By: Allison Bock
Twitch is a relatively new platform that attracts individuals world-wide to stream any content they want from music, cooking, Q&A sessions and, most popularly, video games. Since its creation in 2011, Twitch grew exponentially and is now the most used platform for streaming video games, especially since Amazon bought it in 2014. Because users have flexibility to stream what they want, legal issues often arise when copyrighted music plays in clips of a stream, whether as background noise, in-game music, or some other form. As Twitch continues to grow in popularity, it works to abide by U.S. copyright law and archive old streams or issue strikes for clips that contain copyrighted music under the Digital Millennium Copyright Act (“DMCA”) so that it can avoid litigation. This increased oversight leaves content creators in a panic since compliance may impact income, viewership, and sponsorships.
The DMCA “allows for websites like Twitch to host user-generated content under a provision colloquially known as safe harbor.” This safe harbor provision allows Twitch to issue strikes or take down videos that contain copyrighted material as it becomes aware of it so long as it adopts a “repeat offender policy” that requires it to remove users who continue to violate this rule. Consequently, under copyright law, streamers who receive three copyright strikes will have their account terminated until they dispute the strikes with a counterclaim.
Copyright strikes and bans that result from DMCA takedown notices started in 2018 and recently picked up again as Twitch grows its userbase. In June 2018, several streamers were issued a 24-hour ban from Twitch for copyright violations, largely issued by rapper Juice Wrld’s label. The rapper’s music played during a Fortnite tournament, and since streamers included it in their videos while streaming the game, the label felt it was not adequately compensated and thereafter pursued legal action. Fortunately, a prominent YouTube streamer “KeemStar” had resources and connections to reach out to the artist and overturn the ban. Fast forward to 2020, Twitch again saw a large influx of takedown requests under DMCA in June. This heightened copyright threat concerned streamers since they are “unsure which pieces of content violated, or continues to violate, the rules and don’t want to be banned, and they’re upset about old content being deleted without their involvement.”
The flood of strikes caused streamers, viewers, and other actors in the industry to question the way in which the United States law handles copyright on the internet. First, the DMCA is outdated and is often applied unequally in the video game and streaming industry. More prominent streamers with larger viewership and sponsorships, and therefore more money, are able to negotiate with artists and acquire the resources to avoid these strikes unlike streamers who are less known or just starting. Additionally, with its substantial growth, Twitch would have a significantly difficult task of negotiating licenses with owners of copyrighted materials to provide licensure to its streamers.
Ultimately, the DMCA has not achieved its intended Congressional purpose of curbing copyright infringement since, in practice, it stifles “a wide array of legitimate activities.” Eliminating potentially copyrighted works until a counterclaim arises also creates a gray area with fair use rights and may chill expression and creativity. The DMCA is out-of-date, and to keep up with Twitch, YouTube, and other streaming outlets, Congress is overdue for an assessment of the statute.
 Joseph Yaden, What is Twitch? DigitalTrends (Oct. 25, 2020), https://www.digitaltrends.com/gaming/what-is-twitch/.
 See id.; see also Gabe Gurwin, Twitch Remains King of Livestreaming, But YouTube is Catching Up, DigitalTrends (Feb. 12, 2020), https://www.digitaltrends.com/gaming/twitch-remains-king-of-livestreaming-2020/.
 See Mat Ombler, Should Streamers be Worried About DMCA Strikes on Twitch?, GamesIndustry (Jul. 20, 2020), https://www.gamesindustry.biz/articles/2020-07-30-twitch-dmca-strikes.
 Id.; Pub. L. No. 105-304, 112 Stat. 2860 (1998).
 See Ombler, supra note 3 (explaining the legal troubles and copyright implications that streamers must now be overly cautious about so their content is not removed from Twitch).
 Bijan Stephen, Twitch Streamers are Getting DMCA Takedown Notices (Again), The Verge (Oct. 20, 2020), https://www.theverge.com/2020/10/20/21525481/twitch-streamers-dmca-takedown-notices-riaa-copyright.
 Pub. L. No. 105-304, 112 Stat. 2860 (1998).
 See Ombler, supra note 3.
 Austen Goslin, Popular Twitch Streamers Temporarily Banned Thanks to DMCA Takedowns, Polygon (June 22, 2017), https://www.polygon.com/2018/6/22/17494198/twitch-bans-dmca-copyright-keemstar-friday-fortnite-league-overwatch.
 Nicole Carpenter, Twitch Streamers Were Issued Tons of DMCA Takedown Notices Today, Polygon (Oct. 20, 2020), https://www.polygon.com/2018/6/22/17494198/twitch-bans-dmca-copyright-keemstar-friday-fortnite-league-overwatch.
 Bijan Stephen, Twitch Streamers Are Getting Blindsided by Years-Old Copyright Notices, The Verge (Jun. 8, 2020), https://www.theverge.com/21284287/twitch-dmca-copyright-takedowns-clips-controversy-broken-system.
 See Ombler, supra note 3 (noting that the DMCA is over 22 years old and inefficient to oversee the increasing amount of user-generated content).
 Scott Alan Burroughs, A Twitch in Time: Legal Issues Catch Up with Popular Game-Broadcasting Platform, Above The Law (Sep. 5, 2018, 11:27 AM), https://abovethelaw.com/2018/09/a-twitch-in-time-legal-issues-catch-up-with-popular-game-broadcasting-platform/?rf=1.
 Unintended Consequences: Fifteen Years Under the DMCA, Elec. Frontier Found. (Mar. 2013), https://www.eff.org/pages/unintended-consequences-fifteen-years-under-dmca.