by Twitter, also lets users comment on videos and follow other users.  Despite the six-second limit – or perhaps because of it – Vine users are creating and sharing astonishingly imaginative and innovative content via the platform (be sure to view the Editor’s Pick section). As with any content-sharing platform, however, there is the possibility of intellectual property abuse, including both trademark and copyright abuse. The Digital Millennium Copyright Act To combat online copyright infringement, the Digital Millennium Copyright Act, or DMCA, protects content providers such as Vine from liability for alleged copyright infringement (a “safe harbor”) in exchange for the provider’s strict adherence to a process for removing alleged infringing material when they receive notification of an infringement claim from a copyright holder. In March, NPG Records sent a DMCA request to Twitter demanding that eight Vines be removed.  Twitter publicly publishes every DMCA request it receives at Chilling Effects, and the NPG Records request is available here. Copyright Infringement or Fair Use? According to a tweet from the content’s creator, @ZackTeibloom, the eight Vines reportedly contained “Two Purple Rain videos, Prince talking, Prince gyrating against a chair, Snoop from “The Wire” dancing, typical Prince show.” It’s not clear whether Teibloom’s content was actually infringing, or whether a de minimis or fair use defense might apply.  For example, if an average song is 3 minutes (180 seconds) long, then a full six-second clip appearing in a Vine video would be roughly 3.3% of the entirety.  But the analysis could be further complicated by other issues, including whether the Vine includes just the music (playing in the background, for example), or also includes a performance or other visual element, as at least one of Teibloom’s Vines did.  Mike Masnick at Techdirt, who has posted a YouTube video of one of the Vines, resolutely concludes that, at a minimum, the fair use defense applies. It’s unclear whether Teibloom plans to dispute NPG Records’ takedown notice, but a recent tweet suggests that in view of other concerns, including the 'no camera' policy in the building where he took the video of Prince, he will keep the content offline. Lenz v. Universal - a YouTube Takedown Notice NPG Record’s DMCA demand strikes a familiar chord.  In February 2007, Universal Music sent a takedown notice to a YouTube user who posted a twenty-nine second clip of her children dancing to Prince's “Let’s Go Crazy,” which was playing in the background.  The user argued that it was fair use and sued Universal with pro bono assistance from the Electronic Frontier Foundation.  That case may soon head to trial in the Northern District of California. The Take Home The DMCA notice from NPG Records emphasizes the challenging and ever-evolving intersection of social media and copyright.  With every new method of creating and sharing content comes not only the potential for copyright infringement, but also the potential for copyright owners to stifle the type of intellectual creativity that copyright laws are designed to protect.  Content creators, including Vine users, should aim for the proper balance of creativity and respect for copyright protection.

The Trademark Clearinghouse ("TMCH") officially launches today, March 26th.  The TMCH was created to help trademark holders prevent trademark infringement or misuse in the face of new top-level domains (TLDs) that are expected to launch over the next few years.  There are nearly 2,000 applications for these new TLDs, and include domains such as ".inc" .home" and ".kitchen" among many others.  There is valid concern among trademark owners that registration of domains like the following will confuse consumers about the source of the domain and its content: It would be prohibitively expensive, however, for a trademark owner to have to register their marks in every one of those 2,000 domains in order to block squatters or prevent trademark infringement. Thus, the TMCH was created to protect trademarks in two ways:

1. Sunrise Service - at least 30 days before a domain name is offered to the general public, trademark holders who have registered with the TMCH will be able to register their domain name in the TLD.  In other words, TMCH registrants will be able to purchase before the general public can; and
2. Claims Services - when a potential domain name registrant attempts to register a domain name that matches a trademark term in the TMCH, he or she will receive  a warning notice.  If the domain name is ultimately registered, the trademark holder with the corresponding mark will receive notification of the domain name registration, allowing them to take appropriate action.

Registration costs are $150 per mark per year, with minor discounts available for 3 or 5 year registrations. Eligible marks include:

• Nationally or regionally registered word marks from all jurisdictions;
• Word marks that have been validated through a court of law or other judicial proceeding;
• Word marks protected by a statute or treaty in effect at the time the mark is submitted to the Clearinghouse for inclusion; and
• Other marks that constitute intellectual property may be recorded in the Clearinghouse by arrangement with a registry.

Image: By Rock1997 (Own work) [GFDL or CC-BY-SA-3.0-2.5-2.0-1.0], via Wikimedia Commons

 

Today, websites, companies, and individuals around the country are participating in the largest online protest in history as they battle two proposed bills currently pending before Congress, the Stop Online Piracy Act (SOPA) and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PROTECT IP Act or PIPA). Google, for example, has a black censorship box splashed over their logo today (pictured to the left), and Wikipedia has gone dark while providing information about how to contact you local representatives (if you just can’t live without Wikipedia today, the site is still available on mobile devices and smart phones, or by disabling JavaScript in your browser).  A full list of the many popular websites protesting SOPA and PIPA today is here. We’ve written before about SOPA and PIPA, and about how they’ve come under fire by mainstream media and civil liberties groups who believe the bills would shift too much responsibility onto ISPs, advertisers, and payment processors while also giving the U.S. government and trademark and copyright holders too much power to block allegedly infringing websites without sufficient due process. Despite the powerful opposition to the bills, both are still alive as of today, January 18, 2012.  Indeed, the Senate is set to vote on PIPA next week, and the House will resume their work on SOPA next month.  See here for more information about the bills, the background, and the next steps. The bills have strong supporters as well.  Chris Dodd, the chairman and CEO of the Motion Picture Association of America (MPAA), is one of these strong supporters and has stated that today’s online protest is “yet another gimmick, albeit a dangerous one, designed to punish elected and administration officials who are working diligently to protect American jobs from foreign criminals.”  See here for Dodd’s full statement. Whether today's online protest serves to raise awareness and alter the language or course of these bills, or merely serves as a "gimmick" remains to be seen, although it is clear that thousands or perhaps millions of people who have never heard of either SOPA or PIPA will discover at least some of the many issues surrounding the bills as they go about their day today.

Two related bills aimed at curbing rampant copyright and trademark infringement on the Internet are currently pending before the House and Senate.  While the bills have been endorsed by the RIAA and MPAA and have strong bipartisan support in Congress, they have come under fire by mainstream media and civil liberties groups who believe the bills would shift too much responsibility onto ISPs, advertisers, and payment processors while also giving the U.S. government and trademark and copyright holders too much power to block allegedly infringing websites without sufficient due process. The Senate PROTECT IP Act of 2011 (S.968) The bills began in the Senate, where Senator Patrick Leahy (D-VT) introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act,” or the PROTECT IP Act (“PIPA”) in May of 2011 (S.968). The PROTECT IP Act would establish a system where the Justice Department could take down websites dedicated to copyright-infringing or counterfeit activities, including sites that solely promote distribution of illegal copies, counterfeit goods, or anti-DRM technology.  The Act would give the DoJ the ability to obtain court orders preventing financial transaction providers, Internet advertising services, Internet service providers, and information location tools from linking to or processing financial transactions to or from the “rogue site.” Trademark and copyright holders would also be able to apply for a court injunction against the domain name to compel financial transaction providers and Internet advertising services to stop processing transactions to and placing ads on the website, if they have been harmed by the activities of the rogue website. The PROTECT IP Act was recently reviewed by the Senate Judiciary Committee and is still pending in the Senate. The House E-PARASITE Act (H.R.3261) The “Enforcing and Protecting American Rights Against Sites Intent on Theft and Exploitation,” or E-PARASITE Act, was introduced on October 26, 2011 by Rep. Lamar Smith (R-TX) (the bill was formerly known as the Stop Online Piracy Act, or SOPA) (H.R.3261). The E-PARASITE Act would authorize the DoJ to initiate federal court procedures against criminal activities conducted on foreign infringing sites engaging in copyright infringement, counterfeit goods, or theft of trade secrets.  Again, courts could issue orders to ISPs, payment network providers, search engines, and advertising services to take “technically feasible and reasonable measures” to prevent access to the rogue site. Similar to the PROTECT IP Act, trademark and copyright holders would use a process similar to the Digital Millennium Copyright Act (DMCA) to seek limited injunctive relief against the rogue site. The E-PARASITE Act was recently sent to the House Committee on the Judiciary where it was referred to the Subcommittee on Intellectual Property, Competition and the Internet. Proponents and Critics Proponents of the bills, including the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), maintain that the legislation is vital in order to address the widespread copyright and trademark infringement on the Internet.  See, for example:

• “RIAA chief: Copyright bills won't kill the Internet” at CNET;
• “The PROTECT IP Act : What You Need to Know” (pdf) by Creative America; and
• Fightonlinetheft.com.

There are also numerous critics of the bills who are concerned about the suppression of speech without due process and the effect of the bills on the Internet’s infrastructure, among other issues.  See, for example:

• “Stop Online Piracy Act would stop online innovation” at the SF Chronicle;
• “Coming Clean on SOPA” by the Future of Music Coalition;
• “A bipartisan attempt to regulate the Internet?” at the LA Times; and
• “And Speaking of the Inalienable Right to the Pursuit of Happiness . . .” at The Volokh Conspiracy.

Case:  CollegeSource, Inc. v. AcademyOne, Inc., 09-56528  (9th Cir., Aug. 8, 2011) What allegedly happened:  A Ninth Circuit panel decided that a plaintiff company that allegedly had its online collection of college catalogs copied by the defendant company could sue in its home state of California.  Plaintiff alleged that it spent $10 million dollars collecting the college catalogs and putting them online in the popular Adobe pdf format.  In this case, defendant company left plaintiff’s watermark type identification on the catalogs which defendant appropriated to its own use.  Comment:  While attribution is honorable, it kind of came back to bite the defendant in this case by suggesting that defendant knew, or should have known, that plaintiff was in California, thereby supporting California jurisdiction for the law suit.