Post Authored By: Natalie Elizaroff
Content creators on the popular streaming website Twitch  have once again been slammed with takedown notices. This comes as a follow-up to the battle that started brewing earlier this year.  This new round of carnage has left many streamers dissatisfied with Twitch’s response and confused on how to proceed. It does not help that Twitch’s most recent blog post fails to remedy the ongoing issues and begs the question of – why wasn’t something done sooner? 
What is the DMCA?
The Digital Millennium Copyright Act (“DMCA”) has been around since 1998.  It was officially implemented in 2000 as an update to bring U.S. law in line with the 1996 WIPO Copyright Treaty. The three main changes were: (1) protecting access to or copying of a copyrighted work; (2) providing web hosts and Internet service providers a safe harbor from copyright infringement claims; and (3) criminalizing false copyright management information.  Breaking this down further, websites like Twitch are immune from lawsuits as long as they comply with the notice and takedown procedure by providing users a DMCA policy, removing infringing material, and implements a counter-notice process. 
If it is so simple, why is the DMCA coming after Twitch?
The Recording Industry Association of America (“RIAA”) issued 1,817 copyright notices to content creators in June 2020, which was a stark uptick from the ~710 notices that had been issued over the course of three years from the associations humble beginnings in 2017.  In order for Twitch to avoid lawsuits for failing to abide by the notice and takedown procedure, they had to act fast to remove the infringing content. This resulted in Twitch making the executive decision to warn and subsequently remove any infringing content from their website – a big blow to streamers because Twitch’s actions were equivalent to being written up at work, but the problem was not specified, and the corrective actions were left blank. As such, content creators were left scrambling amidst Twitch’s lack of clarity on what constituted as infringement – and unfortunately, it does not look like they will get it any time soon.
How does this affect content creators?
It depends on the content that streamers are using. Twitch has a ‘three strikes and you’re out’ policy that permanently bans content creators if they accrue three warnings for copyright infringement. Twitch’s policy states that, “you cannot play copyrighted music during your Twitch streams without a licensing agreement from the label or the recording artist.”  With that in mind, Twitch recommends streamers delete any previously-recorded videos—including past broadcast video on demands (VODs), Highlights, or Clips—containing copyrighted music, even if they have permission to play a song during livestreams. New licensing agreements are not retroactive and do not cover older videos unless you explicitly obtained permission.  Accordingly, for streamers using recorded content, it is recommended to find an alternative music source such as Chillhop, Soundstripe, NoCopyrightSounds, or other “royalty-free” platforms.
A summary of what is and what is not allowed on Twitch is as follows:
Music that CAN be used for broadcasting / VODs
• Music that is owned by you – Original music which was written by you and either recorded or performed live by you, and for which you own or control all rights necessary to share the music on Twitch, including the rights to the recording, performance, and to the underlying music and lyrics.
• Music that is licensed to you – If you have purchased or secured a license to use music that says you can use it for content creation purposes.
• Twitch Sings – A performance created by Twitch Sings gameplay, until the January 1, 2021 shutdown.
• Soundtrack by Twitch – Music added to your live streams using Soundtrack by Twitch.
Music that CANNOT be used for broadcasting / VODs
• Radio-Style Music Listening Show – Running a show that listens to copyrighted music or music that isn’t owned / licensed by you.
• DJ Set – Playing and/or mixing pre-recorded music tracks which incorporate copyrighted music or music that isn’t owned / licensed by you.
• Karaoke Performance – Singing or performing to a karaoke recording other than an in-game karaoke performance that is licensed for you to share on Twitch, such as a Twitch Sings Performance.
• Lip Syncing – Pantomiming, singing, or pretending to sing to music that is not owned by you or is not licensed for you to share on Twitch.
• Visual Depiction – Music that you do not own or is copyrighted, including lyrics, tablature, or any other visual representation of that music.
• Cover Songs – Covering songs for your Twitch performance is fine, with effort to create all audio elements yourself (such as original tracks, recordings, or any other element owned). Using someone else’s performance as background music for your cover is not allowed.
What is Fair Use?
Fair use is any copying of copyrighted material done for a limited and “transformative” purpose. Fair use is a defense against a claim of copyright infringement. Generally, most fair use analysis falls into two categories: (1) commentary and criticism; and (2) parody. 
What are Creative Commons Licenses?
The Creative Commons (“CC”) is a nonprofit organization that has created different kinds of licenses to allow individuals to choose which type of copyright protection best suits them and their work. CC licenses grant broad permissions to others to share, remix, and use otherwise copyrighted work. These licenses work alongside copyrights but allows artists to authorize a freer usage of their work. 
What do content creators have to say?
As a newly affiliated streamer on Twitch, I had the opportunity to reach out to some streamers to get their thoughts on the recent DMCA issues.
LandFork (https://www.twitch.tv/landfork): I think that the DMCA takedowns have always been a thing. I am not happy that it can effect streamers and their careers so quickly. About 3 months ago when everything was going crazy on the internet and everyone was freaking out….I deleted almost all my VODS. My VODS had a ton of muted stretches in the stream so I knew I was at a closer risk than most. I left some clips, but also deleted most to avoid any issues. I actually did not do much about it after. I play mostly non-copyrighted music currently…but my alerts and such are created from mostly YouTube videos, that no I have not paid to use. So, I am certainly scared while using them. I have to either spend time trying to acquire the rights on every single alert, or make sure no rights are needed, or I’ll have to redo them all…
I think that twitch has done some wrong things and right things. I know that Twitch is getting most of the blame for the acts and takedowns. However, this is only true because they are just responding by law for what streamers have done. Twitch itself doesn’t handle the takedowns, they simply accept the requests of music brands and companies that have found that creators/streamers have been using music/videos and other things without having the rights for it. By law, twitch has to accommodate these requests and give strikes out. I think Twitch by having recognition software to be able mute sections of clips and video clips has been very helpful. That is Twitch doing it to help streamers from the very start. Now they are implementing more and more tools to help make creators aware of how to avoid takedowns.
Aeseaes/“A Couple Streams” (https://www.twitch.tv/a_couple_streams): Though, our stream doesn’t have a direct connection with the DMCA issue like many other streams because we do not use backing tracks or published music, we exclusively play live music. Twitch has public performance licenses for live music like we do, but that does not cover folks who are using backing tracks or listening to music via spotify/youtube/etc. Music streamers and fans of music streams seem to be the ones who are most concerned about the DMCA issue, but in reality it is game streamers using published music during their streams that is the overwhelming offender and are also the ones who have been hit with DMCA takedown requests. To my knowledge, Herman Li has been the only musician on Twitch hit with a DMCA request and it was because he was playing his own band’s published music on his stream (which we also do with our music during the waiting screen before we go live, but we have twitch.tv whitelisted with our distributor so we won’t get flagged for broadcasting our own music).
Clairepics (https://www.twitch.tv/clairepics): Honestly it’s hard to say in detail because I’m not nearly as well versed in copyright law as someone who has studied, but I’ve talked a lot with my friends who are doing this. The response ranges from ‘I’m going to do what I want and hope for the best’ to ‘I’m shutting down absolutely anything that’s not original or public domain and I’m deleting my entire library of content.’ There’s enormous frustration with twitch for saying that no license exists to help creators with this when Facebook gaming currently has one and people are, in general, hurting. I’m trying to be as understanding as possible. As a creator, I understand the value of copyright protecting the things I make and want to see original creators compensated. It’s all a mess though.
There is still a lot of uncertainty when it comes to DMCA takedowns and the long-lasting effects that this will have on the Twitch community. There are many confused individuals who are overwhelmed by the drastic measures being taken on Twitch. As the world becomes more digitized, it is important to take the time to reevaluate the infrastructures that are in place. Neither the DMCA nor the WIPO Copyright Treaty were drafted with platforms like YouTube, Facebook, and Twitch in mind. It may be worthwhile to look back and reassess these old laws as we move forward.
 Twitch (2020), https://www.twitch.tv/p/en/about/.
 Bijan Stephen, Twitch Streamers are Getting DMCA Takedown Notices (Again), Verge (Oct. 10, 2020), https://www.theverge.com/2020/10/20/21525481/twitch-streamers-dmca-takedown-notices-riaa-copyright.
 Kshiteej Naik, Twitch Apologizes for Recent DMCA Takedowns, IGNIndia (Nov. 12, 2020), https://in.ign.com/tech/152522/news/twitch-apologizes-for-recent-dmca-takedowns.
 17 U.S. Code § 101; The Digital Millennium Copyright Act, United States Copyright Office, https://www.copyright.gov/dmca/.
 Steven Buchwald, DMCA Safe Harbor Explained: Why Your Website Needs a DMCA/Copyright Policy, Buchwald & Associates (Aug. 1, 2017), https://buchwaldlaw.com/2017/08/dmca-copyright-safe-harbor-explained-website-needs-dmcacopyright-policy/.
 Shannon Liao, Music is big on Twitch. Now record labels want it to pay up, CNN Business (Aug. 14, 2020), https://www.cnn.com/2020/08/14/tech/twitch-record-dmca-copyright-notices/index.html.
 DMCA & Copyright FAQs, https://help.twitch.tv/s/article/dmca-and-copyright-faqs?language=en_US.
 Max Foreman, How Music Copyright Works: Sampling, Covers, Mixtapes & Fair Use, Pro Audio Files (Mar. 22, 2018), https://theproaudiofiles.com/music-copyright/.
 About the Licenses, Creative Commons (Nov. 7, 2017), https://creativecommons.org/licenses/.
About the author:
Natalie Elizaroff is a 2L at UIC John Marshall Law School. She is the President of the Video Game Law Society and Secretary of the Intellectual Property Law Society. Prior to law school, Natalie graduated with a B.S. in Molecular Biology from Loyola University Chicago. Natalie plans to take courses in U.S. Trademark Law and U.S. Patent Law and hopes to work in the Patent Clinic in the upcoming year.