Twitch partner Kate Stark was in a meeting when she got an email from Twitch saying some of her videos had copyrighted music in them and had been deleted. She panicked. “And then I went to Twitter,” Stark says, “and it seemed like everyone had received one. So that’s when I was like, ‘Okay, what’s going on?’”
Stark wasn’t alone. On October 20th, thousands of streamers got the same message from Twitch, informing them that a complaint had been filed against their channel for hosting videos with copyrighted music — videos which Twitch had then deleted. “We have processed these notifications and are issuing you a one-time warning to give you the chance to learn about copyright law and the tools available to manage the content on your channel,” Twitch wrote. Streamers were given three days to clean up their accounts before takedown notices and account strikes started coming through again.
It is INSANE that @Twitch informs partners they deleted their content – and that there is more content in violation despite having NO identification system to find out what it is. Their solution to DMCA is for creators to delete their life’s work. This is pure, gross negligence. pic.twitter.com/mhdXU5lEc5
— Devin (@DevinNash) October 20, 2020
Stark and other streamers faced a difficult choice: delete all of the remaining clips (minute-long segments of a live stream) and VODs (replays of full live streams) on their channels to play it safe, or let the videos stay up and hope that none of them contained copyrighted music, risking a permanent ban from Twitch.
The company hadn’t given streamers the tools to make any other choice; they couldn’t see which clips and videos might contain infringing music or which videos Twitch had already deleted. And once the grace period was over, streamers would again be subject to Twitch’s policy around its copyright enforcement. “Three strikes and your channel’s gone,” Stark says.
Stark asked the company to clarify on Twitter what material it had gotten rid of because, like many streamers, she’s been on the site for years and had too many clips and VODs to search through manually for snippets of copyrighted music. “I also didn’t want to delete all of them because it is a four-year scrapbook of my career,” she says. “I get to see every apartment I’ve lived in. I get to see every stream overlay I had. I get to see all of my crappy alerts. I get to see the people in chat at the time. I get to see the games I was playing.”
So Stark took matters into her own hands. She bought a two-terabyte hard drive, installed scripts that former Twitch employees had written about or linked streamers to, and began to download everything she could before Twitch’s grace period ended.
So, what you’re saying is all potentially copywritten music clips/VODS on my channel have already been identified and deleted, so I don’t need to delete anything right now?
I need clarification because I don’t have the time to go through 4 years of clips.
— Kate (@katestark) October 20, 2020
“I ran a script for 72 hours, downloading as many clips as possible. And once it got to the deadline, I still had thousands left,” Stark says. Twitch still hadn’t responded to her questions on Twitter, which left her with one choice. “I couldn’t keep going anymore. And I had to make the decision just to delete all of them.”
Stark’s videos are the latest casualty of a fight that’s been going on between Twitch and the music industry for years. It escalated dramatically on October 26th, when the music industry accused Twitch of enabling and ignoring copyright violations in the form of a fiery missive to Amazon, the streaming platform’s parent company. The letter, which was obtained by Variety, outlined what major music industry trade groups — the Recording Industry Association of America (RIAA), the National Music Publishers’ Association, and SAG-AFTRA, among others — saw as Twitch tolerating rampant copyright infringement on its platform.
And it’s true: Twitch has for years tolerated copyright infringement on its platform. It’s part of the site’s culture to play music in the background of streams, and no one really checks for the appropriate licenses. Twitch hasn’t been proactive about flagging or removing copyrighted music from its site because the “safe harbor” provision of Digital Millennium Copyright Act (DMCA) means that Twitch itself isn’t liable for copyright infringement if it responds to copyright infringement notices from right holders — and sending those notices is the rights holder’s responsibility. And until recently, the music industry wasn’t paying much attention to Twitch. Now it is.
As the battle with the music industry over copyright has intensified over the years, and as even larger streamers played infringing music in their streams, Twitch has resorted to half-measures of enforcement. “[Twitch] would mute that section in the VOD, but then they would let the clip go,” Stark says, meaning that Twitch muted the audio for portions of archived streams but didn’t take any other action. “More recently, they started muting the clips. And more recently, they started auto-deleting the clips if there was copyrighted music in it.” Even so, some clips with copyrighted music would still make it through Twitch’s filter because using music in streams without a license is endemic to the culture of streaming.
“But they never punished anybody. Until very suddenly they did,” she continues. “And it was shocking because it’s like, well, you didn’t do something for so long.”
For Twitch and its streamers, the stakes of a war with the music industry are existential. Channels get banned by Twitch for routinely violating copyright law. Twitch itself is in a similar position. If it’s sued and a court finds it knowingly hosted copyrighted material, the platform could be stripped of that all-important DMCA safe harbor protection and the site as we know it might cease to exist.
For its part, the music industry wants Twitch to come to the negotiating table and pay for the licenses it needs to allow streamers to easily use copyrighted music on the site. The industry also wants better, more proactive copyright enforcement on the platform — something like YouTube’s Content ID system, which is very aggressive (and problematic in its own right because of it). Twitch, however, has attempted to find a technological solution to its copyright problem — an ambitious product called Soundtrack, which was released in beta to all creators on October 19th, the day before Kate Stark got her copyright infringement notice from Twitch.
The music industry isn’t happy with that development. The letter that Variety published takes direct aim at Soundtrack. “We are confounded by Twitch’s apparent stance that neither synch nor mechanical licenses are necessary for its Soundtrack tool,” the industry groups wrote, referring to the standard licenses that allow music to be used and reproduced in various ways. (Generally speaking, synch rights are necessary for music to be used as a background to visuals, and mechanical rights are the right to reproduce a song onto physical or digital media, like, say, a CD or a stream on Spotify.)
And then, later in the letter: “Twitch appears to do nothing in response to the thousands of notices of music infringement that it has received nor does it currently even acknowledge that it received them, as it has done in the past.”
Twitch contends that Soundtrack is fully licensed, but the music industry disagrees. And its subsequent outrage is instructive, because it suggests something more serious is on the horizon. In the meantime, streamers like Stark are caught in the crossfire.
Twitch Soundtrack is pretty simple. It’s a piece of software with a Spotify-esque design, and it hosts curated playlists from the labels and distributors that Twitch has partnered with. They include Soundcloud, Chillhop Music, Insomniac, and others — mostly smaller outfits. To use Soundtrack, you set it up as a separate source within your streaming software, where it actually separates the music stream from the audiovisual stream so it can be stripped out later — like, say, if a label issues a takedown request. The result is streamed VODs that don’t have any music; they can live on in archived form on Twitch channels without any music copyright issues.
“We want Soundtrack to be a helpful tool for Twitch creators, but we also want it to provide a much-needed signal-booster for independent artists seeking to be discovered and heard in the way that major label artists are discovered and heard on streaming services like Spotify,” wrote Twitch VP of music Tracy Chan in an email.
I’ve been testing a beta build of Soundtrack in my own streams for the last couple months; it works mostly as advertised, although it is somewhat overzealous. Even when the software isn’t running on my streaming PC, my archived broadcasts on Twitch have any music stripped out — even royalty-free music that I played while the app was closed and its sources were deleted in OBS. A spokesperson from Twitch said this was a bug, but it gestures to a larger design choice about what Soundtrack is meant to do: keep music isolated from video streams so it can be managed without affecting the rest of the stream, because Twitch doesn’t have the requisite licenses that would allow music to stay in archived VODs.
And to be clear, Twitch doesn’t have synch rights for Soundtrack because it contends that it doesn’t need them. A Twitch spokesperson provided the following statement via email: “The music from Soundtrack is put into live streams and does not end up in VODs, and therefore we and our partners agree that synch licenses are not needed for Soundtrack,” they write. “All other rights, including mechanical rights, are covered in our agreements with the labels.”
The rest of the music industry believes that Twitch needs a broader deal covering more uses of music to have its music on its platform. Any given recording of a song has layers of copyright protections involved: the underlying song itself is written by a songwriter, who might be represented by a music publishing house; an individual recording of that song is owned by the label or artist, which grants a different set of rights; and any samples in that recording might be covered by additional copyrights.
And there are many kinds of music rights in play: the right to use a particular track over video is licensed by the labels, while the right to play music in public (like, say, in a restaurant or on a live stream) is granted by the music publishers.
It’s not easy to sort it all out. Twitch’s strategy appears to be doing the minimum — paying the publishers for live performance rights — and just deleting the music afterward.
“We’ve also continued to support the music economy by paying royalties to performing rights organizations like ASCAP, BMI, SESAC, and GMR, and licensing fees to labels and publishers for the use of music in Twitch’s own productions and projects,” Twitch wrote in a statement to Variety in response to the music industry’s letter.
But the recording side of the music industry — the labels — contends that those are not enough to allow streamers to play music while live. Because, at the end of the day, music is being played to a visual accompaniment, which is traditionally when you need synch rights. For Twitch, Soundtrack is a technical middle way: Twitch is positioning it as the playlist in its metaphorical restaurant, one that only plays for the hours the business is open. If the restaurant isn’t serving food — if a channel isn’t live — it’s not playing music. The argument hinges on the live nature of Twitch itself.
“Soundtrack is just kind of them trying to kick the can down the road,” says Nate “Knaught” Beck, the founder and CEO of Pretzel Aux, a streaming service that licenses music to play on Twitch. Pretzel Aux also owns Ninety9Lives, an indie record label. Beck says that Twitch is positioning Soundtrack as a boon to the industry — though, he says, they’re not actually paying for licensing and they’re not dealing with the other unlicensed copyrighted music on the platform. “The record labels are not getting any money from Soundtrack,” Beck says. Billboard reported that the partnered labels are “exchanging access to portions of their catalogs for exposure to Twitch’s enormous user base.” The larger labels don’t agree with that choice.
Soundtrack stands in stark contrast to Facebook Gaming’s music offering, announced in mid-September, which allows the site’s partners to play just about any music they want over their broadcasts. Those archived streams can also keep their musical accompaniments. The way it happened was pretty simple: Facebook negotiated with the industry directly and spent a king’s ransom on licensing fees. “The fundamental idea is, let’s make music as available as possible for as many creators as possible for absolutely as long as possible,” said Leo Olebe, Facebook’s global director of gaming partnerships, when I reached him by phone. “And this is something we’re committed to.”
The fight between Twitch and the music industry has been going on all summer. In June, a wave of DMCA takedown notices from labels hit streamers over years-old clips. They were sent out five days after the CEO of the RIAA expressed his displeasure with a Senate hearing on the DMCA’s notice and takedown system. “Yesterday’s hearing confirmed without question that the DMCA is broken and the time has come for change,” said Mitch Glazier, the RIAA’s head at the time. “The system must have incentives for creators and tech platforms to collaborate to provide effective online protection for the creative works that drive innovation, our culture and economy.”
The music industry’s fight with Twitch is operating from an old playbook. In 2007, Viacom filed a lawsuit against an early YouTube, alleging the site was knowingly harboring a huge cache of copyrighted material and attempting to strip the site of its DMCA-given safe harbor. The fight dragged on for seven years and one appeal until, in 2014, the parties and Google settled. It led to the creation of Content ID, a fingerprinting technology used today that allows rights holders to create an ID file for their copyrighted audio and video. Unsurprisingly, there are a ton of criticisms of this system: only specific accounts can use the service, and it is far from perfect. But it did resolve some of the site’s issues with copyrighted material.
To make the comparison explicit: Twitch is operating the same way YouTube was in 2007, sending strikes to streamers when they receive word of infringement from rights holders. But Soundtrack isn’t Content ID, and to the labels, it doesn’t address the core problems with copyrighted music on Twitch.
If the music industry continues to send DMCA takedown requests to Twitch and channels go unsuspended for violations, it can build the legal case that Twitch is knowingly allowing copyright infringement on its platform and should no longer enjoy the safe harbor protection of the DMCA. And that could either be the end of Twitch or the beginning of the site negotiating something like Content ID directly with the labels.
Streamers, of course, have been caught in the middle. Twitch has a culture of playing music over broadcasts, and it is true that Twitch has tolerated streamers playing copyrighted music during their streams; those June DMCA takedown notices wouldn’t exist otherwise.
But I should be clear: nobody is watching streamers because of the music they play while they stream, and no streamers are playing copyrighted music in order to get their channels taken down. The music industry’s contention is that Twitch has not done enough to protect its financial interests, but in the meantime, streamers are paying the price.
This month, after Twitch deleted those offending clips, many streamers threw up their hands and deleted their archives of clips and VODs entirely to avoid getting banned — their life’s work — because Twitch still doesn’t have a tool that allows its creators to see which videos are infringing. (In a recent blog post, the company said it was working on new tools to solve the issue.)
“It was incredibly contradictory and disheartening. Especially for people like me,” says Stark. “I’ve been on Twitch for five years. it’s changed my life and it’s my full time job. I want to believe in this platform. But it gets difficult to do so when they do stuff like this.”
Whether the situation gets better anytime soon is an open question. The latest front of the battle is creators receiving DMCA strikes because they’ve streamed a game with copyrighted music in it. “It’s not like record labels are going to back off,” says Harris Heller, streamer, YouTuber, and creator of StreamBeats, a royalty-free music service for streamers and YouTubers. “The majority of streamers are still using copyrighted music on their streams. As long as that continues, this is going to get just so much worse,” Heller says.
He’s also realistic about where this fight over copyright leaves streamers. “Content creators are — at the bottom line, they’re expendable, and the platforms will ban creators off their platform if they don’t conform to the rules. Otherwise, the entire platform gets shut down,” he says. “Twitch is not your friend, YouTube’s not your friend. They are a platform and you are essentially their employee. And they have millions of employees.” Meanwhile, the war drags on, and streamers are left stranded on the battlefield.