Over the weekend, many streamers discovered an unpleasant surprise in their inboxes: an email from Twitch saying they’d received one or more copyright strikes on clips from their streams. If streamers receive three strikes, they risk an indefinite ban. The problem? The offending clips were not recent, but streamers hadn’t received any previous indication that there were ticking time bombs in their archives.
After numerous streamers reported late last week and over the weekend that their clips had received the DMCA (Digital Millennium Copyright Act) treatment thanks to copyright claims from an entity claiming to represent the Recording Industry Association of America, Twitch clarified what happened in a post on Twitter.
“This week, we’ve had a sudden influx of DMCA takedown requests for clips with background music from 2017-19,” the company wrote. “This is the first time we have received mass DMCA claims against clips. We understand this has been stressful for affected creators and are working on solutions, including examining how we can give you more control over your clips.”
DMCA claims exist in part to protect big companies and platforms from being held directly liable when individuals break copyright rules. This means, on one hand, that users can post what they want, rather than platforms having to put a blanket ban on all sorts of content that could be illegal, but it also forces companies to remove offending content as soon as its claimed, for fear of legal reprisal, and saddle repeat offenders with sterner consequences.
Twitch has a system in place that automatically (though inconsistently) mutes segments of VODs that include copyrighted music. Clips, though, are a different animal: small, 60-second or less segments of streams that viewers can create by clicking a button in Twitch’s video player. Even when a VOD is deleted, clips made of that VOD persist by default, though streamers can choose to delete individual clips or all clips associated with a particular stream. It’s not the most elegant process, and the system doesn’t work well when a streamer’s fan base has made thousands of clips over the years. On top of that, streamers now don’t know which clips to delete, because a company or organization could target anything featuring music streamers don’t technically own, and, per DMCA rules, Twitch would have to take it down and give them a strike. So, for now, some streamers are deleting all of their clips, just to be safe. Or at least, they’re trying to.
“Have talked with multiple Twitch staff all telling me my best option is to delete all of my clips ever,” Fuslie, one of the first streamers to shed light on this issue, said on Twitter. “On top of it being near impossible for me to delete >100,000 clips, the creator dashboard isn’t loading any of my old clips. How am I supposed to protect myself here?”
On a platform as fast-moving and tunnel-visioned as Twitch, clips aren’t just bite-sized shareable snack food. They also represent rare mementos of times gone by. Streamers are deleting them, but it’s a high price to pay: “I’m willing to do anything to keep my channel, even if it means deleting all my clips and memories from the past years,” said Fuslie. “I feel so helpless right now. I’ve built this channel up for 5 years and to potentially lose it all so fast to something like this would be devastating.”
Many streamers expressed similar sentiments. Others reminded their fellow streamers, that this is far from the first time copyright claims have wreaked havoc on Twitch. In 2018, a whole host of popular streamers received suspensions over the same song. Earlier this year, multiple political streamers got suspended over what turned out to be a false DMCA claim from a fake legal organization. Twitch ultimately apologized for the latter.
Unclear or false DMCA takedowns aren’t limited to Twitch, either. “Confused because I’ve already been navigating the minefield that is DMCA on YouTube for years,” said YouTuber LaurenZSide on Twitter. “How did so many people think that Twitch was just immune for some reason?”
At first glance, the solution to this problem seems obvious: Streamers should just stop playing copyrighted music. After all, it belongs to other creators, who DMCA rules at least theoretically exist to protect. But the reality of the situation is more complicated than that. For one, it’s become common and accepted for streamers to watch YouTube videos, TikToks, and things of the like alongside their audiences. This can involve licensed music, albeit often as a distant background element. Does this fall under fair use? Even if it doesn’t, does it hurt anyone? These are all questions raised by the modern streaming ecosystem, in which everything—not just background music that streamers use to fill space—exists in a gray area.
“A lot of creators panicking about DMCA,” said ex-Twitch and current Mixer streamer Gothalion on Twitter. “If it makes you feel better, any publisher/dev could DMCA you for monetizing their game if they feel like it. Our field isn’t secure (for the most part). The only thing you own is you.”
Of course, most companies do not zap streams out of existence, because they appreciate what essentially amounts to free advertising on a massive scale. Given that music is not the focus of streams in the same way games often are, you could argue that artists stand to benefit less than game makers. But individual artists rarely crack down on streams and videos. Most of the time, it’s gargantuan entities like record labels or the RIAA who go after streamers. To hear some experts tell it, more of these big organizations are now paying attention. This makes sense; after all, Twitch has grown tremendously during the pandemic and attracted a great deal of mainstream attention.
“Universal Music Group and Warner have invested in this company that’s monitoring every stream on Twitch,” said video game and entertainment attorney Noah Downs during a stream hosted by Twitch director of creator development Marcus “DJwheat” Graham. “They have the ability to issue live DMCAs. They just haven’t done it yet. It’s super important to note that that level of enforcement hasn’t even come through yet—where you’re live and you’re getting taken down live for playing music. Right now we’re just seeing clips and VODs.”
There are other issues tied up in this, as well. Some games, like Just Dance, which has a big streaming scene, don’t work without licensed music.
“I’ve been streaming a rhythm game for 5 years,” said popular Just Dance streamer LittleSiha on Twitter. “The music is in the game. So... I’m screwed in this situation.”
At this point, we could be looking at a total Twitch sea change, or this could just be another one-off salvo. Streamers are preparing for the worst by deleting clips and switching over to copyright-free music, but some have also taken to discussing the ways that DMCA rules were made at a time when the internet was not the colossal, ever-churning remix machine that it is now.
“The notion that a repeat infringer loses their account is fine in theory but it can’t be this devoid of human judgment,” said esports lawyer Bryce Blum on Twitter. “It also must be said that the value of a popular Twitch or YouTube channel in today’s environment simply wasn’t contemplated when the DMCA was written. These aren’t just accounts—they’re the work product of years of personal investment, dedication, and sacrifice by the creator. A rigid system made a lot of sense when it was created and still does in some contexts, but the DMCA needs to be re-evaluated in light of the modern influencer climate. This is big business, and it deserves more consideration than a judgement-free three strikes and you’re out.”