Andrew Masson is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.
Popular Twitch streamer Jeremy “Disguised Toast” Wang has exposed a massive flaw in the live-streaming platform Twitch’s copyright compliance measures. For those unfamiliar, Twitch is a live-streaming platform where content creators (i.e., streamers) broadcast themselves to an audience doing almost anything including playing video games, cooking, making music, performing ASMR, walking around in public, debating politics, etc. Viewers can tune into Twitch streams for free, but streamers and Twitch make money through viewers subscribing or donating. Twitch has been featured on the IPilogue in the past (relating to video game copyrights, moral rights in video games, and the European Copyright Directive) but this case is unique as it involves a different form of copyrighted media: TV shows.
Since the start of the pandemic, live-streaming services have seen a massive increase in viewership. Twitch specifically has seen an 83% increase in viewership in 2020 compared to 2019, with viewers clocking over 17 billion hours on the platform. It also gained more mainstream appeal, with American politician Alexandria Ocasio-Cortez streaming to over 435,000 concurrent viewers in 2021. With the increase in viewership, there is more money to be made and more people who have started streaming; streamers must now compete to attract and maintain viewers by providing engaging content. In the last couple of weeks, this has led to the “React Meta”, where streamers broadcast copyrighted TV shows and react with their viewers. Wang wanted to test this feature and took it to the extreme by streaming an entire season of the popular anime Death Note over two weeks.
DMCA and Twitch
Wang had a fellow streamer initiate takedown claims against his broadcasts under the Digital Millennium Copyright Act (“DMCA”) but was still able to stream Death Note for two weeks before Twitch acted against him. In 2007, the IPilogue questioned how the DMCA will impact video hosting platforms. The DMCA protects platforms that host user-generated content against litigation; however, to be eligible, the platform must investigate and take down allegedly infringing material. Accordingly, Twitch’s policy states that when they are contacted regarding copyright violations or receive a takedown notification under the DMCA, they verify the claim and then issue a “DMCA strike” (signifying a confirmed copyright infringement) and a temporary ban against the streamer. Twitch has a 3-strike system—once a streamer receives three DMCA strikes, their account will be permanently deleted. Wang previously had not received any DMCA strikes and stated that he broadcasted Death Note as a warning to other streamers against broadcasting copyrighted material.
Wang’s experiment may have failed to scare other streamers because it took so long for Twitch to take action, but he did expose a massive issue with Twitch’s ability to protect copyright holders’ interests. Twitch is not the first streaming platform to face these issues; in 2007, YouTube faced similar copyright issues and a billion dollar lawsuit. This led to the creation of YouTube’s “Content ID” system to monitor posted videos and livestreams for music and other copyrighted material. However, not all forms of copyrighted material will be taken down on Twitch or YouTube as video game developers and publishers do not necessarily issue DMCA takedowns for streaming their released games.
Given that Twitch started as a niche platform consisting almost exclusively of people live-streaming video games and playing music from 2011 to 2019, they rarely received DMCA takedown requests. According to Twitch, they received fewer than 50 takedown notices a year before 2020; however, as streaming became more popular, increased exposure caught the attention of the music industry who began issuing DMCA strikes by the thousands per week. This resulted in Twitch implementing tools to check vods (i.e., recorded streams or clips saved by streamers), delete any with copyrighted material, and warn streamers to stop playing copyrighted music during their streams.
Future of Twitch
As Wang demonstrated, Twitch’s ability to police copyrighted material on their platform is still far behind that of YouTube. They seem unequipped to handle their massive increase in popularity and evolution in types of material live-streamed. Apart from music, Twitch is in the same position that YouTube was many years ago; they need to improve their ability to protect IP or risk losing protection from liability under the DMCA. This is significant because one of the media giants whose IP is being used may decide to go after Twitch as a platform instead of individual streamers.