Platforms such as Twitch are putting the onus on creators to comply with the DMCA without providing them with the proper tools, and those platforms are failing to find effective solutions to the bigger problem of copyright infringement; one such solution would be to negotiate a deal with the music labels to license music so that creators have legal access to copyrighted music without fearing receiving the dreaded DMCA notice.
First, Some Background: What is the DMCA and how do DMCA takedown notices work?
Simply put, the DMCA is a federal law that provides protection for online platforms such as Facebook, YouTube, and Twitch against copyright infringement liability based on content uploaded to their platforms. This means that user-generated content (UGC) sites such as YouTube and Twitch can freely operate without the threat of litigation due to infringing content being uploaded to their websites.
In order to be eligible for this protection, the platform(s) must adhere to certain rules, including investigating and taking action against allegedly infringing materials once they receive notice of the infringement from the rights holder. This is where the DMCA notices come in.
Here’s a common scenario: a Twitch user plays a third-party copyrighted song in the background while they stream. The copyright holder of the song finds out and sends Twitch a DMCA takedown notification. Generally, without warning to the (allegedly) infringing Twitch user, once the complaint has been verified, Twitch will remove the allegedly infringing content and issue a DMCA notice to the (allegedly) infringing Twitch user.
There are a few ways to get content reinstated or a copyright strike removed, but each presents its own challenges and is not a guaranteed fix. For example, a Twitch user can obtain a license from the copyright holder, but this is a complicated process as a license is a legal document. Alternatively, a user can send Twitch a “counter-notification” to dispute a particular DMCA takedown request. If a counter-notification follows the Twitch Guidelines and is processed, Twitch may remove any copyright strike(s) associated with the notification, but it’s important to note that Twitch specifically states on its website that “it is not a copyright court and isn’t in a position to approve or deny counter-notifications based on who’s right and who’s wrong between you and the rights holder”.
Instead, Twitch reviews whether counter-notifications meet the requirements of their DMCA Guidelines (can be found here: DMCA Guidelines) and then processes them if they do. In that case, the content at issue will likely be reinstated. However, this may not prevent the reporting party from trying other means to have the content removed. And more importantly, a creator’s content has been removed for some time which is a terrible outcome for them.
Why are so many Twitch users receiving DMCA notices now?
Twitch users have recently been bombarded with thousands of DMCA notices. Why so many? One of Twitch’s biggest issues is the fight they’ve picked with the music industry due to creators using third-party music in their streams (many creators play background music when they stream which has become a huge issue). In my opinion, creators have been unfairly impacted by Twitch’s poor handling of the increase in DMCA notices. For example, when Twitch was notified that an enormous batch of DMCA notices was coming from record labels in the summer of 2020, Twitch gave its users only three days’ notice to review their content libraries and remove any potentially infringing content.
At the time (and even now), Twitch did not offer sophisticated content management tools which would have allowed users to identify copyrighted materials in their content or remove or make private entire sets of videos rather than only one video at a time, 20 in a batch at a time, or in some cases, entire libraries. Additionally, once the notices were sent, there was insufficient information about the allegations to allow the users to assess their options. There have been some changes on the part of Twitch since, but I still don’t think it’s enough.
Although Twitch offers “Soundtrack by Twitch”, a library of music Twitch users can freely use and include in their live streams, the license to such music only extends to live streams, and not archived clips (or VODs). A bigger issue is that Twitch does not currently have any licenses with any major music labels such as Sony, Universal, etc.
Being more proactive
Twitch needs to take a more offensive, proactive approach and enter into robust blanket license agreements with the major record labels as Facebook did last year. These licenses would take the risk away from Twitch users by permitting them to include music from major record labels (including current hits) in their live streams and VODs. At a minimum, it seems an obvious solution for Amazon-owned Twitch to pair with Amazon’s Music Unlimited.
Since I am not privy to any discussions Twitch is having with music labels or streamers I have no idea why this hasn’t happened, but it seems like an obvious solution. The bottom line is that platforms like Twitch make millions of dollars off the backs of creators. The least they can do is provide effective means for their creators to use copyrighted content. Until they do, the DMCA mess will only get worse and that could mean creators jumping to alternative platforms that offer protections.
