TWITCH VS THE MUSIC INDUSTRY
Metallica did not compose the music for a Legend of Zelda game, the band’s BlizzCon 2021 concert was replaced with cheerful midi music, giving the impression that they had (LOL). The world’s largest streaming platform had no choice but to censor its own broadcast or risk upsetting an already agitated music industry, which it did.
When the music industry attacked Twitch in a letter in 2020, it claimed that it was doing so because the company “continues to turn a blind eye to the same users who are infringing the law while pocketing the proceeds of massive unlicensed uses of recorded music.” After years of largely ignoring Twitch, the music industry began sending thousands of Digital Millenium Copyright Act (DMCA) takedown notices for infringement of intellectual property rights. Twitch reacted in a dramatic manner. It forced streamers to delete thousands of old video on demand (VOD) files in October, with no reliable tools to identify which files were problematic.
The music industry is dissatisfied with the use of copyrighted music in livestreams and video on demand, but Twitch’s existing solutions are all geared toward video on demand. The company also insists that Twitch be required to pay for broader licenses for its Soundtrack tool, which is intended to allow streamers to safely play licensed music. Is the Metallica concert a preview of what enforcement will look like in a few years, with automated tools detecting and silencing copyrighted material live, rather than just cleaning up VODs, if the music industry continues to press forward?
In the words of Kellen Voyer, a lawyer who specializes in intellectual property and technology law, “[that’s] what I would expect.” “With any new technology, there is an initial period of freedom, followed by a period of adjustment, and finally a period of equilibrium between the technology and the rights holders. Then another technological breakthrough occurs, and the process begins all over again.”
Beginning on November 11, 2020, Twitch will officially address the issue of DMCA violations and copyright violations in its new system. Following the launch of Twitch’s new Soundtrack system in late October, users began to notice an increase in the number of DMCA takedown notices they were receiving. Twitch has opened the doors to allow copyright holders to file DMCA complaints against streams that contain unlicensed music as part of an effort to better comply with US copyright legislation. Record labels and other intellectual property owners were able to file DMCA takedown requests as a result of this. Even Twitch acknowledges that the number of music-related DMCA complaints increased from 50 per year to thousands per week following the implementation of its new system.
Twitch Soundtrack, which was launched last year and features a selection of licensed music, appeared to be a viable option. The music industry, on the other hand, claims that Soundtrack does not include all of the licensing that it should. What exactly is lacking? Synch rights, which are difficult to obtain. Synch rights are those that apply when music is combined with visuals. Twitch claims that Soundtrack is “fully licensed,” but its argument is based on an interpretation of the law that would imply that synch does not apply to streams of the game’s soundtrack. The music industry, on the other hand, is not of that opinion. So why did the admonishment letter instead of a lawsuit come about?
RIAA and other organizations, according to Voyer, are holding out for a deal to be reached with Twitch. “They have a long history of protracted, public battles over new technologies that have never ended exactly how they wanted them to and have frequently been detrimental to their public relations. It is possible that the parties will enter into a profitable relationship if they reach an agreement, and continuing to push outside of court is one way to pursue this possibility.”
Facebook Gaming has reached an agreement with major record labels to allow for the use of licensed music in both livestreams and video-on-demand (VOD) content. There are still some restrictions on which songs can be played, but it is a “throw money at the problem” solution that removes some of the risk from the creators’ shoulders.
Twitch Soundtrack launched with approximately one million songs, but the service does not have agreements with any of the major music companies, such as Warner, Universal, or Sony, as does Facebook’s service. If big-name partnerships and a licensing agreement aren’t in the cards for Twitch, it appears likely that some sort of automated copyright system for livestreams will be implemented in the future.
YouTube’s Content ID system is designed to scan videos and compare them to a database of copyrighted material. It is currently in beta testing. Content ID can even monitor livestreams and shut them down if they contain content that is protected by intellectual property rights. When copyrighted material is detected, Twitch employs a service called Audible Magic to mute it in VODs and clips. However, this service does not work in real time.
For YouTubers, Content ID has some significant drawbacks. Mismatches can result in unjustified bans, and the Electronic Frontier Foundation claims that the system is too good at flagging music, effectively bulldozing situations that should be considered fair use in the United States.
That isn’t the most pressing issue facing Twitch streamers right now, but if the platform adopts technology that scans for copyrighted material in real time, rather than just in VODs, it could result in significant changes. If the music industry continues to press its case, Voyer believes that this is a possible outcome. The company is concentrating its efforts right now on tools for streamers, such as the ability to more easily delete batches of VODs and improved DMCA notifications. If Twitch is working on new licensing agreements or developing a content matching system that will work in real time, the company is not disclosing those plans publicly.
As Voyer explains, “I expect that the majority of streamers want to use music without having to worry about licenses because it provides them with the best internet experience.” Alternatively, artists seek exposure as well as compensation for the use of their works; this is their preferred internet experience, according to the authors.
A solution such as Content ID for live streams would almost certainly appease the music industry—and address its complaint that “Twitch continues to turn a blind eye to the same users repeatedly violating the law”—but it would almost certainly come with the same drawbacks as those identified by the Electronic Frontier Foundation earlier. If Voyer is correct, then copyright issues on Twitch will continue to escalate until something breaks, according to Voyer. “It is impossible to appease both sides completely, but I believe that a new normal will emerge following this current period of tension (which, I believe, will only worsen before it improves).”
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