Let’s take a minute to talk about music for live streaming.

UPDATE: This post was updated as of 7:30 pm PT — September 10th, 2017 to reflect the Extension Developer updating their claim with a disclaimer, details at the bottom of this post.

TL;DR

Using SoundCloud or extensions that use SoundCloud for music during your live streams puts you and your channel at risk of muting, takedowns, and lawsuits. Even though some developers tell you it’s okay.


Hi everyone, my name is Noah Downs, and I’m the legal representation for Pretzel Rocks. I am a licensed attorney.

This is the claim we will examine

With the recent introduction of Twitch Extensions, other companies are claiming that their extensions offer “royalty-free music that is suitable for streams”.

This claim is incredibly dangerous and misleading and will ultimately leave you, the content creator, holding the bag for copyright violations, muted videos and content ID strikes.

Let’s dive into why that is.

Music Licensing Basics

When it comes to music for Live Streaming there are a couple of concepts you need to be aware of.

Sync License

A sync license, simply put, is the right to take a piece of music and add it to video content. It’s the same license required to use a song in a commercial, movie, tv show, as well as a livestream or YouTube video.

Anytime you, the content creator, are “syncing” music to video content you must have a sync license from the copyright holder of the music.

Cover

A cover of a song is a completely original recording of an existing song that has been released. A great example of this is Peter Hollens, everything in his cover songs are brand new original recordings typically of his own voice.

Quite literally, Peter did not download the original song’s MP3 file and cut portions of it to use in his own song. If any of the original song’s samples were used in the new song, the result is called a Remix.

Because Peter doesn’t own the original songs, he still has to pay royalties to the original song’s creator. This is what’s called a mechanical license, and there are services like Loudr.fm which allow you to legally obtain cover licenses. Typically a mechanical license requires you to pay the original song creator 9.1¢ per download of the track.

Loudr.fm also has a fantastic FAQ if you really want to dig into how to license a cover.

Remix

A remix is a modified version of an existing recording. If someone downloads a copy of Don’t Let Me Down, ft. Daya by The Chainsmokers and then makes some changes to it on their computer, the result is not a cover, but a remix.

Remix licensing has to be handled directly with the copyright holder of a track. That means for a remix of Don’t Let Me Down, ft. Daya to be legal, it must have been negotiated directly with The Chainsmokers or their management.

Bootleg

A bootleg is when someone creates either a cover or a remix without the authorized permission of the copyright holder. They are illegal, and infringe on the rights of the original copyright holder.

So how can these developers claim the music is “royalty-free and suitable for streams”?

When someone uploads content to SoundCloud, they agree that they own or have licensed all of the necessary copyrights for the song. In the case of a bootleg, the uploader doesn’t have these rights.

SoundCloud then grants third-parties, in this case Extension Developers a “royalty-free” license, meaning Extension Developers do not have to pay royalties to SoundCloud to use the music. This is where they get the “royalty-free” part of their claim.

As for “suitable for streams” — there really is no defense for this. If you play a Chainsmokers bootleg on your stream you can be muted, receive copyright strikes, and lawsuits — and there is nothing you, the content creator, can do about it. You don’t actually have a valid sync license to use that song in your broadcast.

In the Terms of Service with this Extension Developer you agree to indemnify (fancy word that means you won’t hold them accountable legally) them from any copyright violations you receive using their system.

Indemnification of Extension Developer

In turn, SoundCloud’s Terms of Service indemnifies SoundCloud from what the Extension Developers do.

Indemnification of SoundCloud

Then, SoundCloud’s agreement with the uploader indemnifies SoundCloud from any legal action because the uploader has claimed they had all necessary rights to upload the content in the first place.

Uploader agrees they won’t upload any infringing material

Questions & Answers

So if I play music from SoundCloud, I’m taking the risk that my channel can still be muted, and receive copyright strikes?

Yup.

Even though I used a music player from this Twitch Extension where I was told it was “royalty-free and suitable for streams”?

Correct.

Can I go after the Twitch Extension developer, SoundCloud, or anyone else if my channel gets in trouble?

You can try, but in the Terms of Service you agreed you wouldn’t sue them, and will potentially pay their legal fees if you did.

Why doesn’t the copyright holder go after the uploader for uploading a bootleg song to SoundCloud?

They can. That doesn’t mean you’re off the hook for playing the track when you didn’t have license to do so, they can still go after you too.

The Soundcloud API allows the developers to filter by license, so that makes it safe right?

No. As a content creator you are still legally liable. You are assuming all of the risk.

In fact, according to SoundCloud’s Terms of Service you acknowledge that SoundCloud doesn’t even review their content.

Snippet from SoundCloud Terms of Service

I don’t make money on my stream, that means this doesn’t apply to me?

No. The law still applies if you’re making money or not.

I see bigger streamers all the time playing music they don’t have the rights to.

Yup, but that doesn’t make it legal. This is a rampant problem, that will end up in a large lawsuit someday.

Why is Pretzel Rocks okay?

Pretzel Rocks has negotiated and signed contracts directly with every single artist that is in the Pretzel Rocks catalog. The artists have granted Pretzel the ability to grant sync licenses to content creators on their behalf for use on Twitch, Mixer and YouTube.

These Extension Developers are implying they’re doing the same due diligence, but there is a lot of evidence that they aren’t.

What about the Twitch Music Library?

All tracks listed in the Twitch Music Library were originally cleared for use when the Twitch Music Library was created. However, to the best of our knowledge the Twitch Music Library is not actively maintained, and it’s unclear whether the licenses are still valid. This is why Pretzel’s catalog doesn’t include the Twitch Music Library.

Also the Twitch Music Library directs you to use Spotify to play the music… this goes against Spotify’s Terms of Service.

What about using Spotify, Apple Music, Pandora, etc.?

Technically, using Spotify, Pandora, and YouTube is against the Terms of Service, guidelines, and policies of those platforms. The rights granted are for personal, non-commercial use… and Spotify goes so far as to specifically prohibit broadcasting:

No ambiguity here.

In conclusion

We don’t want to go to war with other developers in the industry, we want to work together to solve problems for content creators. Pretzel is currently working on external API’s so developers would have access to an actual stream safe catalog of music.

However, we couldn’t sit idly by while someone was making claims that spreads mis-information throughout the industry which is potentially harmful to content creators.

== UPDATE ==

The Extension Developer has added a disclaimer and updated their claim. Thank you for that! We also are now working together to integrate Pretzel’s catalog into their system as an additional option for content creators.

Updated claim, including disclaimer.

Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Pretzel Tech or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction. This post is not intended to create an attorney-client relationship in any way.