(This post was created by Mark Hamilton, Jr., a rising 3L at Marquette University Law School and intern at Quiles Law)

The State of Nevada has been working on legislation relating to esports for a significant amount of time. Since its inception in March 2021, the purpose of Nevada State Bill 165 (“Esports Bill”) was to help increase economic activity in the State through the draw of esports events. Nevada wants to be one of the first locations mentioned when it comes to hosting an esports competition. But, what does being first entail? Initially, this proposed Esports Bill was to be the first of its kind, creating a regulatory body for esports events in the State. What Nevada overlooked, though, is the reluctance of developers and other organizations to cede power and control to an independent commission.
 
Ultimately, the Esports Bill has been passed and signed by Governor Steve Sisolak. However, the bill is not what it once was. At the strong urging (and threats) of esports game developers, there have been major changes to the bill. In this blog post, I will discuss the Esports Bill, its original intentions, and its final form.
 
Nevada Esports Bill: Original Plan
Since first drafted in March 2021, the Esports Bill intended to create an independent regulatory commission. This commission was to resemble the Nevada Athletic Commission, which is responsible for the governance of mixed martial arts in the state.
 
The commission was going to be tasked with creating regulations to govern esports competitions. Some of the areas that would be regulated included integrity of competition, testing for controlled substances, qualifications for hosting and participating in tournaments, and approval of venues. The Esports Bill also would have given the commission the ability to create enforcement processes/mechanisms for the regulations. In other words, the State of Nevada could have made a violation of the commission’s rules a misdemeanor.
 
Nevada Esports Bill: The Changes
The major opponent to the original plan of the Esports Bill was the Entertainment Software Association (“ESA”). The ESA is an association that serves as a voice for the video game industry and focuses on building the “best future” for the industry overall. ESA believed that the proposed bill and its increased regulation on esports events would actually harm the growth of the industry. In fact, the ESA believed that if the Esports Bill were to be passed in its original form, the likelihood of Nevada being the leader in esports events, as it desired, would be severely diminished. However, ESA was not opposed to Nevada growing and helping foster the development of esports overall, but simply resistant to increased regulation.
 
Responding to such concern, Senator Ben Kieckhefer (the sponsoring senator) proposed amendments that made significant alterations to the Esports Bill. The amendments created an Esports Technical Advisory Committee with the members being appointed by the Gaming Control Board (Gaming in the gambling sense of the word). The necessity of this change was vital to ESA, as it feared an entirely independent regulatory body. Considering ESA’s concerns, Nevada feared that publishers and tournament organizers might decide to avoid the State of Nevada altogether and host events elsewhere if the independent regulatory body were to remain in the Esports Bill.

The Nevada Esports Bill as Signed into Law
The bill itself is straightforward and short. The Gaming Control Board is to appoint members to the Esports Technical Advisory Committee that consists of industry professionals. The professionals could include anyone spanning from game publishers to hosts to broadcasters and even participants. Once the Committee is developed, they will be tasked with providing recommendations to the Board on how to safeguard the integrity of Esports, especially when wagers are placed at such competitions. The bill goes on to state that the Board may adopt regulations as necessary to carry out and further the recommendations of the Committee.
 
While the bill is not lengthy by any means, it represents the State’s furtherance of its efforts to attract esports to Nevada, and in concept, is something other States will likely emulate.
 
Conclusion
The Esports Bill which was signed is vastly different from how it was initially conceived, and frankly, removes much of the teeth included in the initial legislation. While the creation of an advisory group is welcomed, the removal of any independent authority from the group makes its efforts subject to the approval of the Gaming Control Board. Inherently, the Gaming Control Board is concerned with gambling, betting, and integrity endeavors, and while esports betting is a lucrative piece of the industry, there’s so much more to esports than just betting. Nevada had an opportunity to raise the playing field with its legislation, and instead punted. Here’s to hoping that similar legislation by other States encourages Nevada, and others, to enact regulations with teeth as it pertains to esports.

(This post was created by Mark Hamilton, Jr., a rising 3L at Marquette University Law School and intern at Quiles Law)

With Twitch experiencing yet another wave of DMCA takedowns from the music industry, IRL streamers are particularly vulnerable if they are not careful. As an IRL streamer, it is easy to forget that the sounds around you, including music and other broadcasts, are not only being heard but also recorded and saved by your stream. This issue is not necessarily a new one, as Twitch has experienced multiple waves of DMCA claims in the past few years, though it is a topic worth reminding about.
 
IRL streamers must be aware of and understand their surroundings, even moreso than a streamer playing a simple First-Person Shooter game. As most IRL streams are in an environment in which is not controlled by the streamer, whether it be grocery shopping, retail shopping, or in a restaurant, IRL streamers need to be aware of copyrighted content around them so as to help avoid DMCA claims. This blog post discusses some ways that IRL streamers can help to avoid a DMCA takedown and ultimately ease some concern about IRL streamers being helpless to DMCA takedowns due to their environment.
 
What is a DMCA takedown?
A DMCA takedown is a notice sent because a copyright owner believes someone has infringed upon their content and wants the infringement removed. Essentially, the copyright owner would submit a DMCA takedown notice with Twitch stating that a specific streamer is utilizing their content without permission and that they want the stream and VOD removed. Twitch would then, following its procedures, take down the content that was referenced to by the copyright owner. At this point, the streamer would be told by Twitch why their stream was banned or VODs removed. The streamer could then file a counter-notice, which basically states that the stream and content did not violate any copyright law and that the material should not have been removed, effectively forcing the alleged copyright owner to pursue them in court.
 
However, if a copyright owner files a DMCA takedown and gets the streamer’s content removed without actually checking and making sure that there was a violation, there are consequences. Knowingly submitting a false DMCA takedown makes the alleged rights-holder liable for damages, which the aggrieved party would be entitled to.
 
How are IRL streams subject to DMCA takedowns?
IRL streams face two primary issues in avoiding DMCA takedowns. First, as IRL streams are predominantly in public settings, there is concern that the streamer cannot determine what kind of content is and is not being played in their environment. This in and of itself is the key DMCA takedown risk factor that typical streamers do not have. Second, as common with all streamers, there is the issue of broadcasted copyright content, like background music in a store, being recorded on the streamer’s VODs. Because a VOD is an archived stream, it not only contains all of the audio that was recorded and live-streamed but also is available for any investigating parties/technologies to review and potentially flag for DMCA violations.
 
Not all DMCA takedowns are appropriate
Recently, some IRL streamers have been using their streams as a talk show to  discuss ongoing sporting events. Such was the case with CDNThe3rd (“Ceez”) when his stream was recently banned. During the Logan Paul and Floyd Mayweather fight, Ceez was using his stream as a platform to discuss the fight in what he refers to as “#ViewageFightNights.” At no point did Ceez show the PPV event or play any of the sounds from the broadcast. Instead, Ceez used his own graphics and placed a round counter and timer at the bottom with information about how to legally purchase the fight. Ceez, who has hosted these IRL fight talk shows many times, was then banned by Twitch after only three hours. Showtime, the broadcaster and rights holder of the Paul fight, issued a DMCA strike against Ceez and his stream. However, Showtime did not adequately assess the situation as their content was never shown or played by Ceez. As of now, Ceez has gained his channel back and is no longer banned. But, the mere fact that Ceez had his banned lifted does not make the DMCA takedown by Showtime proper. If Ceez chose to, he may be able to pursue Showtime for damages as a result of the false DMCA takedown.
 
How to avoid DMCA takedowns as an IRL streamer?

1. Avoid areas that might play music out loud for a significant portion of the stream (i.e., grocery stores, retail stores, restaurants, etc.)
2. Stick to locations in which the background music can be controlled (i.e., your backyard, hiking trails, home gyms, etc.)
3. If there is not a controlled location available, create your own environment (if possible, create an atmosphere around your setup that resembles the desired setting you desire)
4. Disable VODs and archiving of streams and individually save each stream onto your hard drive instead
5. Ensure that the audio and video of any copyrighted broadcast, such as sports, is not playing through on stream or being heard
6. If you must enter a specific store or other location which would likely play music, consider muting your stream while in that location until you can determine whether music is being played
7. Plan and scout any proposed streaming locations to assess the risk of copyrighted content being seen or heard on your stream 

Admittedly, the best advice to avoid any sort of DMCA takedown as an IRL streamer is to avoid copyrighted material overall. While this is not easy, it is the only surefire way to ensure that your content will not be flagged or taken down. IRL streaming presents a unique set of circumstances, and often it might feel as if you are more limited than you might be while streaming a game. Unfortunately, because most environments in IRL streams are not established by the streamer themselves, the streamer may be more exposed to potential DMCA takedowns.
 
Conclusion
Legally speaking, IRL streamers should be aware of what they are walking into. In order to help avoid DMCA takedowns, IRL streamers need to be able to recognize potential copyrighted content issues that the setting of their stream and its background may present. Making legally appropriate decisions will determine whether or not the stream or its VOD gets flagged or taken down. Unfortunately, these are not easy assessments to make and may require further planning in advance of IRL streams. While this removes some of the randomness to the content, which is otherwise appreciated in IRL streams, this will also give you the time to think through the risks of copyrighted content at each planned location or give you the opportunity to speak with your attorney to evaluate potential issues.
 
IRL streaming has never been easy, and the discussed copyright issues compound that difficulty. If you require any assistance with assessing the legal risks of your planned IRL streams, we’re happy to help.