Twitch Should Wake Up and Hear the Music

Video games and gaming have steadily grown in popularity. Global gaming sales are expected to reach nearly $180 billion, making it a ridiculously lucrative industry. Esports have also come to the fore, growing as a sector in its own right. Colleges have even started adding esports teams to compete in gaming tournaments, sometimes broadcasted on ESPN. Streaming video games has likewise grown in popularity, going beyond the videos that have for long been posted to YouTube. Streamers on the Amazon owned platform, Twitch, can in many instances make a lot of money from the content they create. NICKMERCS, a popular streamer who plays first person shooters, currently has the most subscriptions on Twitch at around 57,000. While Twitch is free to watch, the platform makes revenue from advertisements and subscriptions. People who watch a streamer without subscribing periodically must watch advertisements. You can subscribe for as little as five dollars a month, giving you access to the stream sans ads, and personalized emotes to use in chat, created specifically for the streamer. Since being acquired by Amazon, Twitch has also added another subscription option whereby people holding Amazon Prime subscriptions get one free Twitch Prime subscription to be used on the streamer of their choice. Twitch streamers are paid half of all subscriptions. This means that NICKMERCS would earn nearly $30,000 a month from subscriptions alone. He also generates money from ad revenue. As I am typing this, he currently has 66,000 people watching his stream, which means he is generating a lot of money for himself and Twitch. Although he certainly is not the norm, video game streaming platforms, specifically Twitch, have allowed people to make careers out of gaming.

The gaming industry faces many intellectual property issues, many of which have been resolved through litigation. Whether it is image licensing rights, or trademark fair use with the depiction of real-life trademarks in video games, gaming continues to provide cutting edge legal questions, one of which we shall discuss below. The growth of esports has raised labor questions. As far as professional sports are concerned, sports governance structures are wary of violating child labor laws. Thus, they impose age limits on players signing professional contracts. This doesn’t pose as much of a problem given the athletes won’t reach their prime until they are in their 20s. For gaming it is different. While many esports players are in their 20s, so many people, especially nowadays, break into gaming at a much younger age. EA Sports FIFA superstar DhTekKs was only 16 when he won his first major gaming tournament. Meanwhile, during the Fortnite World Cup in 2019, the winner was a 16 year old named Kyle “Bugha” Giersdorf. His prize was 3 million dollars. A 13-year-old named Thiago Lapp came in fifth and won 900,000 dollars. Back to FIFA, recently a 14-year-old Danish kid named Anders Vejrgang has risen to prominence on Twitch as he currently has nearly 500 consecutive wins in FIFA Ultimate Team Champions Weekend League. Due to EA policy, he cannot compete professionally until he is 16, which may have negative impacts on his development. However, he consistently has over 25,000 viewers on Twitch, so he is still earning plenty of money.

Twitch, however, has other issues to deal with, in the form of the Digital Millennium Copyright Act (DMCA). For many years gamers and content creators on Twitch played music as a backdrop to the content they were providing. Often, streamers would simply use playlists with which they were familiar to listen to music as they played games. Twitch itself even had a library of acceptable songs to be played. However, starting October 2020 streamers have been receiving takedown notices, based on the DMCA, prompting Twitch to forbid users from playing copyrighted music on their streams. Twitch has enacted a three strikes policy. On the third [DMCA] strike streamers will be banned from the platform. I can only speculate as to why these strikes are now coming with more frequency, but I can say that Twitch has not handled the whole issue very well.

Of course, Twitch would want to limit its liability as much as possible, but this has meant leaving streamers out to dry. Section 512 of the DMCA gives online service providers safe harbors from liability for infringing conduct hosted on their site. In Twitch’s case, when they receive a takedown notice from a copyright holder they are required to remove or block the infringing content. However, the creator of the allegedly infringing content has a right to notice and to rebut, typically by saying it is fair use. Lenz v. Universal Music Corp teaches us that the copyright holder has to consider whether the use is fair. Twitch, however, has acted immediately. Once it received a notice it promptly wiped out a streamer’s recordings of their streams, in many cases dating several years back. This has left streamers without recording of some of their best moments, which forecloses the possibility of them being watched over in the future. My intuition is that music labels have been watching the growth of the platform and are now concerned that they might be losing too much money. I believe in certain cases the use can be shown to be genuinely fair, particularly considering the streamers are creating their own copyrightable works. For instance, my favorite content creator MOONMOON often uses music for comedic effect. While he is performing some funny acts in a game he would play the notorious comedic song ‘Il Barone Rosso’. He can no longer do that. And his videos from the past containing that song or any other has likely been removed from the platform. Twitch is in an undeniably precarious position. They don’t want to be sued for hosting so much infringing content. But to this point, so much damage has been done to content creators. Twitch undoubtedly has great lawyers so their following task should be simple: get wholesale licenses. Licensing music can be tricky but they should have the knowledge and resources to get it done. This would save them the trouble of scrubbing their archives of videos with infringing content, and it would protect the content creators that make the platform so successful.