By: Marcus McGinnis
In this blog post, I will explain how Twitch found itself in its current DMCA predicament, why its current proposed solution of mass backlog deletion is unsustainable, and why the platform should follow the approach of rival platforms and proactively utilize its vast resources to negotiate a more equitable, private contract solution with music license holders. Given the disparity in negotiating power between a platform the size of Twitch and individual creators, Twitch is better situated to take on the burdens of negotiating a music licensing solution on behalf of all of the creators who drive traffic to their site.
On November 11, 2020, the Amazon-owned live streaming platform Twitch quietly published a post titled “Music-Related Copyright Claims and Twitch” to the site’s official blog.[i] The rather lengthy update, which takes on an immediately apologetic tone, serves as the platform’s first official communication to content creators for actions taken by Twitch over the previous months that resulted in large swathes of user-generated archived content being deleted for alleged copyright infringement, often based on incidental background use of licensed music.[ii] These events were sudden and came as a shock to the platform’s creators who were given no opportunity to submit counternotifications or edit their content to remove the allegedly infringing material per the provisions of the Digital Millennium Copyright Act (the “DMCA”) and Twitch’s own DMCA Guidelines.[iii] Based on claims by Twitch in the post, the mass deletion served as the only feasible solution to an “unforeseeable” increase in the number of music-related Digital Millennium Copyright Act takedown notifications from third party license holders received by the company over the past year, claiming to have gone from receiving fewer than fifty notifications per year to thousands per week.[iv] The platform woefully pleaded that the exponential uptick in volume and scope of takedown requests necessitated the inelegant mass deletion solution, but in actuality, these events serve as perfect examples of how Digital Millennium Copyright Act’s safe harbors against secondary liability may perversely disincentivize multi-billion-dollar platforms like Twitch from investing tools that enable the very creators the platform relies on to generate revenue to navigate an intellectual property regime that has clearly failed to account for this new form of internet content delivery.[v] Instead, these companies often opt to shift the associated risk of content creation and navigating licensing on to the creators themselves and wait until the last minute to implement more sensible, less destructive solutions that may cost them a bit more than doing nothing.[vi]
For those unfamiliar with the platform, Twitch.tv is an online video streaming platform that allows content creators to broadcast content live while allowing viewers to interact in real time via a text chat.[vii] Originally started as an online hub primarily for live streaming video game gameplay in 2011, the site has seen most of its recent growth attributable to the creators streaming in the “Just Chatting” section: a category that allows content besides just gameplay and facilitates more casual interactions between creators and viewers.[viii] Viewers may demonstrate their support for these content creators in several ways by either: (1) “subscribing” to a creator’s channel for a fixed monthly cost in exchange for creator specific channel perks, (2) purchasing a site-specific currency to amplify their participation in chat, or through direct monetary donations that often allow viewers to share media from other parts of the internet for the streamer to react to live.[ix] Twitch can prove to be a lucrative venture for fortunate creators who cultivate a loyal audience. For example, Twitch’s top streamer from last year, xQcOW, reportedly earned an estimated total of $1.98 million in 2020 from more than 55,000 subscribers.[x] The sheer size of Twitch’s viewership numbers has solidified the website’s status as the de facto home for live streaming on the web. The numbers back up Twitch’s dominant position: In 2020, likely due to increased entertainment consumption overall resulting from the COVID-19 pandemic, Twitch saw an average daily visitor total of nearly 26.5 million users who collectively watched almost 1 trillion minutes of content on the platform.[xi]
However, not all of this interaction or time spent watching content is attributable to live broadcasts alone. Twitch accommodates asynchronous viewing of content by hosting a creator’s past broadcasts as videos on demand (or “VODs”) that may be watched any time after the conclusion of said broadcast.[xii] As viewers may not always be able to catch their favorite streamer live due to life circumstances and timing conflicts, VODs serve as an important means for streamers to cultivate an audience beyond the temporal parameters of the live broadcast.
VODs play a key role in Twitch’s legal woes. Because Twitch hosts this third party-created video content, like other similar online service providers (or “OSPs”), it is subject to the provisions of the Digital Millennium Copyright Act. The Digital Millennium Copyright Act (the “DMCA”) is a 1998 amendment to U.S. copyright law that attempts to harmonize existing intellectual property protections with the at-the-time new technological frontier that was the internet.[xiii] Title II of the DMCA, separately titled the “On-Line Copyright Infringement Liability Limitation Act,” added section 512 to title 17 of the U.S. Code.[xiv] Section 512 enables copyright holders to protect their legitimate interests without the need to pursue litigation by requiring OSPs to remove infringing online content via a notice-and-takedown system.[xv] OSPs who comply with the requirements of this provision are shielded against secondary monetary liability resulting from the infringing actions of their users as long as they cooperate with copyright holders to “expeditiously” remove or disable access to infringing content upon notice.[xvi] Per Twitch’s own DMCA & Copyright FAQs, when they receive a DMCA notification, the allegedly infringing content will be immediately removed and restoration, if applicable, is contingent on the affected user either a filing a counter notification or seeking a retraction of the takedown notice from the purported rightsholder.[xvii] Twitch, having complied with its Section 512 obligations to expeditiously remove the supposedly infringing material, is no longer interested in the outcome of the rights dispute having nullified any risk on their part at the potential expense of the content creator’s VOD.[xviii] Obviously, this is a low-cost solution to a potentially large risk on OSP’s part. However, due to this low OSP compliance barrier, little incentive existed for Twitch to provide more costly, but more nuanced tools that would allow alleged infringers to selectively remove purportedly infringing content and preserve their valuable VODs. A blanket approach can, and does, result in mass false positive identifications that can have a direct effect on a streamer’s ability to make money on the platform.
Twitch’s copyright-related failures appear even more amateurish given the more successful endeavors of its smaller rival streaming platform. Specifically, Facebook Gaming has demonstrated that it is possible to take a proactive approach to music licensing by using your market power to negotiate blanket licenses on behalf of the content creators on your platform.[xix] In September 2020, Facebook Gaming announced that creators on the platform designated as “partners” would be able to access a vast catalogue of music for their livestreams from massive music labels such as Universal Music Group, Warner Music Group, and Sony Music Entertainment.[xx] The license granted includes use on the livestream itself and the subsequently archived VOD version of the livestream, thus completely sidestepping the issues Twitch has created for its users.[xxi] Songs not covered by the blanket licensing agreement push notifications directly to content creators during the live broadcast notifying them that they are not authorized to use the restricted track and granting creator the chance to rectify the situation.[xxii] While partners currently represent a limited subgroup of all the content creators on the Facebook Gaming platform as a whole, they do plan to expand the program and roll out the licensing structure on a broader basis.[xxiii] The program goes to demonstrate that not every OSP has opted for a “wait and see” strategy when it comes to figuring out copyright procedure in the live stream era of the internet. Facebook’s efforts also demonstrate that music label license holders are apparently willing to work with streaming platforms to create private contracts that provide more sensible solutions for all parties.
The precarious position Twitch has put its creators in can be directly traced to the bare minimum efforts platforms are incentivized to take in order to comply with the DMCA and avail themselves of its safe harbor liability provisions. In this scenario, content creators disproportionately bear the costs of avoided litigation and asserting their fair use rights. Divergent interests between content creators and the platform meant that Twitch had relatively little incentive to develop tools oriented towards fairly remedying infringement issues prior to the increased influx of DMCA takedown notifications and the November 11, 2020 blogpost. Twitch’s “wait and see” approach to copyright enforcement worked right up until claims began to aggregate and it was no longer efficient to examine takedown notifications on a claim-by-claim basis. Platforms like Twitch, seeking to retain the benefits of the DMCA safe harbor, seemingly would rather apply a cheaper blanket one-size-fits-all solution than invest additional resources in a more costly solution. Additionally, given the imbalance in requirements between copyright holders issuing takedowns and alleged infringers often means that legitimate instances of fair use do not get challenged, and content creators are left bearing the cost. Thus, until laws like the DMCA are updated to match current times and require more than minimal efforts from OSPs, online service providers like Twitch will continue to take the path of least resistance and creators will likely bear the brunt of the burden.
[i] See, Music-Related Copyright Claims and Twitch, Twitch, https://blog.twitch.tv/en/2020/11/11/music-related-copyright-claims-and-twitch/ (last visited Feb. 6, 2021).
[iii] Digital Millennium Copyright Act Notification Guidelines, Twitch, https://www.twitch.tv/p/en/legal/dmca-guidelines/ (last visited Feb. 6, 2021).
[iv]Music-Related Copyright, supra note i.
[vi] See Katharine Trendacosta, Unfiltered: How YouTube’s Content ID Discourages Fair Use and Dictates What We See Online, Electronic Frontier Foundation (December 10, 2020), https://www.eff.org/wp/unfiltered-how-youtubes-content-id-discourages-fair-use-and-dictates-what-we-see-online (explaining how the Content ID system YouTube developed to handle DMCA complaints disproportionately hurts creators on the platform).
[vii] See Tiffany Hsu, Twitch Users Watch Billions of Hours of Video, but the Site Wants to Go Beyond Fortnite, The N.Y. Times (June 29, 2020), https://www.nytimes.com/2019/09/26/business/media/twitch-twitchcon-ads-redesign.html (explaining the function of Twitch and briefly recounting its history and development).
[viii] Thomas Wilde, Game streaming report: ‘Just Chatting’ category takes over Twitch; Facebook Gaming sees growth, GeekWire (Jan. 9, 2020), https://www.geekwire.com/2020/game-streaming-report-just-chatting-category-takes-twitch-facebook-gaming-sees-growth/.
[ix] Bits and Subscriptions, Twitch, https://www.twitch.tv/creatorcamp/en/get-rewarded/bits-and-subscriptions/
[x] https://www.gq.com.au/entertainment/tech/these-are-the-10-highestearning-twitch-streamers-in-the-world-for-2020/image-gallery/ea556004f6c862070dc261ad2ff17d24?pos=4 (last visited Feb. 6, 2021).
[xi]Damian Burns (@damianburns), Twitter (Jan. 30, 2021, 3.22 AM), https://twitter.com/damianburns/status/1355446285554372608.
[xii] Video on Demand, Twitch, https://help.twitch.tv/s/article/video-on-demand?language=en_US.
[xiii] The Digital Millennium Copyright Act, U.S. Copyright Office, https://www.copyright.gov/dmca/ (last visited Feb. 6, 2021).
[xiv] 17 U.S.C. § 512 (2018).
[xv]The Digital Millennium Copyright Act, supra note viii.
[xvii] Digital Millennium, supra note ii.
[xviii] 17 U.S.C. § 512(c)(3) (2018).
[xix] Bijan Stephen, Facebook Gaming will now allow partnered streamers to play copyrighted music, The Verge (Sept. 14, 2020) https://www.theverge.com/2020/9/14/21436136/facebook-gaming-partnered-streamer-copyright-music-riaa-twitch-youtube (discussing Facebook’s music licensing announcement and comparing it to Twitch’s approach to the problem).
[xx]Leo Olebe, Making Music & Streaming Easier, Facebook Gaming (Sept. 14, 2020) https://www.facebook.com/fbgaminghome/blog/making-music-and-streaming-easier.