DMCA Takedown Notices: A New Opponent for Twitch Streamers

For several months, live sporting events were halted because of the pandemic, yet during this period of uncertainty, the esports ecosystem has been active and thriving. The increased activity has meant substantial growth for streaming platforms including Twitch and YouTube Gaming. Live streams of video gamers garner countless views, and many of these streamers have made careers of distributing and monetizing content. This developing opportunity has come with new risks and hazards. Notably, streamers are increasingly having their content challenged for copyright infringement in the form of Digital Millennium Copyright Act (DMCA) claims made against their internet service provider (ISP) platforms (Twitch or YouTube).

Some background: In order to advertise their Twitch channels, streamers create “clips” made up of highlights of their live streams in order to attract viewers, which often, include background music. This was a somewhat common practice until June 2020, when streamers began receiving notices from Twitch that DMCA takedown requests were submitted for clips with copyrighted background music from 2017 to 2019. These infringement claims involving music that is “synchronized” to video content have accelerated significantly on all platforms during the pandemic. One reason for this is the pandemic-induced lack of public performances involving live and synchronized music. With the music licensing business having ground to a halt, the performing rights organizations responsible for licensing and enforcing rights in popular music have turned their resources instead toward pursuing infringements.

Given the huge volume of streaming content on Twitch, this meant some streamers have been hit with thousands of DMCA takedown notices. For some of those streamers, deleting thousands of videos would cost significant time and money, and threaten future viewership. Below, we briefly explore the issue and the law surrounding it.

DMCA and “Takedown Notices”

The DMCA, among other things, provides ISPs, such as Twitch, with immunity from liability for copyright infringement with respect to content posted by their users if the ISP follows the strict requirements of the DMCA. Among those requirements is promptly responding to “takedown notices” received from copyright holders. Specifically, the ISP is required to remove the subject content and notify the user of the DMCA takedown notice. The user has an opportunity to object and contest the notice, as detailed below.

Although the ISPs can avoid liability by following the requirements of the DMCA, the streamers who synchronized music to their videos remain at risk for copyright infringement even if the content has been removed. However, many copyright holders choose not to pursue infringement claims as long as the subject content is promptly removed, and the user is not a serial…

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