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Twitch Issues Wave of DMCA Takedown Notices
THE BIG PICTURE
Shortly after announcing a music licensing deal, Twitch issued a wave of DMCA takedown notices to Twitch streamers and removed allegedly infringing content.
TWITCH’S MUSIC LICENSING DEAL
Twitch’s music licensing deal allows streamers to use using within the Twitch platform through a service called Soundtrack by Twitch. The music can be used in livestreams free of charge, but does not include music from major labels. Many streamers use presumably unlicensed music on their streams.
THE DMCA AND TAKEDOWNS
The Digital Millennium Copyright Act protects service providers for copyright infringement committed by third parties, so long as the service providers meet certain requirements and perform certain actions under 17 U.S.C. Section 512. This safe harbor protects service providers from claims of copyright infringement if, upon receiving notice of infringing material, the service provider “acts expeditiously to remove, or disable access to, the material.” (Part (c)). The safe harbor also protects service providers from claims by a user for taking down the content if the service provider provides a process a “counter notification” process for the user to challenge the take down (Part (g)).
Unlike some service providers, Twitch decided not to provide the Twitch users with the opportunity for a counter notification. Note that their their stated policies do include the opportunity for counter notification. Twitch also told some users that they had additional infringing material, but Twitch failed to specifically identify the material at issue. Instead, Twitch effectively told streamers to figure it out themselves and remove the content or suffer the consequences.
By not providing the counter-notification process, a service provider potentially opens itself up to liability from users for wrongful content takedowns. However, Twitch provides its service for free and its terms of service state that it can remove content at will (and limits liability to essentially $100 per user). I imagine that the number of DMCA complaints meant that Twitch could not administratively deal with the number of counter notifications it would receive if it allowed that option. We’ll keep an eye on the situation to see if anything else develops.