This will be the first of two posts in regards to streaming and copyright. The second post will focus on common misconception I’ve seen in Twitch chat and legal alternatives to playing music on stream.
I’m sorry, but this post will start off as a rant before we get to the substantive part. Over the weekend of June 5, 2020 hundreds of DMCA takedown notices were sent out to streamers on Twitch for music copyright infringement. For many of us in the legal community this does not come as a surprise. For years attorneys have warned streamers of potential legal action for using copyrighted content on stream, but it has generally fallen on deaf ears. The events that transpired over the weekend is not a new occurrence. As Twitch grows in popularity, it will follow the path Youtube went down a couple years ago.
Most attorneys I know agree the DMCA is in need of reform to reflect the reality of how the internet works, but regardless of needing change, it is an essential part of regulating online material – and it is still the law that needs to be adhered to. Twitch has many, many, many…problems that need to be addressed, but streamers and viewers complaint to Twitch is unwarranted in this situation. Under 17 USC §512, Twitch has to adhere to takedown notices or else they may be liable for the infringement of their streamers. Also under the same law they must create a system to remove “repeat infringers.” Though the law does not prescribe a specific system, it is now common among social media to use the “three strikes rule” similar to that of Youtube, where three DMCA takedown notices within a certain time period results in a ban.
My main concern out of this copyright apocalypse, besides some of my favorite streamers on the verge of being banned, is that streamers might not take this seriously in a couple weeks. I for one do not want Twitch to become like the authoritarian copyright regime of Youtube, where trolls can destroy careers, copyright blackmail runs rampant and overzealous copyright management companies suppress content creators from making legitimate videos. To prevent this, I urge all streamers to follow copyright laws. However, over the past couple days of watching streams, I realized many streamers, even those with thousands of subscribers and hundreds of thousands of dollars on the line, do not understand the basics of copyright law. For the rest of the post I would like to give a quick overview of copyright law in regards to Twitch streaming. I would also like to highlight that this is general information and any specific questions should be addressed to your personal attorney AND PLEASE FOR THE LOVE OF GOD DO NOT LISTEN TO YOUR CHAT IN LIEU OF AN ATTORNEY.
What is copyright and how does it affect your stream?
Copyright is created when something with a modicum of creativity is “fixed in any tangible medium of expression.” That means a work automatically has some kind of copyright protection once it comes into existence. This includes:
- literary works (books),
- musical works (music composition and lyrics),
- dramatic works (plays),
- pantomime and choreography (dancing),
- pictorial and graphical works,
- audio visual works (movies and tv shows),
- sound recording (singing), and
- architectural works.1https://www.law.cornell.edu/uscode/text/17/102
Video games includes a combination of many of these categories and there is a lengthy discussion in the legal field on which parts fall under what category, but for the average streamer, you can treat video games as huge collections of copyrighted work.
What does it mean to have copyright protection?
Copyright gives the owner a bundle of rights. This includes:
- reproduction,
- derivative work (creating other works from the copyrighted work),
- distribution,
- public performance,
- public display, and
- public performance by transmission.2https://www.law.cornell.edu/uscode/text/17/106
When a streamer put something they do not own on stream it may likely violate one or more of these rights. For example, let’s say you commissioned art for some overlay or alert that uses an interpretation of your favorite video game character. That graphic may violate the right to make derivative works and the right to publicly display the infringing parts of the graphic. To address the current controversy, playing music you do not own on stream may infringe on the right to publicly perform and publicly perform by transmission. For creation of VODs and clips, that adds the infringement of reproduction and derivative works because now there is a copy of the music being played.
As you can see, copyright is not only about copying someone else’s work or showing it on stream. There are many layers to owning a copyright and a misstep by the streamer can land them a DMCA takedown and a strike on Twitch.
So what exactly is a DMCA takedown notice?
The DMCA notice system was created for the benefit of Online Service Providers, here it is Twitch. It allows Twitch to be shielded from liability from what the streamers put on their stream if they follow the system. Unless Twitch has knowledge of infringing content, it is on the copyright owners to find and notify Twitch of any infringement. However, if Twitch gains knowledge that a streamer has infringing content, then it is on Twitch to deal with the infringement.
Once a copyright owner finds infringing content, they can send a notice to Twitch to takedown said content. Remember when I said this law is for the benefit of Twitch? Well, Twitch does not have to verify if the copyright claim is legitimate. As long as the claim meets all the information required by law, Twitch must remove the alleged infringing content. First, the streamer should verify if the notice came from a legitimate source through the provided information. Many times just a glance at the email or copyright holder’s name can make one question the validity of the claim. However, do not dismiss the notice if you do not recognize the copyright holder, many companies use third party copyright enforcement firms to issue their DMCA notices. Secondly, check if the content on the notice is yours and it does in fact contain the stated copyrighted work. Lastly, and this might be the most difficult step for some cases, check if the copyright holder actually owns the copyright to the alleged infringed work.
Twitch has elected to allow for streamers to send a counter-notice as a way to shield them from liability on the streamer-side. After receiving the DMCA notice, the streamer may either comply with the takedown or send a counter-notice to contest the copyright claim. A counter-notice can be made if the streamer finds any defects addressed above or if the content in question falls under any affirmative defenses against copyright infringement. Upon receipt of a counter-notice, Twitch will reinstate the content within 10-14 business days, unless it receives notice that the copyright holder has filed a lawsuit against the streamer. As you can see, sending a counter-notice can invite some heavy legal consequences if done incorrectly. This is why I urge any streamers who intend to file a counter-notice to contact an attorney, before inviting a lawsuit you have no intention to fight.
Two Common Defenses
Fair Use
The Fair Use Doctrine is probably the most misunderstood doctrine on social media. I have written on the issue here in regards to react videos, but the general principles are the same. The most important issue here is if the streamer creates a transformative work, whereby the copyrighted work is included in the new work for criticism, comment, news reporting, teaching, scholarship, or research and the use is no more than necessary for that goal. It is very well within possibility that a streamer’s use of copyrighted works can fall under fair use, but from what I have seen during media share situation or just chatting streams, most streamers do not add enough to transform a work, let alone use what is necessary.
De Minimis Use
De Minimis Use is short for the Latin phrase “de minimis non curat lex,” meaning “the law does not concern itself with trifles.” The implication is basically the copy is so insignificant it does not warrant a lawsuit. This defense is less effective with PC streamers, where they are in a controlled environment with a static set, but an example would be if you have copyrighted content in the background and the aperture blurred it so that people would normally not recognize the copyrighted work. On the other hand, this defense is immensely powerful with IRL streamers. It protects streamers when they walk past copyrighted works or have incidental music on their streams, such as a car playing very loud music passing by. Some questions to consider when looking at De Minimis use: Can an ordinary viewer recognize the work? Was only part of the work shown? How prominent is the copyrighted work shown? Was it shown in the background amongst other things or up front in the foreground? Was it on stream only for a short duration? Generally, the court will attempt to weigh how observable the copyrighted work was in the content, but this is a case-by-case basis and there is no real bright line to say how long or how much a streamer can show.
I hope this information helps everyone understand copyright a little better. As Twitch grows in popularity and size there will be a greater need for streamers to understand the laws that affect their content. Good luck out there and don’t get banned or sued.