December 6, 2020 / 10:06 pm

Speculative Saturdays: Twitch is Getting Bodyslammed by DMCA Takedown Notices. They Should Have Seen It Coming

Written by Duncan Holzhall

Warning: Legal jargon and acronyms lie ahead. Proceed with caution.

 

Many of us are familiar with the tropes of cowboy and Western films. One such trope is the small-town saloon, where the rabble-rousers go to drink and gamble. A grizzled cowboy sits at the bar, nursing a whiskey amidst the noise. Everyone knows who he is and knows better than to bother him: he is the man in charge, but he’s also a man on the run. Suddenly, the swinging doors burst open, and in struts an imposing figure. His spurs  clank with each plodding step, and he points to the cowboy. He’s a bounty hunter, and he’s come to capture his quarry. The cowboy now has two choices: face down the bounty hunter or comply with his demands. Anyway, the cowboy is Twitch, and the bounty hunter is the DMCA.

 

What is Twitch?

 

If you are unfamiliar with Twitch, it is a prominent live-streaming platform with over 7 million streamers and 40 million users. The content on the platform is as varied as the creators, ranging from popular offerings such as e-sports and video games to more niche categories in the realm of live podcasting. Music-oriented creators are popular on the platform as well, whether giving live performances or criticizing new releases. The ephemeral nature of livestreaming, combined with the niche market for the platform, has allowed the platform to outpace legislation around intellectual property use. But as the platform grows, and as streams are archived, rights administrators are taking notice of the platform.

 

What is the DMCA?

 

Unfortunately, the DMCA is not nearly as simple to understand. The Digital Millennium Copyright Act is a piece of legislation passed in 1998, and it criminalized the production and distribution of services or products that circumvent controlled access to copyrighted material (or, in plain English, Internet privacy). One of the primary protections in the law is an exemption from liability of Online and Internet Service Providers for criminal copyright activities of their users. For example, in the infamous case of Napster and other peer-to-peer file sharing services, the DMCA ensured that America On Line (AOL) wouldn’t be held liable for the criminal activities of Sean Parker and Napster. The aim of the DMCA has been to ensure that rights holders are fairly compensated for the use of their materials, helping some creators while hurting others.

 

CONFUSION ALERT AHEAD!

 

One of the most infamous enforcement methods of the DMCA is the issuance of a takedown notice. When a copyright holder believes that someone is using their content without permission, a takedown notice is issued. This notice is in line with the purpose of the law, as the use of copyrighted material (ex: a song) without owning the rights (ex: either owning the rights to song/master or being covered by a licensing agreement) would be seen as circumventing access to the rights (ex: using a song without paying for it). Before May, Twitch received fewer than 50 music-related DMCA notices. However, in the past month, they have been flooded with thousands of notices on archived streams on the platform.

 

Where is Twitch messing up?

 

As it stands right now, Twitch does not have a master use license with major record labels. Twitch does hold a public performance license, which protects streamers who perform live concerts on the platform. Thus, if a guitar player plays a cover of “Hey Bulldog” by The Beatles, they won’t receive a takedown notice because the performance of a cover is protected by a public performance license. However, the guitar player could NOT play a recording of “Hey Bulldog” on stream because, in addition to the music and lyrics being copyrighted, the sound recording (AKA a master) has separate copyright protections. Twitch does not have a master use license, so streamers cannot play recordings on the platform.

 

But what if the streamer uses Spotify Premium or a similar subscription? Don’t they pay for the rights to access that music?

 

It is true that the streamer pays for unrestricted access to music via popular streaming services. However, this subscription only allows the user to have access. By playing music over livestream, the streamer is “distributing” the music to users that do not pay for it. Under the law, this counts as a circumvention of access.

 

Who does this affect?

 

The recent string of takedowns primarily affects music-oriented streamers. Very few of the takedown notices have been in response to the use of video game music on streams, because a vast majority of video game scores are created as “works-for-hire.” As such, the composer forfeits their claim to copyright benefits (such as royalty payments) in exchange for a larger salary. Since Twitch has licensing agreements with the creators/rights holders of these games, the music comes as a package deal. As previously mentioned, musicians who perform originals and covers will not be affected severely, unless they play covers of songs by publishers who do not have a performance license with Twitch. Primarily, these DMCA takedowns will affect streamers who play copyrighted music outside of the context of their primary niche (ex: Fortnite players who listen to Spotify). Additionally, this could cause a sharp decline in music-video-game streams. Guitar Hero is a game that is structured on master recordings, masters that Twitch does not have a license to protect. Finally, a majority of DMCA takedowns have targeted archived streams on the platform. Because these can be considered “replayable material,” archived streams are enforced in the same way as a YouTube video, for example.

 

Could Twitch have predicted this?

 

Unquestionably. The DMCA has been in effect since the late 1990s, and Twitch was founded in 2011. The Internet is nothing new, and the ramifications of the DMCA on the Internet were made clear by the beginning of the 2010s. After a highly publicized battle with YouTube on the matter, the DMCA had cemented its authority over copyrighted material on the Internet. The founders of Twitch would have been well-aware of the legal battle, and they had to have considered the broad variety of creators that could use their platform. Twitch should have seen this coming.

 

What’s next for Twitch?

 

Tying back to the cowboy example, Twitch can face down the bounty hunter or comply with their demands. They have instructed streamers to stop using copyrighted material in their streams due to the surge in DMCA takedowns. The service has announced that they are in talks with major record labels to brainstorm potential solutions to the problem. Whether this results in a blanket master use license or a specialized deal, the direct deal with rights holders is the most straightforward approach. However, Twitch has noted that since many streamers are not music-oriented, they may not even pursue this idea at all. The other, more difficult option would be to craft a legal challenge to work around the DMCA. This likely won’t work, given that the DMCA is structured to prevent workarounds. In this realm, the DMCA is quicker on the trigger.