Twitch Is Headed For a Copyright Disaster

Twitch may be forced to build its own ContentID–or pick a fight with the music industry.

Thomas Trutschel / Contributor via Getty Images

On Friday, Twitch sent out an email to its users letting them know that the company had received “about 1,000 individual claims from music publishers,” and “they will likely send further notices.” The message was clear: Stop using copyrighted music in your streams, and check your old videos before they get taken down.

This isn’t the first time that Twitch has wrestled with the problem of music on its platform, and it doesn’t look like the issue will resolve any time soon. Eventually, Twitch may only have two options: Either build new tools to help bridge the gap between creators and rights holders, or turn on one of those groups.

Twitch’s most recent email is notable for a number of reasons, and they’re worth going through point by point.

First, there’s the number of claims Twitch says it has received. The email says the company received “about 1,000 individual claims.” This isn’t insignificant, but it’s also not exactly a flood of requests. For comparison, back in 2016, Google said it received nearly two million copyright takedown requests per day for its search results. Search results and video streams are very different, but it’s noteworthy that such a small number led to a mass email.

This move has a familiar echo in the past, though. In 2012, Twitter made the bold move of publicly disclosing the 4,410 DMCA takedown requests it had received in the last year or so. This was not a neutral move. It was made in partnership with a third-party project called Chilling Effects (now Lumen), run, in part, by the Electronic Frontier Foundation. The intent, as the name suggests, was to highlight the “chilling effect” that rampant takedown notices had on free speech and fair use.

By sending this email not only to the people affected by the 1,000 or so claims, but to everyone, Twitch is making a similar statement. The message goes on to highlight that this many requests likely implies that the music publishers are using automated tools to find infringing content, and will probably continue to do so. Twitch, it seems, isn’t too happy about this approach, and neither are its users.

Do I think I have a reasonable case? Sure. Do I have the lawyers to back it up? No.

Unfortunately, the state of copyright law in the U.S. (and many other countries) is such that if a video game legally licensed music, and then a streamer plays that game on Twitch, the streamer can receive a takedown from the music publisher. This has led to some developers offering a special “streamer mode” that disables copyrighted music, for those who plan to stream.

For its part, Twitch seems to want to work with music publishers–who haven’t earned the best reputation for playing nicely with copyright infringers in recent decades. Perhaps the music industry will be willing to work with Twitch on a mutually beneficial solution, but after several months of takedowns and legal disputes, the fight is looking messy.

There’s a possible model for how Twitch could resolve the crisis, but it’s not one that’s popular with creators.

Twitch could build its own ContentID.

ContentID is the name of the oft-maligned system that YouTube uses to identify infringing works on its platform. If YouTube’s sophisticated scanning system detects content that’s owned by another rights holder, it can provide the rights holder with some options: They can remove the content entirely, block it from certain countries, or let the content stay up, but claim any of the revenue it receives. Creators can even appeal the claims, though they risk more severe penalties if they lose the appeals process.

This system is nowhere near perfect. In fact, the EFF has argued that ContentID discourages fair use by replacing the legal copyright system with an effective system that’s far more stringent. ContentID, for example, doesn’t question whether the ten-second clip you used was for a critical review (which is generally permissible under fair use), it just flags that it’s there, and lets the rights holder decide if they want to take your money. If you don’t like that, you can try to appeal, but if the appeals process decides you’re in the wrong, you get a dreaded copyright strike.

For creators under this system, it’s often easier to just let rights holders do what they want, rather than fight it. For example, I produced a 35-minute critical review of the film Joker, which I personally believe almost certainly falls under the category of fair use for criticism and commentary. But Warner Bros. Films has claimed the video due to the fact that I used short segments of the film. Do I think I have a reasonable case? Sure. Do I have the lawyers to back it up? No. Am I willing to risk a copyright strike on a channel I’m just starting to build? Absolutely not. So, Warner can go ahead and make money off my critical video. I won’t fight back.

A similar system would no doubt be a source of controversy for Twitch users, but the company might not have much choice going forward. Music publishers have increasingly made it clear that they won’t tolerate streamers using their music in any capacity without a license. Even in situations where streamers might not even be aware they have to watch out for legal problems (like a game’s built-in soundtrack.)

However, music isn’t the only area where Twitch could someday face legal issues. Last year, Alex Hutchinson, a creative director at a Montreal Studio owned by Google’s Stadia, caught flak for suggesting that streamers were also on the hook for a license to the games they play. Since they didn’t own broadcast rights for the games they play, the argument goes, they should be paying game publishers for their streams.

This…didn’t go over well. But, unfortunately, the way the current legal system is set up, Hutchinson had half a point. Fortunately, so far, the games industry hasn’t listened to him. Some games, like Minecraft for example, explicitly allow for streaming in their license agreements. Other publishers simply turn a blind eye to game streaming, because getting highlighted by popular streamers often leads to more sales, while suing streamers is a fast track to a PR disaster.

But the fact that the games industry hasn’t generally gone after Twitch as hard as the music industry has, doesn’t mean it can’t. Nintendo, for example, has often held a hard-line stance on game streaming, compared to its competitors. Atlus not only “asked” players not to upload videos or stream past certain points of the game to avoid spoilers, but it blocked many forms of screenshots or recordings. Publishers banning or blocking streams of their games aren’t necessarily the norm, but they’re not uncommon either.

For now, Twitch is primarily squaring off against the music industry, but game streaming inherently comes with a host of copyright complications that Twitch will have to accommodate eventually. A system that automatically flags infringing content–and brokers deals between rights holders and the infringers–may be inevitable. Few companies have the scale to match YouTube on this front, but Twitch, being owned by Amazon, might be one of the few that can.

The only other alternative–barring convincing every user to never upload copyrighted content which…–is for Twitch to start taking sides.

And when the battle is between the recording industry’s overfunded legal team, and people partying in hot tubs, it’s not hard to figure out which side would win that fight.

Eric Ravenscraft is a freelance writer from Atlanta covering tech, media, and geek culture for Medium, The New York Times, and more.

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