Hi all, MyLawyerFriend aka Noah Downs here! I am a licensed attorney with a focus on Intellectual Property and Copyright law.
There is a lot of confusion and misinformation floating around the internet regarding DMCA, and what it means for content creators. So I wanted to take a few minutes to answer some of the common questions I see out there about the DMCA.
First, let’s get some terms out of the way.
Infringement is when someone uses someone else’s work without proper licenses.
For example, if you play Taylor Swift on your Twitch Stream you are infringing on the rights of Taylor Swift and her record label. Copyright infringement is illegal and you can be held liable.
Liable simply means that a person or company is legally responsible for something. If you are liable, you are at risk of being sued or fined.
A copyright holder is the person who holds the rights to a specific piece of content. This content can be a piece of music, a video game, a book, a movie, etc.
Copyright holders may also authorize others to “act on behalf of the owner of the exclusive right”. For example, Pretzel Rocks has the ability to issue sync licenses on behalf of our copyright holders.
A sync license is the right to synchronize music to images. By law, it is the license you MUST have to use music in your livestream or video content. I want to repeat that one more time…
Anytime you add music to a video, you MUST have a sync license.
If you do not have a sync license for the music you are playing, you are infringing the rights of the copyright holder, period.
In this case, a service provider is a company that allows users to upload content to their website. For example: YouTube, Twitch, Mixer, SoundCloud, Facebook, Vimeo, and even Pretzel.
DMCA stands for “Digital Millennium Copyright Act” and it’s a law that was passed by US Congress and signed into law in October 1998. The DMCA is basically a compromise between copyright holders and service providers. It allows copyright holders a mechanism to protect their work, but protects the service providers from being held liable for infringing content uploaded by their users.
DMCA Claim / Takedown
A DMCA claim (or takedown) is when a copyright holder notifies a service provider that they have infringing material on their site/service. It is also known as a “Notification of Infringement”. For example, Twitch has these guidelines for submitting DMCA claims. Essentially it boils down to send in writing who you are, who is infringing your rights, how they’re doing it, and swear under penalty of perjury that you are telling the truth.
Perjury is essentially lying under oath. When you submit a DMCA claim (or counter claim) under penalty of perjury, you are stating that you’re potentially willing to be fined or go to jail if you are lying.
Safe Harbor is the clause in the DMCA that allows service providers to protect themselves from their users uploading content that is infringing the rights of a copyright holder. One of the conditions of DMCA Safe Harbor is that the service provider MUST immediately remove content when they receive a DMCA claim.
If the service provider does NOT immediately remove content when they receive a DMCA claim, they can lose their Safe Harbor protection. At this point, the service provider would be liable for ALL infringing content on their site.
So… if Twitch receives a DMCA for music in a stream, and they do not immediately remove the infringing content, Twitch will lose their Safe Harbor protection and can now be held liable for ALL infringing content on Twitch.
So what happened?
A Twitch Broadcaster allegedly had their Twitch account permanently banned for receiving too many DMCA claims. This prompted Hassan (who is a Partnerships Account Manager at Twitch) to tweet out the following:
What Hassan should have said is:
If you don’t have a valid sync license (aka permission from the artist), don’t play it. You risk being DMCA’ed. NOT NEW
What then followed was a huge thread of Partner, Affiliate and other broadcasters who were clearly confused and spreading misinformation on how DMCA works, so I’d like to answer a bunch of the questions that were asked on this thread, as well as other questions I have received while working with Twitch Streamers and other Content Creators.
Questions & Answers
Who can send a DMCA claim?
Only someone who is “authorized to act on behalf of the owner of the exclusive right being infringed”… which is a long way of saying only the copyright holder or someone they have delegated to manage copyright on their behalf.
So… using the Taylor Swift example again, if you play Taylor Swift music without a sync license, you are infringing on her copyright. However, the only person that would be able to issue a DMCA claim would be Taylor Swift’s label or a company that Taylor Swift’s label has granted the ability to enforce their copyrights.
If I see someone infringing on someone else’s copyright. Can I issue a takedown notice?
Nope. Only people who are authorized by the copyright holder can rightfully issue a DMCA take down. You are free to let the copyright owner know of the infringement.
Why is Twitch just NOW enforcing this?
It’s not new, there have been NO rule or protocol changes at Twitch. Twitch has always enforced DMCA claims - they have to so they can remain under DMCA Safe Harbor protections.
However — musicians, game developers and other copyright holders are now realizing that their rights are being infringed and are now issuing DMCA claims. Just because copyright holders haven’t been enforcing their copyrights until now, doesn’t mean they can’t. I anticipate that going forward the number of DMCA claims being issued are only going to increase.
Twitch mutes my VODs so I’m safe right?
No, VOD muting is to protect Twitch, not you.
I see large streams playing music from pop artists all the time, how are they safe?
They aren’t. Their channel is at risk for DMCA strikes, termination, and other potential legal claims. Eventually one of them is going to get sued, and they may have no legal footing to stand on.
What about fair use?
Fair use is a defense, not a right.
In order to claim fair use, you have to have been sued… which is generally a bad thing and something to avoid. Your use of something isn’t fair use until a judge decides it is. It doesn’t matter if you attribute, it doesn’t matter if you didn’t make money, and it certainly doesn’t matter if you think it’s a “parody.”
Don’t rely on fair use, especially when it comes to music. There is law already in place regarding sync licensing, you’re not likely going to win that fight. Other people have fought the law, and the law won.
I heard if I get a PRO license from ASCAP, BMI, SESAC I’m safe to stream whatever music I want.
Completely incorrect, a PRO license is only for public performances (think internet radio, baseball games, restaurants, on-hold music, essentially anything not being synced to videos) and do not pertain to the sync license you need to include music in your broadcast.
So to be safe, I need a sync license, how do I get one of those?
You MUST have a valid sync license for every single track you play. To get a valid sync license, you need permission from each and every copyright holder who’s music you want to include in your broadcast.
There are many of the musicians in the industry have blanket global sync licenses, let’s take a look at what some of these look like:
So I have to make sure I’m legally allowed to play every song I use in my stream?
And if I don’t, I am at risk of getting sued or losing my channel?
That’s a pain in the rear.
You’re not wrong.
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 which of the licenses are still valid. This is why Pretzel’s catalog doesn’t include the Twitch Music Library, we negotiate directly with the copyright holders to secure the licenses we need.
There has got to be an easier way.
Yeah we think so too, that’s why we’ve built Pretzel Rocks.
So how does Pretzel Rocks get around all of this?
We don’t get around all of it — you won’t find Taylor Swift on Pretzel Rocks.
The Artists who are part of Pretzel Rocks understand that content creators are helping them promote their music. That’s why they agree to be part of the platform.
We have negotiated and signed contracts with every single artist on the platform. They allow Pretzel Rocks to issue irrevocable sync licenses for each and every track on Pretzel Rocks.
I bought the song on iTunes / CD / Cassingle — That means I own it and can play it on my broadcast right?
No. Buying the music does not give you a sync license for the music. You must have written permission from the copyright holder.
Remember that a sync license is the right to play music in a video. MTV’s Catfish uses a lot of music in their show, they can’t just go pick up a Taylor Swift album from the record store down the street. They have to contact the copyright holder to get a written contract that issues a sync license to use the music in their show, and usually they pay the copyright holder as well.
I pay for Spotify / Pandora / Google Music / Amazon Music — I’m safe right?
No. Spotify, Pandora, Google Music, Amazon Music and pretty much EVERY other streaming service does not grant you sync rights, nor the right to broadcast the music… these services are only for personal listening.
Using these services to play music for your broadcast directly violates their Terms of Service.
Does this mean if I use Spotify to play music for my stream my channel can get in trouble?
No. If you violate the Spotify Terms of Service your Spotify account can be terminated, not your channel.
What about SoundCloud?
SoundCloud has it’s own set of issues which I covered in our other blog post. Essentially if you use SoundCloud, your channel can still be at risk because SoundCloud doesn’t do the necessary vetting to know that the music is safe.
For example, I could sign up for a SoundCloud account right now, upload a Taylor Swift song and mark it as “Creative Commons” in the SoundCloud system. Any streamer who then plays that bootleg track on their stream is now liable and at risk.
Wasn’t there something with PewDiePie where he had a valid license and then it wasn’t valid anymore and he received a DMCA takedown?
Essentially a game developer didn’t care for something PewDiePie did so they revoked his license to use their game, issued a DMCA takedown and he received a Copyright Strike on YouTube.
Under current copyright law, Let’s Plays do not constitute fair use. The game developer was completely within their rights to do this. Really, give the Robot Congress episode a listen, and also subscribe to it, they do great work! #notsponsored
I have more questions that weren’t answered here!
This was a long post, mainly because the DMCA is complex (and I could write a whole book on it, if I had the time and thought you’d read it). But the main things you need to know are
- Unless you get the right licenses, your content can be taken down and your channel can receive strikes.
- If you receive enough DMCA claims (supposedly 3 strikes) these service providers will terminate your account, meaning you lose your channel.
- If you upload content that is infringing, you can be held liable (which could hit you where it hurts — your wallet, pride, and reputation).
- Twitch/Mixer/YouTube are all awesome platforms, but they are not your friends and will not protect you if you accidentally or intentionally infringe on someone else’s copyright.
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. Any particular outcome is based on the facts and circumstances of each particular case and the applicable laws of your jurisdiction.