But tragically, Twitch has aimed to allow music on its service, while not fully licensing it, leaving its users in the lurch. Twitch recently wrote a lengthy blog post admitting some of its missteps around the use of music on its platform and advised its streamers who are paying the price. Notably, the post did not address the songwriters who continue to go uncompensated by the service due to its disregard for the value of their work. Twitch also failed to explain how a company owned by the likes of Amazon could neglect the need to properly license the music that it's been using for years, nor did Twitch give any real assurance that it will remedy this failure.
Twitch's blog was targeted towards streamers who recently received numerous infringement notices and may be at risk of having their channel banned from the platform. These notices were sent because of the Digital Millennium Copyright Act (DMCA) – a law passed in 1998 to address unlicensed copyrighted works being shared online. In short, the DMCA demands that if someone shares unlicensed music on a digital service like YouTube or Twitch, the copyright owner of the unlicensed music can send a 'takedown' notice to the service, which then must remove the infringing music and notify the user. Under the DMCA, a digital service will not be held liable for its users' infringement as long as it implements a reasonable "repeat infringer policy." In essence, the platform must stop providing service to those who repeatedly violate copyright law. This is an outdated and imperfect system, but it often is the only practical recourse, short of a lawsuit, that music creators have to stop their work from being stolen.
In advising users how to avoid receiving DMCA notices in the future, Twitch failed to express that it could solve the entire issue for its streamers by securing the appropriate licenses, and offered some astounding admissions:
First, Twitch feigns surprise. The DMCA notices it has received could not possibly have come as a shock – Twitch has refused to license music when it knew it needed to do so for some time. Amazon, which purchased Twitch for $970 million in 2014, knows exactly how to license music, as it has done for its Amazon Prime and Amazon Music services. To claim ignorance is laughable, though that is exactly what Amazon's CEO recently did before Congress. When asked in a committee hearing whether Twitch – one of the largest music livestreaming platforms in the world – licensed music, Jeff Bezos had no idea. This gives an estimation of how much paying music creators has been prioritized.
Second, Twitch admits to not complying with the DMCA. While attempting to explain away how it is dealing with the recent takedown notices, Twitch openly admits it will not adhere to its own repeat infringer policy as required by law. This admission is phrased as a concession to its streamers, but in fact, it is yet another violation and end run around copyright owners' rights.
Third, Twitch has the audacity to imply licensing music for its platform is a novel or difficult exercise. Twitch—and its parent company—cannot seriously argue that their profit margins do not leave room to fairly compensate creators and songwriters for the use of their music. The blog post attempts to convince Twitch streamers that not making a deal with artists and songwriters to pay for music used on the platform is actually a way for Twitch to save its streamers money. This circular logic is insulting to all creators – including those on Twitch – as is the service's assertion that it shouldn't have to fully license music because it is "unique." Other sites, including Facebook, Instagram, YouTube, Snapchat, and TikTok, to name a few, have figured out how to compensate songwriters for the use of music on their platforms, even though not all of their user-generated content contains music.
There are several licensing roadmaps for Twitch to follow. Instead, Twitch has gone to incredible lengths to avoid properly licensing music for its streamers. For example, Twitch has created "Soundtrack" – a purported licensed library of independent music for streamers to use in their streams. Soundtrack appears to use technology designed by Twitch to avoid the need for synch licenses - by removing music from certain copies of a livestream. This tool does not fix Twitch's problem; rather, it exacerbates the confusion around how streamers can use music in the content they create. Adding to the confusion, Twitch is quick to claim it pays for performance rights through the major performance rights organizations. But, performance is only one of several rights that must be licensed when using others' music, as Twitch well knows.
Fourth, Twitch fails to assure its streamers that it will provide the properly licensed music they so clearly want to use. It is telling that while Twitch goes to great lengths to explain that it is "actively speaking with the major record labels about potential approaches to additional licenses that would be appropriate for the Twitch service," it never mentions music publishers or securing rights to the songwriters' work they represent. We have seen this before. The assumption that new or evolving services shouldn't have to pay for music, or comply with the DMCA, has not worked in the past, and it won't work now.
Music publishers and songwriters want to partner with innovative businesses that encourage new and creative ways to listen to, share, and discover music – particularly in a pandemic where new revenue streams are greatly needed, and the stakes are increasingly high. As recently reported by Variety, "Twitch delivered some 5 billion hours of livestreamed content in the second quarter of 2020, a dramatic 83% year-over-year surge." With the pandemic ongoing, this will only continue to grow.
Instead of writing lengthy blog posts about how Twitch streamers can try to avoid getting DMCA notices and investing in tools to delete or obscure the use of music in Twitch creators' content, Twitch should make the appropriate agreements to allow users to flourish. Refusing to fully license music is unfair to music creators, and also puts the users who have chronicled their work on Twitch at risk. As The Verge recently reported, the "latest fight over infringing music on Twitch has left streamers stranded on the battlefield." Streamers and songwriters deserve better.
Clearly Twitch has advanced far beyond a gaming platform, and music is critical to its growth. The platform claims that as "a company that is built around a community of people who create content, we take allegations of copyright infringement seriously." Well, this is not a game, and Twitch will not win in the long run unless it respects and pays songwriters.
David Israelite is the president & CEO of the National Music Publishers' Association (NMPA). The NMPA is the trade association representing American music publishers and their songwriting partners.