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by Zachary Strebeck on 08/12/14 08:13:00 pm   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutraís community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.


On Aug. 6, 2014, video-streaming website announced that it would implement a new system, similar to YouTube’s ContentID, that would automatically flag and mute unlicensed audio in certain videos. Only so-called Video on Demand content would be affected by this policy shift, though it isn’t certain whether leaving out live streams is for technological or philosophical reasons.

Copyright process on video-sharing sites:

This, as Twitch reiterates in their announcement post, is a voluntary action on their part.

This, as Twitch reiterates in their announcement post, is a voluntary action on their part. Generally, unless they have certain actual knowledge or are partaking in the infringement, a service provider like Twitch is in a “safe harbor” when it comes to copyright infringement on their site.

When a user uploads a video with, for example, a Pink Floyd song dubbed over it, it is up to the copyright holder to file a DMCA takedown notice to get the video taken off of Twitch. If Twitch doesn’t comply with this notice and take the allegedly infringing video down, they could be held liable for the infringement and lose their safe harbor status. Therefore, companies like this usually have a process in place to do the takedowns when notified.

If the user who uploaded the video believes that the takedown was in error, they can file a counter-notice with Twitch explaining why. The video should then be reinstated, and the owner of the copyright has 10 days to file a lawsuit alleging infringement.

Proactive measures:

Prior to Twitch’s move, Google instituted a program called ContentID on YouTube. This program allows copyright holders to register their copyrighted works with the service. Google then will scan videos to check for matches with these copyrighted videos. If a match is found, any of four things can happen, depending on what the content owner decides:

  • the video will be taken down;
  • the video’s audio will be muted;
  • advertising monetization will go to the copyright holder instead of the user; or
  • the owner will be able to track stats about the video’s viewership.

Getting a video taken down can result in a copyright strike against that user. After three strikes, the user’s account will be deactivated, unless the strikes expire (after six months).

Now, Twitch is instituting a similar automated system, powered by a company called Audible Magic. Though, instead of taking the entire video down, if copyrighted content is detected by Audible Magic, the 30-minute block in which the content is found will be muted.


The criticism:

Legally, Twitch doesn’t have to do this. They can simply rely on the takedown notices coming in.

There is valid criticism of this move, in my opinion. Legally, Twitch doesn’t have to do this. They can simply rely on the takedown notices coming in. They are providing this as a service to copyright holders in order to make things easier all around. Having a human being respond to all of the notices received can be time consuming and labor-intensive, particularly for a site as big as Twitch or YouTube. However, competitor claims that they will look at every claim on a case-by-case basis. That’s all well and good, but when Hitbox scales bigger and bigger, who knows whether or not they will implement a similar system to deal with copyright issues.

Another issue is with false positives and takedowns of videos that are legitimately using the music or audio. I’ve seen plenty of reports, but no hard numbers on this, so it could certainly be a legitimate concern. Legitimately incorrect takedowns need to be figured out and stopped, as this stops the income stream for those who use these videos as their livelihood. There was even a dark day in Dec. 2013 when Google let slip the dogs of war and tons of ContentID takedowns went out, both legitimate and illegitimate.

This is where you’ll probably stop liking me (unless you’re a copyright owner):

The game maker most likely licensed the song to include within their game, with a limited scope.

However, some of the so-called “false positive” reports are from games where in-game music consists of licensed songs (like Grand Theft Auto V). This isn’t really a false positive, in my opinion.

The game maker most likely licensed the song to include within their game, with a limited scope. They probably don’t have a blanket license that covers uses like a purchaser of the game posting a video including the song. As a copyright holder, it is their right to get this unauthorized duplication of their song taken down.

I know that no one likes this and my opinion is unpopular (I am a lawyer, after all…), but that is the way that the law works now. That’s usually my position on things like this: the law was here before game streaming and other new media. Rather than breaking the law and claiming that the existing law shouldn’t apply to you, you either need to work within the law as it exists or push for a change. It may seem daunting to go up against the interests of “big corporations” and other IP holders, but that’s the world we live in. You can’t really fault companies like Twitch and YouTube for attempting to preemptively regulate the Wild West of video streaming in order to make things easier for both them and for copyright holders.

We live in a very interesting time, where there has been a legitimate shift in the entertainment landscape.

We live in a very interesting time, where there has been a legitimate shift in the entertainment landscape. However, much of the law governing this landscape is pretty cut-and-dry (except, perhaps, Fair Use, which I'll be covering in a new eBook releasing soon). It will be fascinating to see what changes are made going forward to accommodate (or destroy) these new avenues for content creation.

As always, if you need help deciding if what you are going to do is an infringement, or if you need to take down infringing content, feel free to contact me for a free consultation.

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Michael Joseph
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To make things somewhat easier, Twitch should manage a database of music that their broadcasters can license in their streams in a way that is trivial for broadcasters to configure and use. "Premium music" can be purchased and the royalty handling will be done automatically. Non premium music can be comprised of open music and be completely royalty free. The current track information can be automatically overlaid on the stream like a stock ticker perhaps with links for stream viewers to purchase the current track or even entire playlists. Lots of possibilities.

Independent musicians can submit their music to Twitch's licensing database and also start earning royalties when their songs are streamed. Smaller artists might be thrilled to have an opportunity to gain exposure while receiving modest royalties. Artists can also subscribe to receive statistics on the number of people (and their demographics) who were streaming at the time one of their tracks were playing. And as video streaming becomes more popular, bigger artists/labels/publishers might open up their libraries for inclusion into the database.

These sorts of options can make it trivial for Twitch to guarantee the music accompanying streams is being legally broadcasted.

Streaming isn't going away so let's just solve this problem to everyone's benefit and satisfaction.

Zachary Strebeck
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I wholeheartedly agree with you. I think that's a great idea that shows the kind of forward-thinking we need in the space.

I didn't touch on it in the post (I have in previous blogs), but many times it benefits the copyright owner to have this exposure. Many of these Let's Play streams could probably be legitimately taken down by the copyright holders. They don't, however, because they realize the mindshare benefit that those videos give them. The music industry always seems to be behind the 8-ball on this kind of thing.

I think that making it easy to do a revenue share or pay a flat fee for licensed music is a great idea. Thanks for the comment!

Sebastien Vakerics
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I hope you're posting this suggestion to other places aside from this comments section. It's an idea worth looking into.

Zachary Strebeck
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Agreed! Or creating a product that makes it easy (I'm sure something already exists in a startup somewhere, though...).

Michael Joseph
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It's public domain. No credit desired. Take it and run with it.

Maria Jayne
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It feels very wrong that streaming yourself playing a game with music licensed for that specific game is against the law. I can appreciate why you wouldn't allow external music played over the game sound but to prohibit music featured in the game that is a part of the product you purchased just seems obtuse.

Why is this exclusively a problem for music when video game creation contains many different artistic works such as voice dialogue, character models and narrative story?

Zachary Strebeck
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Why? Someone created that music (usually) for the purpose of benefitting commercially from it. At the very least, the record company HIRED an artist (who may have solely artistic intentions) and risked their own marketing and production dollars in the expectation of a return on that investment. They then license that music to the game developer for inclusion in the game, and possibly in advertising the game and other uses. They are paid a licensing fee for each copy, or a blanket fee, depending on what their deal was. They probably didn't anticipate that the music would be used for free by third-party streamers later, who are profiting off of their streams in many cases. If someone is using or making money off of their music later, they would expect to be paid.

It may not make sense, but it is the way it is. What, functionally, is the difference between playing external music and playing in-game music?

And it isn't exclusively a problem for music. All of the game materials are covered by copyright. However, it's up to the copyright holder to exercise that right by instituting a takedown. Many of the music companies are doing so, and companies like Nintendo have done it for their games in the past.

Streamers argue that their use is good advertising, and should be allowed because of that. I would argue that what is and is not good advertising for the game is up to one person, the game creators. Some love it and pay streamers to do so. Many indie devs (and non-indies) see big rewards from people streaming their work. Others, however, probably have their own marketing plans and would prefer to do it themselves. They have that right.

Maria Jayne
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The external music wasn't intended to be a part of the gameplay experience. If I'm driving around in a vehicle with the radio on or playing a part of a level with a sound track that is a part of the experience and has been licensed as such. I've made no intentional action to add music to the game I purchased, it came already featured as I play.

To cut that experience up and define individual parts of it as lawful or unlawful is ridiculous. People wouldn't accept an artist under contract creating the chairs for a game demanding all his chairs are removed from the stream so I don't understand why music gets this special exception.

As for making money from the streams, that brings the question of what that money is for. Often it is termed a "donation" unless it is a twitch subscription, I don't know the terms of the twitch subscription but I would expect a charitable donation to somehow circumvent the ability for the music industry to deserve a cut.

The donations are not required for viewing and are not part of any contractual obligation when given. How would anybody be able to prove that such a donation is as a result of music within a game stream being the cause?

Obviously this is about trying to make more money, but it seems to me the better option would be to simply avoid licensing music entirely. If streamers are muting their game music to stream, maybe that makes the license less valuable. I'm not sure the extra money they are trying to squeeze out is going to make up for the money they might lose from licensing in the future.

E Zachary Knight
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The problem here stems from the idea of music licensing. Music rights organizations such as the RIAA and ASCAP have spent many decades building, implementing and enforcing highly profitable music licensing schemes. Under these, each use of a song has to be licensed separately. So there is a license in which you buy a license to record your own version of a song, a public performance license, in which you can play that song publicly, or a variety of other such licenses all more specific and limited than the ones before it.

So when a video game company buys a license to include a song in their game, they are buying a license that is intended for in home use to only be played when playing the game. The license the game company buy does not include incidental public performance rights. This means that even though the license covers you playing the game in your house, no matter how many people you have over to play the game with you, but it does not cover you streaming that game or playing it in front of a large audience at a big event.

I hope that makes sense.

The reason this is so big of a deal for music is that they are generally the only copyrighted work that has such a complicated licensing system. Most other copyrighted works, such as books, movies and games, don't have the type of cross platform and multi-use issues that music has.

It would be awesome if there was a single license that game companies could buy that covers all uses of that music from in game play to streaming of the game play, but the music licensing schemes are designed to make that as expensive and complicated as possible. So to save a headache and money, game companies buy the minimum license they need.

Zachary Strebeck
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Great post, E. Zachary (and great name).

I'd like to add, as well, that streaming, in general, was not meant to be "part of the gameplay experience," at least in many cases. Rebroadcasting and public performances are separate rights under copyright law that already exist, and licensing schemes are in existence for them already. What we have here are streamers who are doing so outside of the established order of things, kind of going with my point of the Wild West being increasingly brought into the existing civilization.

Maria Jayne
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I'd argue that streaming is not part of the gameplay experience, the game doesn't actually matter that much, hence why so many streamers are transient gamers. You're actually watching the trials and experiences of the streamer, sharing in their frustrations and triumphs.

The game is merely a vehicle to watch the streamer go through similar hardship or elation as you would. About the only time the game actually matters is if it is newly released and the viewer may be using the stream to assess if it is worth such a circumstance, muting the music would likely have a detrimental effect on that decision.

I'm aware I have very little knowledge of the legalities of all this and am just speaking about my feeling on the matter. So thank you both for taking the time to discuss it.

Zachary Strebeck
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I completely understand your feelings on the subject and the frustration with something that doesn't seem to make sense, especially from the perspective of someone watching a stream. However, like I said, the law was there before streaming became a thing.

I would pose the question, then, that why not just turn the camera 100% on the streamer, if the game itself isn't so important? Wouldn't be quite as exciting (like watching those scare video reaction videos over and over again). I would argue that it is at least 50% of the experience.

Kevin Fishburne
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@Maria: I'd love to see someone take the idea of blanket, automated IP enforcement to its ultimate conclusion as a parody. Think Demolition Man, but for IP. We have facial recognition, so why not trademark recognition? Got a Braves cap on while streaming? That stylized letter A may not be reproduced without the express written consent of The Atlanta Braves, and therefore will be algorithmically blurred. Movie posters in the background? Blurred. Television with CNN on in the background? Now you're facing jail time, buddy. If what Twitch and YouTube are doing is just the beginning, I'd hate to be there at the end.

Michael Joseph
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I think when you're talking about a brand logo there should (I don't know if there actually is) be an implicit license granted to display it freely so long as that logo is on an officially licensed product. Thus, if you want to use this logo on a car model in a game you could not since the use of the logo in this case could be construed as fraudulent.

Your parody idea can be taken to the opposite extreme... one in which no content is protected. I would find that world much more interesting. With no such thing as legal ownership of IP, perhaps loyalty and honor would govern the day.

But as it is, we live in a very top down society. Many streamers and youtubers aren't behaving honorably because honor (like chivalry) is obsolete. Someone will be along to smack you when you get out of line... but until then your job is to get ahead. A society built around honor might require an inversion of power (because responsibility without power isn't responsibility at all) and commitment by individual citizens to virtue over all else. (Feudal Japan despite romantic myths to the contrary was an oppressive hierarchical system and only superficially concerned with honor)

Maria Jayne
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@Zachery Streback - I feel the reason you don't just focus on the stream camera is context. You have to associate what the streamer is trying to do and why they feel and react the way they do. You can only see that through association with the game action. Presumably most people watching twitch are gamers, that marriage of gamer watching gamer play game is the engagement for the associative link.

Think about reality tv shows, they generally have two major features. Social interaction and don't just watch the contestants be on camera, you create a situation you can associate with and become invested in. Twitch streamers have both of these via the game play and the viewer interaction. To a gamer, struggling with a bit in a video game is just as engaging/frustrating as anything other people enjoy on reality tv.

@Kevin Fishburne It's a scary prospect when you consider just how many outsiders have their work featured during a stream. I was watching a streamer chatting on camera the other day with a developer and in the background his housemate comes in sits down behind him and flips on this giant concave tv....I briefly wondered if that was product placement....doubtful of course but still, so much stuff on camera sometimes. Not everyone has a green screen or a blank wall.

jeff grant
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To be clear, a music license is not some generic boilerplate; it is, at its heart, an agreement between two parties. In the same way that no two contracts between a studio and publisher are the same, no two licensing agreements have to be the same.

Personally, I think that if this licensing becomes such a big deal, if it hasn't already, the game makers/publishers will include streaming as being allowed in the license when they license the music for the game.

Personally, I think that this situation is, more than anything, pointing out to the legal/licensing teams that they have a new item to include in their licensing moving forward.

And with the large amounts of available music and "starving musicians", it won't be hard for games to find musicians/publishers who will be more than happy to include streaming without jumping through a bunch of headaches like revenue sharing, etc.

I worked in the music business for years, and can tell you that there are a ton of great musicians out there, and it was the ones that were agreeable to the music company's terms that got signed. I envision the same thing will happen in this case.

Zachary Strebeck
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Agreed, all good points. Then when there is pushback against those who don't want to give up streaming rights, they will have to evolve.

However, what is the financial incentive for the music copyright owner to expand the scope of the license? How does the streaming benefit THEM? They could ask for more money, but I doubt that developers would want to pay more. They're just going to be asking for a broader license for the same money.

I'm very curious how all of this plays out.

Kevin Fishburne
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@Michael Joseph: What a world that would be. Exercising personal responsibility as a matter of honor, honor being a virtue everyone held dear. Perhaps someday.

Our idea of and laws pertaining to IP exist in but one frame of thousands over the period in which we have created art. Almost every great book, painting, sculpture, etc., was created in a time without trademark, copyright or patent law. I suppose the difference now is the ease of duplication and distribution combined with the potential for artists and their publishers to reap vast financial rewards. Most of the classical greats, though sometimes achieving fame, rarely made a lot of money.

Zachary Strebeck
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Everyone is free to create and not make money from it. There's no law against that.

Should we punish everyone, though?

Maria Jayne
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@ Zachery one final thought I had was how peripheral makers are embracing twitch streaming. Streamers get sent free products to trial on stream such as a mouse/keyboard or headphones, monitor, chairs etc. They use them, talk about what they think and potentially sell more products to their viewers.

Perhaps the answer for the music industry is to embrace it in a similar manner. If you're going to play music, play our music and promote the places you can buy our songs from when you stream.

Many professional streamers have scrolling marquee like text or scores in their overlay. A simple "go here for this great music you can hear" text link might generate just as much revenue from viewers hearing the music and wanting to get a copy.

Twitch streamers are already playing in stream ads manually that cannot be blocked by browser plugins too. It needs someone from a music label to see the potential rather than the loss.

Zachary Strebeck
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Here, we agree. There are far too many missed opportunities in situations like this for music companies, game companies and other IP holders to make money along with streamers. Having a system in place like someone mentioned earlier could go a long way toward helping.

Chris Book
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I want to touch on the false flag element for a second since you kind of just glossed over it with the GTA5 example and tried to make it sound like a non-issue. The problem is the fact that it flags innocuous things that supposedly ""sound"" like copyrighted music. A couple good examples are the DOTA 2 tournament VODs that were muted because the sound of the crowd cheering is apparently copyrighted music, or the fact that Crypt of the Necrodancer game was having videos muted despite the fact that they created and own their own soundtrack. And there was no way to even appeal the claim until everyone blew a gasket about it? Ridiculous. If they're going to enable such a sweeping change with no advance warning (other than the fact most people knew it was coming after the Google acquisition rumors) then they need to at least work with a company that doesn't have garbage software.

Zachary Strebeck
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Agreed on all counts. These kinks should be worked out and there needs to be an appeals process.

Particularly when people's livelihoods are affected, when they make money on advertising revenue.

Zach Grant
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I think most can agree that the copyright and patent laws of the US are about a decade behind and should be scrapped and completely rewritten to get with the times.

Zachary Strebeck
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Yes and no. For example, the determination of Fair Use is completely obtuse and needs to be either streamlined or "bright-lined," as they say in the law. It's just too difficult to apply to every situation, and it is a defensive, rather than offensive tactic. In all but one case I know of, you have to get past the initial trial stages just to argue it.

But, I don't see how something like music and other basic copyright tenets don't apply very easily here. If what you mean by "get with the times" means to just not give protection to these things, I can't agree with you. If you mean that the terms of these rights should be shorter, not longer, then I could be on board with that. Good luck getting that done, though! :)

Masaru Wada
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Interesting article, I always appreciate different perspectives.

One thing though, and I'm not trying to just plain rip on you, but I suggest you stop using arguments like these:

"...but thatís the world we live in."

"...but it is the way it is."

It makes it sound like you don't really have a rational reason as to WHY it is the way it is. Furthermore, it doesn't address whether it SHOULD be the way it is, and if not, if there's a reasonable way to change the way it is (i.e. if there isn't, maybe people really just SHOULD break the law, for instance the way pachinko works in Japan despite gambling being illegal). Laws are flawed, and we shouldn't necessarily follow all of them all the time, in my opinion. I'm not going to start naming a bunch of tyrants, the horrible crimes they've committed, why they did them, and apply these arguments as an exaggerated counterpoint, but you catch my drift.

Otherwise though your arguments were sound and it did explain the motive behind these actions, for which I thank you.

Zachary Strebeck
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Well, I do argue that if people don't like the way the law is set up, they should push for it to be changed. This isn't easy; copyright law is like a huge ship that doesn't turn quickly. But I don't think that infringing is the way to do it - that's the way you look like the bad guy and make your position weaker, in my opinion.

There are certainly rationales for copyright protection. Heck, it's in the U.S. Constitution (though the appropriateness of the ridiculous copyright term we have is debateable). As I say in the post, companies and creators invest time and money and take all the risk in creating these works. They do so expecting there to be some protection for those ideas against unauthorized duplication and some scheme for enforcing these protections.

I guess the flip side of the argument is: should people be allowed to freely stream these games and make money from it? Is the commentary and the gameplay enough of a creative expression as to make it a legitimate "fair use" of anothers' copyright? I've seen streams that do and do not qualify, I think. It's a great question, and I am curious to see how the public and the law react.

Thanks for commenting! No offense taken, btw. If I couldn't handle it, I shouldn't be posting blogs in public!