DMCA Basics

The Digital Millennium Copyright Act (DMCA) is a US law that was passed in 1998. It makes it illegal to reproduce or use content that you do not own or have the appropriate licenses, specifically but not limited to use online. More importantly: the DMCA addresses the rights and obligations of Internet Service Providers and Platforms/Networks the infringing material is found. You can read the full text of the DMCA here.

One of the main purposes of the DMCA is that it protects the platform from the content created by its users under what is called “Safe Harbor” protections. Under these, the platform is not liable for the actions or content of its users. So this is to say that Twitch, Facebook, Twitter, YouTube, TikTok, etc. are not responsible for the content posted by their users.

Media that is covered by the DMCA includes, but is not limited to:

  • Text/Written content
  • Images/Graphics
  • Digital Art
  • Photographs/Pictures
  • Video
  • Music or other audio

The DMCA actually can protect streamers, just like any content creator, by ensuring that others do not use the content you created without your permission. But this also means streamers should not use content (such as music, graphics, characters, etc) that they do not own or have not obtained the proper licenses to use.

The DMCA, ultimately, is there to protect the service provider from the content created on their platforms. I.E. – The DMCA protects Twitch from the content that its users create on the platform so that they are not liable for that content.

The best thing you can do to protect yourself is to get educated on the subject. That’s where we’re here to help.

Check your game’s EULAs. Make sure whatever music or alerts you’re using on stream are properly licensed. Don’t use content if you are unsure.

If you are looking for stream-safe music, please check out our comprehensive live of services and libraries available to you.

Check out our News and Resources for more information.

The DMCA has not changed since its inception in 1998. Many content creators feel that it does not properly represent the nature of media use or the internet — as live streaming was not a consideration during this time.

The DMCA is presently up for debate with Congress through the U.S. Copyright Office. Currently, content creators’ voices are not a part of this conversation. The platforms, the music industry, and their lawyers are making all of the decisions.

Safe Harbor protects the platform, i.e. Twitch, from being liable for DMCA as long as they make a reasonable effort to enforce the DMCA and to remove repeat infringers, ie. bad actors. If Twitch loses its Safe Harbor protections, then Twitch itself becomes liable for secondary infringement.

Safe Harbor was designed to protect platforms and service providers from that liability of the users who produce content within or on their services.

What this means: Streamers are liable for the content they produce for as long as Twitch has Safe Harbor protections.

The DMCA law only refers to take-down notices, not strikes.

A DMCA take-down notice is a formal, written request to take down and remove allegedly infringing content (i.e. content that is not licensed for use by the content creator) and can only be issued by the copyrights holder(s) or someone who have the right to represent the interests of the copyrights holder(s). These take-downs are sent from the copyrights holders to the content creator or the representative platform or OSP (Online Service Provider).

There can by many copyrights holders for one piece of media — especially when music or video is involved. Music is licensed mainly on two main areas: mechanical and composition. Sometimes the copyrights holders are the same people/groups, but not always.

A “DMCA strike” or “Copyright strike” is an infraction or warning sent to the content create by the platform (or OSP) after they receive a DMCA take-down notice from the copyrights holder. The law does not specify anything about strikes — these are platform specific rules and guidelines.

To learn more about the DMCA process and how it works, read this.

There is no real precedent set for how long of a clip is “safe”. There have been lawsuits argued out in court over 8 notes that have been costly and time consuming for both parties involved. 

There is no “safe” amount of time or notes that will prevent a take-down notice from being issued. If you do not have the licenses to use the media in any portion, you are at risk of receiving a DMCA take-down

Read more about alerts here.

Tag: alerts

Games

EULA stands for End-User License Agreement. It is also sometimes called a Software License Agreement (SLA) or Licensed Application End-User Agreement.

The EULA is not the same as the Terms and Conditions, though they are both legally enforceable contracts, and mostly ensure that the developers retain full ownership of their technology and content.

The EULA is the formal legal agreement between the customer (aka the “end user”) and the developer, or the licensor. Typically, in exchange for payment, the customer receives a license to use the content — in our case, the game. It’s sometimes compared to a rental agreement — because technically you do not own the content, but rather have paid for the use of the content. The EULA can often be found within a company’s legal documentation and might be labeled as the “license agreement.”

EULAs contain a lot of information, but in terms of copyright you will want to look for sections on Copyright and Intellectual Property Rights as well as the Authorized and Unauthorized Use. This should hopefully provide information regarding streaming or broadcasting the content.

In-game music is a unique situation because a game may possess the license to include the music in their game, and you may be granted the right to stream that game, but that doesn’t mean you have the right to stream the music within the game. We know, it’s silly. There’s additional licensing the game would require to give you the right to broadcast the in-game music.

In short, the right to stream in-game music is going to vary for each game. This is pretty much out of the hands of Twitch and more in the hands of game devs. Streamers should review the End User License Agreement (EULA) for the game and look for any mention of broadcast or stream.

The safest option, if you’re unsure, would be turning off in-game music. Some games, like Rebel Galaxy, have included in-game options for disabling copyright music (they’ve also secured in-context rights for a lot of their soundtrack, good job!)

Music for games is generally either created in-house specifically for the game (what is called “first-party content”) or licensed to use in the game by a copyrights holder (or “third-party content”). Some publishers might provide information regarding those licenses and the scope of the agreements between third-party content creators regarding what is or isn’t allowed by end-users (you, the streamer). These would be in the game’s EULA.

Just from the colloquial experiences we have seen from streamers, games with in-game radio, such as Fallout or Grand Theft Audio, do not always have licenses for the music outside of private use of playing the game. Most streamers seem to play by the rule of thumb to turn off in-game radios while streaming.

Music

No.

Artists do not always own all of the rights to their music. Just because an artists says you can, doesn’t mean that they actually have the authority to give completely permission to let you actually use their music.

Music is licensed on the mechanical and the composition side, and their can be multiple and different parties for each of these. You need approval from all of them.

Most importantly: Tweets are not legally binding contracts. Even if an artist owns 100% of the rights to their music, they are not legally liable to uphold statements from social media. You need a formally signed contracts with terms of use which include the length of the agreement and processes for revoking such permissions.

Covers are unique in that depending on how you are doing the cover which licenses you will need. If you’re not using the original recording (such as an instrumental version of a song), then you would not need the mechanical licenses, but would still need the composition licenses. On top of this, you will need a license to grant you permission to perform the song, often considered “busking,” and sync licenses for performing them on a stream.

Parody is challenging because for it to actually fall under “fair use,” something only a judge can decide, the parody must actually parody the song itself or the artist. Songs about another topic set to the same tune or music are not protected under fair use for parodies.

Remember, fair use is decided in court on a case-by-case basis. Fair use will not stop you from receiving a DMCA take-down notice. However, if your content does indeed fall under fair use, it will protect you and your counterclaim. (You can read more about counterclaims and the DMCA process here.)

Streaming

Yes! If you are performing your own music — for which you are the sole owner — you can live stream this content to your heart’s content on any platform. If you own all of the rights, you get to make the decisions about your musical content.

If you are performing covers, or playing along with a song (e.g. drumming with a song), you would need to get the proper licenses for each and every track you perform.

Yes. The DMCA covers all forms of digital media, so this includes the video or graphics in your alerts as well. However, at this time, outside of rebroadcasting, we have not yet seen DMCA take-down notices for the visual aspects of alerts. It does not mean it cannot or will not happen, as using this content without proper permissions is still illegal.

Early November 2020, Twitch streamer LadyDevann received a DMCA take-down notice, and a temporary ban from Twitch, for her sub alert’s audio — a remix of Cartoon Network’s Adventure Time “Bacon Pancakes” remixed with Alicia Key’s “New York.” This extremely short audio clip is what resulted in the DMCA take-down notice.

There is no “safe” amount of a song you can play without the chance of repercussions if it is not properly licensed. Just because it is under 30 seconds does not mean it is not liable.

Not without the proper licenses. These include (but are not necessarily limited to) mechanical, synchronization, and public performance licenses. Karaoke is treated similarly to covers in regards to licensing.

If you are using any sort of karaoke software, service, or game, you should check the EULA (End-User License Agreement). If you are unsure — contact them. Reach out to them via email, their websites, or Twitter. If you do not know if the proper licenses are in place, err on the side of caution and do not stream this content.

Twitch specifically addresses karaoke in its Terms of Service, stating that outside of specific karaoke games it is not permitted on the platform.

In September 2020, Twitch made the decision to close their popular karaoke game, Twitch Sings. As of December 1, Twitch will remove any Twitch Sings videos and clips from the platform, and on January 1, 2021 the game will cease to work.

The best answer we can give is: Maybe.

These games often have the music within them licensed specifically for individual private use of the of the music for the game. It does not always cover streaming the game. (Which is true for any in-game music. It may not be licensed for streaming.)

Check the game’s EULA. Hopefully the game has an online page on their website stating what songs are or are not approved to play online in live streams or videos.

Some games, like Beat Saber or Synth Riders have user curated playlists and levels. These may or may not be licensed for streams.

That depends: Do you have the licenses for each track you will be using?

The licenses that you need are similar to what you would need just to play music in the background. They are the mechanical, master use, and sync licenses. So you could potentially use the catalogs from licensed music providers (such as Monstercat, Bass Rebels, ArgoFox, Pretzel, or StreamBeats) assuming that it does not violate the Terms of Service for that company.

Twitch’s Terms of Service specifically state that Live DJ sets are not permitted unless all content is properly licensed.

VOD mutes are not the same as a DMCA take-down notice.

Twitch hired a third party company, Audible Magic, to handle automatic content recognition. Mutes come from Audible Magic. Not all music content is registered in Audible Magic — it is up to the copyrights holders to register and maintain their permissions within Audible Magic. Because of this, there are tracks that are properly licensed for use on Twitch which will still mute, and there are tracks that are not licensed for use on Twitch that will not mute. Yes, this is problematic.

DMCA take-down notices can only come from the copyrights holders. Audible Magic and Twitch cannot issue DMCA take-downs.

This is not to say that something that was muted will not receive a DMCA take-down notice. As has been noted by content creators: Twitch still stores un-muted and even deleted VODs on their servers which are searchable by content ID systems. Even if it is muted or deleted, you still could receive a DMCA take-down notice.

Twitch uses a tool called Audible Magic that automatically scans your VODs for copyright music and mutes it. However, the tool is not 100% accurate. Copyright music can (and often does) sneak through, leaving you vulnerable to DMCAs.

When a VOD or clip is deleted from Twitch, it can take time for the content to be fully removed from the publicly available site. Twitch has stated in an official thread on Twitter that they cannot verify if third-party tools have fully removed content from their site and that content deleted using their mass deletion tool should not be subject to DMCA strikes.

However, users have found ways to access deleted VODs and some third-party sites are archiving content from top streamers on Twitch, both content deleted by the streamer and content from banned streamers. Twitch has not officially addressed concerns about publicly discoverable archives that may contain content that was deleted from the Twitch site.

Tags: Twitch, VODs

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