Copyright Strikes on Twitch May Risk Breaching the Platform’s Safe-Harbor Status
Back in June, many content creators (“streamers”) on the popular livestreaming website Twitch.tv received Digital Millennium Copyright Act (“DMCA”) claims on their old video clips that contained music owned by Warner Music Group.1 The suddenness of these claims left many streamers scratching their heads, as this was their first time experiencing such issues. Many others worried how many more strikes would follow and scrambled to delete their clips that contained copyrighted music.2
These strikes were particularly noteworthy for two reasons. First, streamers on Twitch operate under a three-strike system.3 If a streamer receives three copyright strikes, their account is permanently banned from the platform. Which, for many, would spell the end of their primary means of income. Second, many of these copyright claims were imposed on clips that were created as long ago as 2017.4 There were potentially dozens, if not hundreds, of clips per streamer over the past two years that featured these songs with virtually no way of retroactively self-policing.5 Fortunately for many streamers, this initial wave marked the extent of the copyright claims, at least for the time being. Although streamers escaped liability this time, the events of June have led many streamers to both speak out against the DMCA and alter the content of their streams to avoid future claims.6
What is the Digital Millennium Copyright Act?
The Digital Millennium Copyright Act is a holdover from the 1990s, when legislators scrambled to protect copyright owners online.7 The DMCA extended copyright law to the internet age. Notably, the DMCA built in a “safe-harbor” provision which shielded websites that hosted user-generated, otherwise copyright infringing, content from liability. 8 This provision would serve as the saving grace of emerging content platforms, such as YouTube, Twitch, Reddit, and others, to grow irrespective of its users’ violations, so long as it complied with takedown requests from copyright owners. 9 But it was not until about the 2010s when media giants, like Capitol Records and Warner Music Group, began to realize the extent to which they were hemorrhaging profits online. 10
In June 2016, the United States Court of Appeals for the Second Circuit heard arguments in Capitol Records, LLC v. Vimeo, LLC.11 In a surprising decision, the Second Circuit held that Capitol’s complaint, that Vimeo exhibited willful blindness towards its users’ violations of the DMCA, was baseless.12 Although the court noted that platforms, like Vimeo, need not undertake self-policing to the degree advocated by Capitol, it did acknowledge that encouraging violations, in order to grow the platform’s popularity, was problematic.13 The court ultimately found that claim unsubstantiated. 14 Although Capitol did not succeed in 2016, the door was left open for future claims against these content platforms.
How does Vimeo v. Capitol Records impact Twitch?
Since its inception in 2011, Twitch has been the leader in livestreaming: it attracts the best talent and garners the most views.15 In Q3 of 2019, for example, Twitch dwarfed the combined efforts of YouTube, Facebook, and Mixer (Microsoft’s now-defunct streaming platform) by accounting for 75.6% of the total viewing hours of streams.16 A large part of this success is due to their viewer retention, longevity in the streaming space, and talent support. Unlike Vimeo, who permits their content creators to operate independently, Twitch contracts with its streamers to ensure streaming exclusivity, determine subscription cost splitting, and formalize their business relationship.17 Although the contents of these contracts are largely kept secretive, it follows that Twitch would avoid assuming any liability generated by the streamer, DMCA-related or otherwise.
To the extent that such a waiver is valid, it calls into question the effectiveness of the DMCA’s safe-harbor provision. For much of the provision’s lifespan, platforms such as Twitch and YouTube have been more like Reddit—uninvested in the individual success of any of its creators and unaware of its endless content. But with the inception of Twitch’s partnership contracts, close relationships between streamers and employees, and the ever-rising tide of competition in the streaming marketplace, it seems possible that Twitch faces liability for just the reason Vimeo avoided it in 2016. Not only is Twitch invested in the growth of its streamers, it also knows that inhibiting copyrighted music is bad for business. Many streamers play music to supplement their gaming content, discussions with communities, or to create a fun atmosphere for its viewers.18 As partnered Twitch streamers continue to play copyrighted music to their daily audiences of 50 to 50,000 unique viewers, it becomes increasingly difficult for Twitch to look the other way. Although Twitch does not need to self-police, as Vimeo clarified,19 the extent to which this music exists in an unregulated capacity on Twitch may end up costing it greatly.
Therefore, while Twitch may continue to escape liability under the DMCA’s safe-harbor provision, it remains unclear for how long it will be able to maintain this innocence. As record labels and copyright owners continue to lose money during the Covid-19 pandemic and as millennials increasingly flock to livestreaming platforms to consume media, the June wave of DMCA claims may be just the tip of the iceberg.
Bijan Stephen, Twitch streamers are getting blindsided by years-old copyright notices, The Verge (June 8, 2020, 3:45 PM), https://www.theverge.com/21284287/twitch-dmca-copyright-takedowns-clips-controversy-broken-system [https://perma.cc/K6NA-K54K].↩
Aaron Alford, DMCA explained: What are DMCA claims and how do you avoid them?, Dot Esports (June 16, 2020, 4:29 PM), https://dotesports.com/streaming/news/dmca-explained-what-are-claims-and-how-do-you-avoid-them [https://perma.cc/6HY4-CV2P].↩
Matthew Barblan & Kevin Madigan, Three Years Later, DMCA Still Just as Broken, Ctr for the Protection of Intell. Prop. (June 30, 2016), https://cpip.gmu.edu/2016/06/30/three-years-later-dmca-still-just-as-broken [https://perma.cc/6H6U-TTKA].↩
826 F.3d 78 (2d Cir. 2016).↩
Id. at 99.↩
Imad Khan, Why Twitch is Still the King of Live Game Streaming, N.Y. Times (Dec. 15, 2019), https://www.nytimes.com/2019/12/15/business/tech-video-game-streaming-twitch.html [https://perma.cc/WBQ7-ZTP5].↩
Adam Yosilewitz, State of the Stream Q3 2019: Just Chatting Keeps on Growing, Mixer Makes It Move, and Asmongold Continues His Reign, Medium (Oct. 14, 2019), https://blog.streamelements.com/state-of-the-stream-q3-2019-just-chatting-keeps-on-growing-mixer-makes-it-move-and-asmongold-60431f8ed4fc [https://perma.cc/AY9P-B5U9].↩
Gene Park, Twitch signs three major streamers to exclusive contracts, The Washington Post (Dec. 10, 2019, 1:02 PM), https://www.washingtonpost.com/video-games/2019/12/10/twitch-signs-three-major-streamers-exclusive-contracts [https://perma.cc/PXQ6-GJW5].↩
See Alford, supra note 5.↩
Vimeo, 826 F.3d at 99.↩