Press Play to Start: Twitch’s handling of DMCA might prove fatal for the company’s survival

It’s finally time to talk about DMCA.

Yes, yes, I’ve beaten around that bush for quite some time now. But after seeing the official Twitch gaming channel put royalty-free music over a Metallica show in real-time, I knew the time had come to address the topic properly.

For those of you who don’t know, DMCA (an acronym for “Digital Millennium Copyright Act”) is a copyright law in the United States. While it’s certainly very complex, what’s important to know is that the law prevents the dissemination of copyrighted material on the internet without consent of the owner. 

What’s so bad about that? Nothing really. Copyright laws are in place to protect individuals and their products from theft. And generally, they succeed. But things get a little trickier when it comes to Twitch. 

Video games and esports are fast-paced, so livestreaming is content delivered at the speed of light. Not only is livestreaming instant but it often requires very little infrastructure and preparation. This has led to thousands of streaming channels being created, meaning there seems to always be someone you like streaming something you love — and also likely using copyrighted material.

This isn’t to say that streamers are thieves. But let’s explore a hypothetical situation; Say you’re a Twitch streamer. Odds are you probably stream some sort of video game. And let’s say that, while you’re riding around the fictional world, a copyrighted song starts playing through the in-game radio. Or imagine that you’re talking to your chat while you wait for the game to load and decide to put some music in the background while you wait. Are these things theft? Technically, all you’re doing is listening to music. But at the same time, you are earning money based on someone else’s copyrighted content. 

Are you starting to understand why I called copyright laws on Twitch “tricky”?

In reality, it’s hard for someone to receive a DMCA strike — a notice of copyright infringement which can lead to the streamer being banned from the platform — during a livestream. Like I mentioned before, there are thousands of channels simultaneously streaming, so the chances of someone finding your stream the moment in which you use copyrighted material are incredibly low. The majority of them are found through archived livestreams or “clips” of the streams that get shared around. It’s also worth noting that, up until last May, streamers on average received less than 50 DMCA-related messages per year. So what happened?

According to Twitch, record labels began taking a more active role in hunting down those clips and sending strikes to channels. Under the DMCA law, Twitch as a platform is protected from any legal responsibility as long as they remove or block the copyrighted content on the platform. So, to avoid being sued directly, Twitch moved swiftly in notifying creators of the infringements. 

Actually, swiftly might be a little too nice of a word for what happened. 

Twitch sent out emails to hundreds of streamers telling them either to delete the copyrighted content or, depending on the number of strikes they had, risk having their channels terminated. In some cases, Twitch scrubbed the content off themselves, notifying the creator only after the process was done. 

After some time, Twitch recognized its mistakes in a blog post and promised to implement better tools to help streamers deal with the problem, such as creating a database of copyright-free music and allowing streamers to file counter-notifications. But everything that Twitch has currently offered is, at most, simply a means to escape possible retaliation from record labels. 

In other cases, the proposed changes have no actual weight and are simply just for show. Take, for example, the ability to file a counterclaim. Sure, creators need to be able to stand up for themselves. But without Twitch’s help, only the streamers who have the financial means to go to court against a big record label will go through with it. The platform needs to actually take a stand with its creators and try to make the current situation better and not just bearable. 

While Twitch must follow DMCA guidelines, it still has enough leverage to try and make a deal with the labels themselves. Twitch is a massive platform that brings in millions of viewers, larger than any of its competitors. It would be in the interest of the labels to strike a deal and have their music showcased on the site.

This entire situation started because of copyright law, something that already puts it leagues above the internal politics of esports tournaments. But that shows just how essential it is for Twitch to do something about it. If Twitch doesn’t stand up for its creators, it’s likely that the current situation will not change, as labels will continue to use DMCA with no regard to the streamers they are impacting. 

More and more, creators will feel as if the platform has become impossible to survive in, giving ample room for Twitch’s competition to step up and steal them away. So finding a way to diminish the effects of DMCA and empower streamers is, quite literally, what might determine Twitch’s survival as a platform.

Guilherme Guerreiro is a sophomore writing about esports. His column, “Press Play to Start,” runs every other Wednesday.