In the past few days a huge number of Twitch streamers have reported getting hit with Digital Millennium Copyright Act (DMCA) claims by the Record Industry Association of America (RIAA) for unlicensed use of music on their channels. Twitch has confirmed that they’ve been subject to a “mass” DMCA claim, the first of its kind they have ever received.
While until now many streamers got by using copyrighted music without any issues, it looks like the RIAA has gotten more serious about policing this stuff.
It’s not clear why this is happening now, but I like world’s-most-famous-game-lawyer Ryan Morrison’s theory that this all came about because a bunch of music industry lawyers stuck at home during the quarantine heard copyrighted music on Twitch streams their kids were watching.
Whatever the actual reason behind this new crackdown may be, I thought I would put this post together providing some DMCA basics for anyone interested in the legal issues behind the takedown notices, and what they can do in response.
What is the DMCA?
Legislation passed by the US government 22 years ago governing how copyright works on the internet. The most important thing about it for our purposes is its “safe harbor” provisions.
These provisions basically protect sites that allow users to upload and share content with others, like Twitch, from liability for copyright infringement. Without these provisions, in theory, whenever someone uploaded infringing content to Twitch, the site could get sued directly for copyright infringement in respect to that content.
Given how much copyright infringing material gets uploaded to Twitch on a daily basis, without these provisions it would take approximately 0.24536 seconds for Twitch to get sued into oblivion, so this safe harbor protection is absolutely crucial in order for Twitch (along with about half of the sites on the internet) to continue functioning.
In order to keep this protection, however, sites like Twitch have to comply with the DMCA’s “notice and take down” system, which basically means responding to DMCA notices from rights holders by removing infringing content, and taking action against ‘repeat infringers.’
That’s basically the TL:DR for the the DMCA safe harbor system, and the ultimate reason why, if you’re a streamer, you may have woken up today with a strike on your account for playing a random 50 Cent song on your stream two years ago.
Is this Twitch’s fault?
Not really. As discussed, Twitch has no real choice in the matter. If they get a takedown notice they have to enforce it or lose their safe harbor DMCA protection.
It’s also worth noting here that Twitch has no role in reviewing a DMCA takedown notice and determining whether it’s legitimate or not. If they get a notice they have to enforce it. Any issue regarding whether the notice is valid is between the rights holder and the uploader (more on that later). The only thing Twitch can do when it gets a DMCA notice is take down the content.
Please keep this in mind when talking to Twitch staff (who I would guess are probably as angry as you right about now about having to deal with this). This stuff is mandated by federal law, it’s not some internal Twitch policy they can waive, so they are not lying to you if they tell you there’s nothing they can do.
So if I get a DMCA notice against my channel what can I do?
You can send a DMCA counter-notice to Twitch. A counter-notice basically requires you to declare, under penalty of perjury, that you have a good faith belief that your content was wrongfully removed. If you send this notice, Twitch has to re-instate the content within 10-14 days … unless the rights holder files a lawsuit against you (that’s a pretty big “unless”).
Filing a counter-notice can be dangerous because it basically puts the rights holder in a position where it has to sue you if it wants to get the content taken down again. I suppose it’s possible that the rights holder may not want to deal with the expense or bad PR of suing you, and will essentially let the matter go, but, generally speaking, trying to play a game of legal chicken against a giant multinational corporation with limitless legal resources can be a very bad idea, so please, PLEASE think carefully and get some legal advice before filing a DMCA counter-notice.
What about fair use?
Unfortunately, just like it doesn’t render fan games legal, fair use isn’t going to be of much practical use to anyone in this situation.
First, while there are some potentially helpful decisions are out there, there’s no case law that I’m aware of that unambiguously establishes that use of copyrighted music on a stream constitutes fair use. Also, if someone is making significant revenue from from the stream at issue, I expect making that argument would be an uphill struggle.
Second, fair use is a legal defense that only comes into play after infringement is established. Thus, the only time it would really become an issue is if you’ve already been sued, and since the RIAA is probably not going to take an enlightened and charitable approach to conceding this kind of issue, if you wanted to establish fair use you would probably have to spend years and God knows how much in legal fees proving it in court. At that point, even if you win….well, google “pyrrhic victory.”
What if I have a license for the song from Spotify?
This doesn’t matter. Licenses from Spotify or other streaming music providers are generally only for personal use. They don’t let you use the song for a commercial purpose or play it for the general public, which means you can’t use it on your stream.
Fun fact: you also don’t have a license to use songs on a game’s actual soundtrack for commercial/streaming purposes. That means that if you play a game on stream you could potentially get a DMCA notice because of the game’s own soundtrack. Such is the world we live in.
But I’m not based in the US, does the DMCA affect me?
Yes it does. The DMCA takedown requests are sent to Twitch, not you, and Twitch is subject to US law. Twitch has to take down the allegedly infringing content regardless of where the owner of the account at issue lives, thus living outside the US basically makes no difference for these purposes.
So there’s not much I can do?
Not really, short of writing your congressman.
A lot of people have written about how the system is flawed and overdue for a rework, especially since it was put into place 22 years ago (basically forever in internet years), but until that happens there’s not much way around its requirements. Unfortunately, in the words of Donald Rumsfeld, you work with the DMCA you have, not the DMCA you want. I guess one thing to keep in mind is that, imperfect as it may be, if someone ever started using your content without your consent, you’d want something like the DMCA in place too.
So what if I want to use music on my streams?
There are lost of services out there that offer fully-licensed, legal music specifically aimed at streamers. These services aren’t going to have the same songs you hear on the radio, but often times the music is a decent selection, and a hell of a lot better than nothing. I’m going to plug Vancouver’s own Monstercat here, who offer a plan letting you use most of their library for streaming purposes for the not-unreasonable sum of $5/month.
DISCLAIMER: Nothing in this article creates a solicitor-client relationship between us or should be interpreted as legal advice. Any legal information provided in this article is a statement of general principles only, and the application of the law to a particular situation is something that needs to be considered in light of each individual’s specific circumstances.