Copyright or Copy-wrong: Streamers and the Digital Millennium Copyright Act

By Kyle Drinnan

In the age of the internet and new media come many new and innovative ways to broadcast yourself. It can range from forming a blog on a website or even live streaming your content. However, one of the world’s biggest streaming platforms, Twitch, had to adjust quickly when various music companies placed a Digital Millennium Copyright Act (DMCA) takedown notice on the website.

Now, streamers are having to understand their limitations when it comes to the law.

Warren Gordon started streaming last year under the username InTheCardinals. Although he hasn’t streamed for long, he is experiencing the same frustrations as other veteran streamers.

“We don’t know what we can and can’t play,” Gordon says. “There are the obvious songs we can’t play, but I have seen streamers get struck for playing songs they thought they had the rights for.”

Fortnite is one of Twitch’s most streamed games, and the first set of DMCA takedown notices started to affect streamers, during one of the game’s biggest events.

The free-for-all arena shooter is known for its season-ending events where every few months, they have players watch or participate in a special event. At the time, they were doing a Marvel crossover where players would have to face the villain Galactus.

However, people who streamed the event on Twitch would find out they had to delete their Video On Demand (VODs), so that music companies who had their music in the event wouldn’t DMCA strike any of the streamers. A DMCA strike is when the music companies contact Twitch to takedown and punish people using their music.

Ryan Thompson, a professor at Michigan State University, says that the most obvious songs that will be taken down are licensed to game companies by music labels. “These would be songs that are on the home screen of a game or in place to set a sense of realism like the radio in GTA V,” Thompson says.

But there are different types of contracts that game developers have with outside music companies and producers. The most common two are pre-licensed music that the game company doesn’t own but can put into the video game and music they have created, which they hold the right to.

Indie developers don’t have as much money to license or develop their own songs in different ways. One example would be that the artist would get a percentage of the game’s sales when it’s sold.

Some video games have already taken steps to combat the new DMCA issues on Twitch, with the newly-released Cyberpunk 2077 having a streamer mode that would not use any copyrighted music in the game. One of Twitch’s biggest games, League of Legends, has started to create a catalogue of songs that streamers can use. Even before the Twitch issue, Riot Games created a half K-Pop, half American, all-girls band called KDA. Some music companies have even seen an opportunity like Monstercat, which is selling a monthly license for streamers to use their music during the streams. Monstercat is an EDM music company that started in 2011. They have been working with social media companies to help promote their songs and content through content creators on the websites.

And although Twitch is a website used by millions of people worldwide, streamers have to uphold the United States copyright laws.

Even streamers like Gordon, who lives in Calgary, are held by another country’s rules because Twitch is a platform that is hosted and operates in the U.S.

Adam Weissengruber says that Canadian policies and laws surrounding copyright don’t usually come into play for big websites because almost all of them are hosted in the U.S. “Canadian copyright laws are different. If someone had a complaint, they would submit the complaint to the person that has potentially violated the law,” Weissengruber says. “In the United States, they would go to the host of the person, which would be DMCA strikes.”

But the U.S. is a little behind in updating its copyright laws. While the EU and Canada have updated their laws in the last ten years, the U.S. hasn’t updated since 1994. No mainstream social media platform, where most DMCA takedowns happen, was created at this point. Not even Google was around, and that started in 1998.

“Music companies don’t want to take this to the courts with the chances of it changing,” Thompson says. “What they gain in the current set of laws could be changed, and they want all the positives to protect their assets.” Thompson explains that the laws aren’t likely to change in a while. Many American politicians are much older than the tech-savvy younger generation and aren’t focused on laws that they don’t understand.

But what frustrates streamers like Gordon is the lack of help from Twitch. “It feels like they told us [about the copyright laws] and let us have to figure the situation out,” Gordon says. “The community had to fend for itself and help each other instead of Twitch taking the needed steps to help.”

However, Gordon’s frustration and Twitch’s lack of a response can also be a common practice allowed by U.S. law. “A major talking point from people who are frustrated by the current copyright laws feel they are outdated,” Weissengruber says. “If Twitch is making money from your stream, but you get DMCA claimed by a company, Twitch can just remove you and still keep the money they earned from the content.”

Twitch has since released a letter to its community to apologize for their inaction and explain the situation from their end.

“Until May of this year, streamers received fewer than 50 music-related DMCA notifications each year on Twitch. Beginning in May, however, representatives for the major record labels started sending thousands of DMCA notifications each week that targeted creators’ archives, mostly for snippets of tracks in years-old Clips,” Twitch said in a statement.

Now the smoke has blown over on Twitch, Gordon is going to continue streaming on Twitch. “At the end of the day, I do this (streaming) because it’s a fun hobby. I don’t have enough to support me full time, but I have learned and gained so much from doing this,” Gordon says.

Thompson has his own wishes for the game developers. “I hope that game developers will add when discussing their contracts that people can restream the music that is put in the game,” Thompson says.

Although it has now died down, the situation will change the video game business and new media for years to come.