Please Don’t Stop the Music: DMCA and Twitch Takedowns

          2020 has been a busy and eventful year, but on June 7, 2020, Twitch added to the list of events when they started a massive takedown for videos and streams containing copyrighted music. In this article, we will go over the Digital Millennium Copyright Act (DMCA) and why Twitch periodically goes through these takedown periods while other times they remain silent on the infringement.

So what is the DMCA?

          The DMCA was signed into law under the Clinton Administration in 1998 in order to combat rampant copyright infringement on the internet.  Copyright infringement, the act of using a work (picture, music, book, etc.) without the proper licenses or permissions, was of particular concern in the Late 90’s and early 00’s given the growing power and accessibility of the internet.  For content creators, the DMCA was an agreement between copyright holders (owners) and service providers. Copyright holders got to protect their work on any given websites, and the website/service provider did not need to worry about being held liable for the infringing content that they had no role in uploading. This compromise was summarized in one term, “Safe Harbor.”

How does Safe Harbor Work?

          There are requirements for Safe Harbor protections: the service provider must have a method to be notified of possible infringement, the copyright owner must notify the service provider of the possible infringement, and the service provider MUST take down the infringing material. After the takedown, the uploader can contest the copyright claim and if they prevail the video may be placed back on the website. This is a vital function for the service provider as failing to take down the alleged infringing content will destroy the Safe Harbor and the service provider will become liable for the infringements, possibly facing a copyright infringement suit.

What’s with the Sudden Takedowns?

            Some are wondering why now, all of a sudden, there are takedowns. Generally, it takes time for the copyright owner to discover the infringement. Whenever they discover the infringement, they send notice to Twitch and per the rules, Twitch must take the infringing work down immediately.  It’s not that Twitch has changed the rules, it’s that the holder has sent out notices on all infringing videos.  If you want to be safe here is a rule of thumb: if you don’t have sync rights (license to use) from the holder, then don’t use it. Twitch’s DMCA rules for notice have five components:

  1. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works.
  2. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Twitch to locate the material. Providing a link to the broadcaster’s feed and the timestamp of the particular segment of the feed at which you believe there has been an infringement is the best way to help us locate content quickly.
  3. Include a statement that: 

  • You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • The information in the notification is accurate, and a statement under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (For example, “The information in this notification is accurate, and under penalty of perjury, I am the owner, or an agent authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.”)

  1. Information reasonably sufficient to permit Twitch to contact you, such as an address, telephone number, and, if available, an email address at which you may be contacted.
  2. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed (typing your full legal name is sufficient).

The full rules can be found at https://www.twitch.tv/p/legal/dmca-guidelines/.

What Can Happen if I’m Caught Infringing Another Work?

          The Penalties for copyright infringement can be hefty. §504 of the Copyright Act dictates that an infringer will pay statutory damages to the holder ranging from “a sum of not less than $750 or more than $30,000 as the court deems just.” Remember this is per infringement, so 2 videos could result in up to $60,000 in damages, so on and so forth. In December of 2019, Twitch was sued over the broadcast of English Premier League games on streams. The suit was for over $3 Billion Dollars and has not yet been resolved. This is why any time there is a notice, Twitch will take it down. Thankfully, only the owner can issue the notice and they must present proof that they are in fact the copyright owner, so no takedowns out of spite from a random competitor. However, just because your friend’s video did not get taken down does not mean yours won’t, and there is no telling how many years it may take for the notice to come in and the video to be taken down. You are also liable for those infringements in your content and you can be hit with the lawsuit even if twitch takes your video down. So, don’t get sued.

          Thankfully, there are many music creators who have blanket licenses that allow you to use their content. Some are free of charge provided you give them credit, and some are paid subscriptions. One example of a free catalogue is ninety9 lives. You can find a paid subscription at Epidemic sound. Their links are featured below.   https://www.ninety9lives.com/account/?license=twitch

https://www.epidemicsound.com/campaign/music-for-twitch/?_us=adwords&_usx=9557961773_%2Bmusic%20%2Btwitch&gclid=Cj0KCQjww_f2BRC-ARIsAP3zarGgX1L9LwloD76tQUZqhBS-5uJQ5sWJTWyWXZ6SH7IUX3xVnJ46TFkaAozZEALw_wcB

          There are many more resources on the web for quality content you are authorized to use.  You can review the Twitch guidelines on music use here at https://www.twitch.tv/p/legal/community-guidelines/music/. Also, remember that buying a song off iTunes or Amazon does not give you a license to play it on your stream or in your video. Sorry.

So Here’s the Bottom Line:

          TO BE CLEAR, FAIR USE WILL NOT PROTECT YOUR USE OF MUSIC IN STREAMS OR VIDEOS.  There are a small number of particular circumstances that make this a nightmare for creators like you…and not like you… so just expect that it will not help you combat an infringement claim. In short, the DMCA is to protect authors of all works, and anytime that the copyright owner makes a claim, the alleged infringing work will be taken down, so be careful what items you use in your streams and videos. Music isn’t the only thing that can take you down.WS

The1uplawyer (Sean Mendez-Catlin)

-Follow on twitter @the1uplawyer

-Keep an eye on the Blog for more information on this and many other topics. 

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