By: Joanna Mrsich
Fortnite, League of Legends, Minecraft, World of Warcraft—what do all of these games have in common? Each one of the above was in the top ten “Most Watched Games on Twitch” in December 2020. The video game industry generates billion dollars in revenue each year. In 2018 alone, the industry projected $137.9 billion in revenues. In today’s video game scene, however, it is not enough to just own and play a video game. The goal for many is to find popularity as a streamer. Twitch is the world’s leading live stream platform for gamers, allowing gamers to create free accounts to follow other streamers or stream their own content. However, when the stream uploads and the fun is done, is there a copyright infringement suit just waiting to happen?
Copyright protection, as codified in 17 U.S.C. §102, exists in original works of authorship fixed in any tangible medium of expression such as motion pictures and other audiovisual works. Under 17 U.S.C. §106 of the Copyright Act, copyright owners have six exclusive rights that they may do or authorize others to do with their work. This list includes rights to reproduce the copyrighted work, prepare derivative works based upon the copyrighted work, distribute copies of the copyrighted work to the public, and more. Therefore, under copyright law, game developers and publishers legally own exclusive rights to the use, images, and videos of their games when in a fixed form. The issue is likely not with streaming videogame play alone—this arguably does not satisfy the “fixation” requirement within copyright law—but rather the moment a user uploads their recorded stream.
However, today’s streamers arguably are not required to gain permission from game developers and publishers to record and upload their gameplay online on platforms like Twitch. Hours upon hours of copyright protected gameplay is uploaded to Twitch, YouTube, TikTok, and countless other platforms. While these platforms typically protect themselves through Digital Millennium Copyright Act of 1998 (DMCA) safe harbors and community guidelines, they still more or less allow and perpetuate an environment of infringement; enough game publishers and developers just have not enforced their copyrighted works. Ultimately, while there is little to no precedent for the enforcement of copyright within the video game streaming and uploading realm, users should be aware of the law and possible legal implications should the day arise when a copyright owner chooses to enforce their exclusive rights.
As stated above, 17 U.S.C. §106 awards video game developers and publishers the rights to authorize, limit, and control who can reproduce, publicly distribute, create derivative works, publicly perform, publicly display, and/or digitally perform a sound recording from their copyrighted works. This means that developers are able to file takedown notices for infringing material and refuse to allow streamers to stream their game. However, popular social media platforms typically find protection under the DMCA. The DMCA amended and updated U.S. copyright law in three main ways: (1) established protections for online service providers in certain situations if their users engaged in copyright infringement; (2) encouraged copyright owners to give greater access to their works in digital formats by providing legal protections against unauthorized access to their works; and (3) made it unlawful to provide false copyright management information or to remove or alter that type of information in certain circumstances.
Moreover, DMCA §512 shields online service providers from liability for infringement—also known as safe harbors—in exchange for implementing the notice-and-takedown system and other conditions.’ Essentially, the DMCA copyright law treats online service providers as “innocent middle-men” in disputes between the owners of a copyrighted work and a user who posted the infringing content. This means that sites like Twitch will not be held liable for any streamer who posts infringing content under the DMCA’s “safe harbor”—found in 17 U.S.C. §512—provided that platforms promptly remove or block access to infringing materials after being appropriately alerted. Therefore, so long as Twitch itself—the online service provider—is not engaging in infringing conduct themselves or enabling end-users to infringe, they will likely be protected under a safe harbor.
Most recently, Nintendo issued a mass DMCA takedown where 379 fan-made games were removed from a gaming website and hosting service, Game Jolt. Nintendo’s DMCA notices explained that all of these games infringed on trademarks owned by Nintendo, such as images of Nintendo’s video game characters, music, and other features of their video games. Additionally, Nintendo’s legal team also forced a popular TikTok user and Twitch streamer formerly known as “Pokeprincxss” to rebrand and pay them for infringing on the Pokémon franchise via merchandise based around her branding and her username. While all of this happened within the last year, it is possible for more developers and publishers to follow Nintendo’s footsteps. Furthermore, while these current examples are claims of copying popular protected works, uploaded video game streams are a direct reproduction of a protected work and thus susceptible to DMCA takedowns and further legal action should a copyright owner choose that route.
What copyright laws are flagged in video game streaming?
In the status quo—or existing state of affairs—platforms like Twitch clearly flag issues around copyright and channel content for their users. Within the site’s “Learn the Basics” page, Twitch clearly explains that creator content should be respected and the process for requesting a takedown notification. Moreover, while they do not require proof of permission to post content, their platform does state “…the rights that you need to secure for copyrighted material in your live broadcast may be different than the rights needed for the same material in your recorded content…”. This is followed by a suggestion to read Twitch’s DMCA Guidelines, Community Guidelines, Music Guidelines, and Terms of Service. YouTube and TikTok’s rules and copyright complaint systems and policies are very similar. Therefore, under status quo rules, so long as Twitch itself—the online service provider—is not engaging in infringing conduct or enabling end-users to infringe, they are likely protected under DMCA safe harbors.
However, just because these platforms are protected from legal liability does not mean that the users who uploaded the infringing content are also protected. Without a license, streamers do not have any legal right to upload streams of a copyright protected video game. Current copyright law clearly allows for video game publishers and developers to pursue legal courses of actions against streamers who upload recordings of their game play—it just has not occurred yet and there appears to be some kind of unspoken and informal agreement between the two groups. Some people within the gaming community also believe there is an incentive to allow streamers to upload infringing content on platforms like Twitch because it is a free and advanced form of social transmission that allows for their games to grow in popularity at rates much higher than normal advertising or word of mouth. The question is: will this always be the case?
Moving forward: what’s the plan?
The status quo seems to be a happy agreement between streamers and video game copyright owners. However, is this what the Copyright Act—and more specifically the DMCA—had in mind as the fiduciary duty of these platforms to their users and to owners of copyrighted works? As society grows increasingly technological and the role of these platforms becomes more interactive with users, should their responsibilities be as easy to fulfill when it comes to the DMCA safe harbors? As it stands right now, platforms do not have a duty to take down infringing content unless copyright holders give “appropriate notice.” Tune in for the next post in this series!