On June 22, ten well-known Twitch streamers had their Twitch accounts suspended after they received DMCA violations for playing copyrighted music during their streams. This is not the first time streamers have had their accounts suspended or terminated for this type of violation, and unfortunately, it likely won’t be the last. Streamers often play music during their stream without a license to so do. While the streamer may be unaware that this amounts to copyright infringement, service providers must take action against the perpetrator once they are alerted of this unlawful activity. Accordingly, streamers should be aware that incorporating music into their streams needs to be done so appropriately, in order to avoid potential account suspensions or legal repercussions. .
 
What is the DMCA?
The Digital Millennium Copyright Act (“DMCA”) is a United States copyright law enacted in 1998 to protect the interests of both copyright holders and online services providers, like Twitch and YouTube. The Act aims to provide copyright holders with an easier way to protect their work from being used in an unauthorized way online, while also affording service providers with protection from liability that may arise as a result of their users’ unlawful actions. Under the DMCA’s “Safe Harbor” provision, service providers are protected from copyright infringement liability as long as they comply with certain requirements. As long as these requirements are met, the Safe Harbor protection shields service providers from being held directly liable for any copyright infringement committed by their users.
 
How does it work?
The DMCA’s Safe Harbor provision states that a service provider cannot be held liable for copyright infringement if it:

1. does not have actual knowledge of the infringement;
2. is not aware of facts or circumstances from which infringing activity is apparent; and 
3. upon obtaining such knowledge or awareness, acts expeditiously to remove or disable access to the infringing material. [17 U.S.C. 512(c)(1)]

 
This means that service providers will not be liable for copyright claims on content that users upload unless they know about the infringing activity and fail to take action by either disabling or removing the content. Since it would be difficult for service providers to constantly monitor potentially infringing content uploaded by their millions of users, service providers usually state the procedure for DMCA Takedown claim on their sites. Copyright holders must include the following information in their DMCA Takedown claim to service providers in order to correctly file a claim in accordance with the law:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; 
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; 
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
4. Complaining party’s contact information; 
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and  
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on. [17 U.S.C. 512(c)(3)]

 
Once this claim is received, the service provider must immediately disable or takedown the content with the infringing activity. If the service provider does not immediately disable or remove the content after receiving the DMCA Takedown Notice, it may lose its Safe Harbor protection and be liable for ALL infringing content on the site.
 
Why is the DMCA important to streamers?
DMCA takedowns are important to streamers because streams usually incorporate a number of elements that are subject to copyright law (ex. gameplay, music, commentary, etc.). Fortunately, most developers allow their games to be streamed by providing a license to do so. However, playing music during a stream is a particularly sticky issue. If a streamer were to play music on their stream without a license to use that music, the streamer is infringing on the artist’s copyright. Streamers must be aware that playing most music without the proper license can have lasting consequences.
 
What are the consequences of DMCA Takedown Notices?
Most of the time, service providers are responsible for doling out punishments to users who receive DMCA Takedown Notices. Each service provider has a set of terms that apply to their users when dealing with these notices, but oftentimes, services providers will provide users with warnings or strikes against their account for each notice they receive. If a user receives multiple DMCA notices, a service provider will typically suspended, or even terminate, the user’s account. This is a steep consequence for users who have worked long and hard to obtain their following. DMCA violators can also be subject to severe civil and criminal penalties.
 
How can I prevent this from happening to me?
In order to avoid any DMCA Takedown Notices, content creators should be aware of any copyrighted material that they may be incorporating into their stream. Streamers that want to play music during their stream should utilize a royalty free music service or otherwise obtain a license for any song they’d like to play. There are a number of inexpensive services available that provide users with licenses for a library of songs.
 
Conclusion
Streamers need to be aware that DMCA violations are serious and can have a lasting effect on their business and brand. In order to avoid any problems, streamers should be conscious of their potential exposure to copyright infringement in their stream, especially in relation to the music they choose to play during their stream. Without the proper license to play the music, streamers are subject to DMCA Takedown Notices, which can result in the termination of their account, and potentially subject them to more serious penalties. If you are streamer or influencer and you have any questions regarding this topic, please feel free to contact us.

(Our intern, Mark Hamilton, Jr., assisted in the creation of this blog post. Mark is a rising 3L at Marquette University Law School)

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 more so 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 to an internet service provider 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.