Like YouTube, TikTok, Instagram and other platforms that host user-uploaded content before it, Twitch has been operating under the 1998 Digital Millennium Copyright Act’s (DMCA) “safe harbor” provision, which shields content-hosting platforms from liability for copyright violations by users, so long as they promptly respond to takedown requests from rights holders. The way the process works, Twitch itself doesn’t issue takedowns -- rather, rights holders (mostly record labels and publishers) notify the platform of infringement, after which Twitch is legally obligated to remove the allegedly infringing content and notify the user who posted it. (Users who believe their content has been flagged by mistake or misidentification have the option to contest this by submitting a counter-notification.)
Clearing music for livestreaming platforms is a thorny process, and there are still disagreements about exactly what licenses are required. Every livestream requires a license to use a recording (usually from a label), as well as a public performance license from a collecting society like ASCAP or BMI. Any video that’s available on-demand also requires a synch license and a mechanical license -- the latter of which may also be required for a live performance. A DJ set that involves remixes or samples also requires licenses to sample or interpolate songs.
Technically, anyone who created video for Twitch always needed these licenses -- but it was never a big issue before now.
"This is the first time we have received mass DMCA claims against clips," the Twitch Support team said in a string of tweets on June 7. "We understand this has been stressful for affected creators and are working on solutions, including examining how we can give you more control over your clips."
Why now? As artists turn to livestream performances as an alternative to touring in the coronavirus era, Twitch is becoming increasingly relevant to the music industry, with artists like Diplo and ZEDD launching new channels and festivals like Willie Nelson’s signature Luck Reunion going virtual with livestreams on the platform. Back in March, artists like John Legend and Charlie Puth performed as part of Twitch's 12-hour coronavirus relief fundraiser, Stream Aid 2020. Hours watched on Twitch grew by more than 50% during the first four weeks of social distancing, compared with the four weeks prior, according to a company spokesperson. (Twitch declined to comment further for this piece.)
At the start of the pandemic, the music industry largely turned a blind eye to music licensing issues on livestreams, since livestreaming was not yet a big business, and labels and publishers were lenient towards artists who were clearly still adjusting to making a living during a crisis. One explanation for the sudden attention to Twitch is that three months in, that attitude has changed.
“Our job is to protect artists on all digital platforms, and when we see a platform start to emerge as an important player, our job is to establish their rights as quickly as possible,” RIAA chairman/CEO Mitch Glazier tells Billboard. “During COVID-19, more and more artists have had to turn to livestreaming and innovate. They want to and need to reach their fans. And this could be a wonderful platform. But it makes it hard for artists to be able to do that, for the benefit of the whole ecosystem, if the company is not going to compensate them for their work.”
National Music Publishers' Association (NMPA) president and CEO David Israelite said by email that publishers also have an eye on the platform. “We are concerned about unlicensed songs being used on Twitch,” he said, “and are exploring all options to protect the songwriters and music publishers who we represent.”
Users are spending more time than ever on music-centered Twitch videos. But those figures still pale in comparison to the platform’s gaming-centric videos. According to a recent report by Twitch livestream software developer StreamElements and analytics company Arsenal, the “music and performing arts” category on Twitch saw 17 million hours watched in April -- a massive 385% jump year-over-year, but only 1% of total viewing hours on Twitch that month.
Still, given that jump, it’s unsurprising the music industry is pouncing on Twitch now to establish a way to collect its due. Similar stories played out with platforms like YouTube, which signed multi-year licensing deals with the three major music groups in 2017, and more recently, TikTok, from which the music industry has demanded better licensing deals as the platform has become wildly popular over the past several years.
Ted Kalo, executive director of artist advocacy organization Artist Rights Alliance, hopes the surge in Twitch takedown requests serves as a "wake-up call" for Twitch in this respect.
"With touring shut down, artists need all available income streams more than ever, and big tech companies depriving artists of royalties owed to them has come into greater focus," he says. “A technologically-savvy company like Amazon could solve this problem for artists and Twitch users quickly: by licensing music and providing Twitch creators tools to avoid unlicensed uses of music.”
Currently, Twitch does not have licensing deals of any kind with Universal Music Group, Sony Music or Warner Music Group, or any of their publishing entities. Billboard understands Twitch is in talks with global performance rights organizations -- which collect and distribute public performance royalties -- regarding non-interactive audio-visual licenses, and already has deals with ASCAP, SESAC and BMI. Additionally, a source tells Billboard that Twitch has licensing deals in place with close to 200 publishers for the rights to include their music its karaoke-style app Twitch Sings, though the deals do not apply to Twitch itself.
The music industry has long rallied against the DMCA, arguing that by putting the onus on rights holders to police piracy, the law makes it difficult to license a work for its market value. And this time, the sudden burst in takedown notices arrives against the backdrop of a current debate in Congress over whether or not the DMCA should be updated, where The Eagles’ Don Henley recently testified that “the DMCA is a relic of a MySpace era in a TikTok world.” The RIAA is at the center of that debate. All of this is happening at a time when the new European Union Copyright Directive gives platforms more responsibility to monitor infringement, although it has yet to take effect.
“There’s going to be additional folks coming forward to give testimony, there’s going to be a lot of back and forth with lawmakers, and this is an ongoing discussion,” comments music writer, DJ and producer Dani Deahl. “It makes sense for entities like the RIAA, which represents the majors, to start building their case with largely untouched platforms like Twitch.”
Deahl adds that the lack of copyright savvy in the rapidly-growing livestreaming community only added to this week’s headline-grabbing social media storm. “I see a lot of Twitch creators saying that Twitch is not advocating on behalf of them as creators, and there really has to be a bridge built to say, musicians are also creators,” she says. “These people spent a lot of time and effort to make the music that you’re using. We’re all in a creative community together. So how can we create a system that benefits all?”
Twitch says it is working on solutions, starting with expanding the use of content identification service Audible Magic to automatically identify and delete existing clips which may contain copyrighted music without penalty, and adding the ability for users to sift through and delete clips more easily. While Twitch has long used Audible Magic to police on-demand videos on the platform, this is the first time it has applied the technology to short clips highlighting old livestream videos that are saved on the streamer’s page.
And of course, Twitch isn't the only platform which has seen a rise in takedown requests as artists stuck at home turn to livestream performances. Instagram felt the need to release new guidelines for including music in videos and livestreams, and even added a notification system to alert users whose streams are in danger of being taken down due to copyright violations.
But for now, if Twitch wants to build out a music strategy, the only real solution is licensing. Until the company can secure strong licensing deals, for its users frustrated over takedown notices, this is only the beginning.
“COVID-19 has shined a light on livestreaming, and if everybody comes to the table and they’re accountable and they create a great consumer experience, it can be great for everybody,” Glazier adds. “Our job is to make sure that [rights holders] have those opportunities to get compensated. We’re going to ferociously do that.”