Twitch Creators Left in the Dark on New DMCA Crackdown

Content creators are growing frustrated with Twitch, the live streaming platform popular with gamers, as the company has begun to delete content for alleged copyright infringement.¹[1] Matt T.M. Kim, Twitch Admits it Handled DMCA Takedowns Poorly, Says Better Tools Are on the Way, IGN (Nov. 11, 2020, 3:20 PM).

Twitch creators produce a variety of content, but the platform is especially popular with video game players who broadcast their gameplay by sharing their screens with subscribers or fans who can hear and watch them play live. Often times these streams broadcast ambient background music, as well as music embedded in the audio from the games themselves.²[2] Joseph Yaden, What is Twitch?, DIGITALTRENDS, (Oct. 25, 2020, 3:48 PM). Any audio used in these streams, without obtaining a license, is an unauthorized performance that potentially infringes on a copyright.³[3]United States v. Am. Soc’y of Composers, Authors & Publishers, 485 F. Supp. 2d 438, 446 (S.D.N.Y. 2007).

In compliance with the Digital Millennium Copyright Act (“DMCA”)⁴[4]Digital Millennium Copyright Act (DMCA) § 103, 17 U.S.C. § 1201 (1998)., Twitch has a takedown policy of removing allegedly infringing content and subsequently notifying the channel owner that their content was taken down.⁵[5]Digital Millennium Copyright Act Notification Guidelines, TWITCH (Last modified Mar. 3, 2019). Several months ago, Twitch began enforcing their takedown policy more aggressively by deleting creators’ archived videos that contained copyright-protected music, even when it served as subtle background noise and not the stream’s focus.⁶[6]Kim, supra note 1. Twitch claims that at the beginning of this year, major record labels began sending “thousands of DMCA notifications each week,” which they were forced to address by deleting content.⁷[7]Id.

The DMCA, enacted in 1998, was established to generally protect digital service providers from liability from customers or user’s potential infringement.⁸[8]Amanda Reid, Article, Considering Fair Use: DMCA’s Take Down & Repeat Infringer Policies, 24 Comm. L. & Pol’y 101, 119 (2019). These “safe harbor provisions,” which protect platforms like Twitch from liability for a user’s infringement, require providers to (1) “expeditiously respond” to a copyright holder’s takedown notice, and (2) to adopt a policy for terminating access to “repeat infringers.”⁹[9]Id. Until May of this year, takedowns happened infrequently, according to Twitch in a blog post they uploaded addressing the situation.¹⁰[10]Music-Related Copyright Claims and Twitch, TWITCH (Nov. 11, 2020). The DMCA also requires platforms to enforce a repeat-infringer policy.¹¹[11] Reid, supra note 5, at 119. These policies require platforms to ban users who repeatedly commit copyright infringement.¹²[12]Id. Twitch’s current policy does not clarify how many times a user can receive a takedown notice before being permanently banned from the site.¹³[13]Digital Millennium Copyright Act Notification Guidelines, supra note 3.

Creators are angry with the platform for deleting content, as well as providing very little information on why the content was removed, or if there is any recourse to address the allegation(s).¹⁴[14]Kim, supra note 1. Prominent streamers have even been banned from the platform under Twitch’s repeat infringer policy, with no clear path on how to get their channels back.¹⁵[15]Id. The platform has acknowledged a lack of transparency with the recent takedowns and bans, but it did not provide any means for creators to combat the actions.¹⁶[16]Id. Twitch’s advice to creators is, “don’t play recorded music in your stream.”¹⁷[17]Music-Related Copyright Claims and Twitch, supra note 7.

Following this advice quite literally, creators are now streaming with no background music at all and muting game sounds to remain compliant with the policy.¹⁸[18]Kim, supra note 1. Many streamers claim this is problematic and affects the quality of their content.¹⁹[19]Id. This has affected the livelihood of creators whose primary source of income is streaming.²⁰[20]Id. Other streamers have gone back and deleted some, or all, of their old content, to prevent receiving strikes from Twitch.²¹[21]Nathan Grayson,Twitch Apologizes, But DMCA Fiasco Continues With Punishments For In-Game Sounds, Deleted Clips, KOTAKU, (Nov. 11, 2020, 7:00 PM). Streamer, “JasonParadise,” deleted all clips from his account, however, still received a takedown notice for a clip that no longer existed.²²[22]Id. Thousands of streamers have had to permanently delete their content, with the estimated total number of videos and clips deleted in the millions.²³[23]Shwetang Parthsarthy, Pokimane, DrLupo and Other Twitch Partners Upset After Deleting Millions of Clips, ESSENTIALLY SPORTS, (Oct. 25, 2020).

Twitch has promised to introduce an editing tool that can add rights-cleared music to videos, but it is not yet widely available.²⁴[24]Music-Related Copyright Claims and Twitch, supra note 7. The platform has also mentioned trying to negotiate a broad license for music rights with major record labels, so that streamers may have more options for audio in their videos.²⁵[25]Id. For now, streamers will just have to wait for more clarity from Twitch.

Written by: Megan Hallson
Megan Hallson is a 2021 J.D. Candidate at Brooklyn Law School