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On Aug. 6, 2014, video-streaming website Twitch.tv announced that it would implement a new system that would automatically mute unlicensed audio in certain videos. Game lawyer Zachary Strebeck looks at this from the legal perspective.

Zachary Strebeck, Blogger

August 12, 2014

11 Min Read

On Aug. 6, 2014, video-streaming website Twitch.tv announced that it would implement a new system, similar to YouTube’s ContentID, that would automatically flag and mute unlicensed audio in certain videos. Only so-called Video on Demand content would be affected by this policy shift, though it isn’t certain whether leaving out live streams is for technological or philosophical reasons.

This, as Twitch reiterates in their announcement post, is a voluntary action on their part. Generally, unless they have certain actual knowledge or are partaking in the infringement, a service provider like Twitch is in a “safe harbor” when it comes to copyright infringement on their site.

When a user uploads a video with, for example, a Pink Floyd song dubbed over it, it is up to the copyright holder to file a DMCA takedown notice to get the video taken off of Twitch. If Twitch doesn’t comply with this notice and take the allegedly infringing video down, they could be held liable for the infringement and lose their safe harbor status. Therefore, companies like this usually have a process in place to do the takedowns when notified.

If the user who uploaded the video believes that the takedown was in error, they can file a counter-notice with Twitch explaining why. The video should then be reinstated, and the owner of the copyright has 10 days to file a lawsuit alleging infringement.

Proactive measures:

Prior to Twitch’s move, Google instituted a program called ContentID on YouTube. This program allows copyright holders to register their copyrighted works with the service. Google then will scan videos to check for matches with these copyrighted videos. If a match is found, any of four things can happen, depending on what the content owner decides:

  • the video will be taken down;

  • the video’s audio will be muted;

  • advertising monetization will go to the copyright holder instead of the user; or

  • the owner will be able to track stats about the video’s viewership.

Getting a video taken down can result in a copyright strike against that user. After three strikes, the user’s account will be deactivated, unless the strikes expire (after six months).

Now, Twitch is instituting a similar automated system, powered by a company called Audible Magic. Though, instead of taking the entire video down, if copyrighted content is detected by Audible Magic, the 30-minute block in which the content is found will be muted.


The criticism:

There is valid criticism of this move, in my opinion. Legally, Twitch doesn’t have to do this. They can simply rely on the takedown notices coming in. They are providing this as a service to copyright holders in order to make things easier all around. Having a human being respond to all of the notices received can be time consuming and labor-intensive, particularly for a site as big as Twitch or YouTube. However, competitor Hitbox.tv claims that they will look at every claim on a case-by-case basis. That’s all well and good, but when Hitbox scales bigger and bigger, who knows whether or not they will implement a similar system to deal with copyright issues.

Another issue is with false positives and takedowns of videos that are legitimately using the music or audio. I’ve seen plenty of reports, but no hard numbers on this, so it could certainly be a legitimate concern. Legitimately incorrect takedowns need to be figured out and stopped, as this stops the income stream for those who use these videos as their livelihood. There was even a dark day in Dec. 2013 when Google let slip the dogs of war and tons of ContentID takedowns went out, both legitimate and illegitimate.

However, some of the so-called “false positive” reports are from games where in-game music consists of licensed songs (like Grand Theft Auto V). This isn’t really a false positive, in my opinion.

The game maker most likely licensed the song to include within their game, with a limited scope. They probably don’t have a blanket license that covers uses like a purchaser of the game posting a video including the song. As a copyright holder, it is their right to get this unauthorized duplication of their song taken down.

I know that no one likes this and my opinion is unpopular (I am a lawyer, after all…), but that is the way that the law works now. That’s usually my position on things like this: the law was here before game streaming and other new media. Rather than breaking the law and claiming that the existing law shouldn’t apply to you, you either need to work within the law as it exists or push for a change. It may seem daunting to go up against the interests of “big corporations” and other IP holders, but that’s the world we live in. You can’t really fault companies like Twitch and YouTube for attempting to preemptively regulate the Wild West of video streaming in order to make things easier for both them and for copyright holders.

We live in a very interesting time, where there has been a legitimate shift in the entertainment landscape. However, much of the law governing this landscape is pretty cut-and-dry (except, perhaps, Fair Use, which I'll be covering in a new eBook releasing soon). It will be fascinating to see what changes are made going forward to accommodate (or destroy) these new avenues for content creation.

As always, if you need help deciding if what you are going to do is an infringement, or if you need to take down infringing content, feel free to contact me for a free consultation.

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