If you've been on Twitch this summer, watching or streaming, then you know about the new wave of DMCA strikes that seems to be going down. It's not as bad as the crack down of Summer 2020, but it's caught a number of streamers unawares and had significant impact on the gaming community.

The launch of one of the most anticipated games of the summer, The Quarry, was tainted by the immediate influx of DMCA claims streamers began receiving while using Streamer Mode, which should have been fair game.

Hi there, we're aware that some Streamer Mode music tracks are being copyright claimed and we're currently investigating. In the meantime, if you're uploading VODs, you may want to turn off Music in Audio Settings to avoid this issue. https://t.co/tYEl1gQJgZ

— 2K (@2K) June 10, 2022

2K's above tweet about the issue on June 10, 2022 was the last update streamers received, many of whom found the advice to "turn off Music in Audio Settings" insufficient to make up for the hassle of dealing with DMCA claims.

As the DMCA claims and muted Video on Demands (VODs) continue to roll out as the summer progresses, including DMCA claims on live streams, many streamers are asking the question: What can you do to avoid DMCA claims and strikes on Twitch?

Twitch's DMCA guidelines are long and a little overwhelming, so in this article we'll break down some of the confusion.

Here's what we'll be covering:

• What can you stream on Twitch under their DMCA guidelines?
• What isn't allowed under Twitch's DMCA guidelines
• What happens if you violate the DMCA guidelines?
• The larger problem with copyright law and streaming in general

Twitch's DMCA Guidelines: What's Allowed for Streamers

While Twitch's official DMCA guidelines don't have an explicit list of what kind of content is permitted, their Community Guidelines expand on the topic.

Let's break that down.

You can share:

1) Content that you explicitly own.

That would be any original creation, including music you've written, performed, and recorded, as long as it is not a cover of another copyrighted work.

2) Content that you've licensed or been given permission to share.

This includes music you've purchased the licensing for or acquired through a copyright-free music site, like StreamBeats or Soundtrack (Twitch's internal streaming music library).

You'll notice that that's a pretty short list (and notably doesn't include what most Twitch streamers are broadcasting: live gameplay of other people's games. More on that in a moment). The safest way to make sure you don't incur any DMCA strikes is to turn off the music on the games you're streaming, use safe, proven streaming tracks for any background music you want, and only stream your own original content, not other creators' work.

If you're using music from a streaming library, it's important to do your due diligence and make sure it's a reputable site that keeps their track library and licensing up to date. Harris Heller, Twitch streamer and founder of StreamBeats, explains that words "copyright free" aren't a guarantee of anything.

That doesn't mean you won't ever run up against a DMCA issue (automated or otherwise), but operating in good faith under the guidelines will give you a more solid foundation if you ever need to appeal a DMCA claim made in error.

Twitch's DMCA Guidelines: What's Not Allowed

Now for the negatives.

Twitch provides a non-exhaustive list of examples of the kind of content you shouldn't share on your channel without permission or license:

• Other Twitch creators' content
• Pirated games or content from unauthorized private servers
• Content from other sites
• Movies, television shows, or sports matches
• Music you do not own or do not have the rights to share
• Goods or services protected by trademark

"Music you do not own or have the rights to share" includes the soundtracks to the games you're streaming. Whether the soundtrack consists of tracks composed exclusively for the game or existing songs that the game producers purchased the licenses for, purchasing the game unfortunately does not include a right to broadcast those songs. They're just licensed for individual consumer use.

Some game developers have begun to include "streamer modes."

And sometimes, as evidenced by The Quarry debacle of June 2022, streamer mode still isn't surefire protection against DMCA claims — and unfortunately the one held liable for the violation isn't the game developers who mistakenly included unlicensed tracks.

It's you.

Removing Game Music from VODs

One loophole or workaround that many streamers have been using over the last year and a half is VOD tracking. OBS released an update in December 2020 that "adds a second audio track when streaming to Twitch which... is saved to the VOD instead of the stream audio." This allows streamers to strip copyrighted music from their VODs while still having it in their livestreams.

That might have worked for a while, but it violates both the community guidelines (which apply to livestreams as well, not just VODs) and federal copyright law. And, more to the point, Twitch has started enforcing DMCA takedowns on live streams.

Speaking of DMCA takedowns, what actually happens if you violate the DMCA guidlines on Twitch?

DMCA Claims: What Happens if You Violate Twitch's DMCA Guidelines?

DMCA has become a buzzword and a boogeyman in the streaming community, and not without good reason. But what actually happens when the DMCA hammer comes down on your channel?

If you have used copyrighted music in one of your streams, knowingly or unknowingly, there are a few things that might happen: 1) You can receive a DMCA claim. 2) The VOD in question can be muted. 3) The livestream in question can be taken down.

What's the difference between a claim and VOD mutes or live takedowns?

DMCA Claim vs. Muted VODs

Twitch uses an automated review system to detect and remove any clips or VODs that contain unlicensed music. The idea behind this being that if there's less copyrighted material on the platform as a whole, there's less for rights holders to see and issue strikes against. Better to have your VOD muted than receive a copyright claim against your account, right?

The problem is that the automated software that they use is fairly inaccurate. Harris Heller does a good job of explaining why Twitch mutes so many VODs that aren't actually in violation of the DMCA:

Like Heller says, the DMCA strike is very different from a mute. A DMCA claim must be submitted by the rights holder. There's a lot of information that someone has to fill out to submit a DMCA claim, including verification that they are the rights holder or are authorized to make this claim on behalf of the rights holder.

This claim is sent to Twitch who will take down the alleged infringement (VOD, clip, or livestream) and notify you. If you believe the claim is in error and that you had either explicit license to use that music or believe your use fell under copyright fair use, you can submit a counter-claim.

Twitch's Three Strike Policy Explained

On the surface, Twitch's DMCA strike policy seems pretty cut and dry. Three strikes, you're out. But how Twitch defines a strike is a little more complicated than that.

A claim does not count as a copyright strike against your account until a few conditions are met. Here's how Twitch defines a copyright strike:

Submitting a counter-claim is not a guarantee that the claim will not turn into a strike. But it does merit a stay of execution, so to speak. According to Twitch's Repeat Infringer policy, "disputed notifications generally will not qualify for a strike... unless and until the dispute has been resolved by the account holder and the rights holder." That means if you submit a counter-claim, that claim does not become a strike until the rights holder responds. And if they never respond, it never becomes a strike.

Another important thing to note: Twitch claims that strikes are not permanent and that they are "associated with an account for enough time for Twitch to determine whether the account holder is engaging in repeated infringement."

If that sounds incredibly vague to you, that's because it is.

In theory, that means that if enough time elapses between strikes, the three strike counter resets. But because Twitch has not defined how long "enough time" is, most streamers treat DMCA strikes as permanent. Until Twitch clarifies their policy to include an expiration period for strikes, we would recommend you do the same.

What About the Twitch x NMPA Agreement?

There was a lot of noise about the Twitch x National Music Publishers' Association (NMPA) announcement that was made last year. According to Twitch, their primary goal in doing this was more leniency for creators. Lack of leniency for incidental infractions and accidental copyright infringements is one of the biggest issues streamers have with DMCA strikes.

"More leniency" is pretty vague language, though, and it left many Twitch streamers confused as to what the NMPA agreement meant for them and if the DMCA strike process was going to change.

The short answer to that question is: Yes, but not in the way you might think.

The NMPA agreement hasn't replaced Twitch's DMCA Guidelines. It's in addition to those guidelines. Rights holders have to opt-in to the NMPA in order to be able to issue copyright claims, unlike the Digital Millennium Copyright Act (DMCA), which is a federal law that governs all copyrighted material use within the U.S.

Twitch cannot opt out of complying with federal copyright laws, which means that the NMPA agreement is not an alternative to the DMCA. It's simply giving music rights holders an additional way to report copyright violations. The NMPA copyright infringement process includes warnings as well as outright claims, which is where things get tricky.

Warnings instead of immediate strikes sounds like a good thing, but it puts streamers into some incredibly murky waters legally. Under the DMCA, Twitch is not liable for copyright infringements as long as they enforce a policy that terminates users who are repeat infringers.

And while those warnings don't count as DMCA strikes under Twitch's three strike policy, they do count as alleged copyright infringements under the DMCA. So far, there has been no evidence that NMPA warnings are being counted against streamers by Twitch.

But consider the following scenario: A rights holder has submitted twenty or so warnings through the NMPA process with Twitch. All alleged infringements. The rights holder would be legally within their rights to ask Twitch to terminate that user — and, legally, Twitch would have to comply if they wanted to keep their safe harbor status under the DMCA.

Regardless of what their three strike policy says.

The Larger Problem with Copyright Law and Twitch

The DMCA is about more than music. It governs all copyright infringement.

Twitch has historically operated by relying heavily on what Richard Hoeg, business lawyer and creator of Virtual Legality, calls "largesse."

This is different from fair use, which, according to the U.S. Copyright Office, allows for certain uses, usually under the categories of "criticism, comment, news reporting, teaching, scholarship, and research." There are a number of stipulations to what is considered fair use, most of which don't apply to the kind of content that's streamed on Twitch.

Largesse, on the other hand, is integral to Twitch streaming. In the context of IP and copyright law, largesse refers to when rights holders overlook infringements instead of requesting takedowns or pursuing further legal action. This is different from fair use because the rights holders aren't legally required to let you use their IP, whereas under fair use they are.

Hoeg explains what this means for streamers on Twitch:

Did he just say that streaming by definition is copyright infringement?

Well, yes.

And it's not just because of the music. Every part of a game is copyrighted and most End User License Agreements (EULAs) only include licensing for personal use on a single platform, not broadcasting or streaming rights.

In general, most video game developers are willing to let the inherent infringement of their game being streamed slide (aka, they exercise largesse) because of the enormous marketing benefit they get from streaming. But that's not the same thing as legal protection for streamers.

There are some developers that have started including streaming rights in their EULAs. For example, the EULA for Minecraft states, "If you upload videos of the game to video sharing and streaming sites you are... allowed to put ads on them." They've given explicit permission to not only stream and share your gameplay, but to also monetize said gameplay.

Unfortunately, that's not yet the norm, which leaves streamers in a legally precarious position (and means that Twitch's entire business model is a pretty gray area). Currently, the influx of DMCA takedowns on Twitch seem to be mostly coming from music rights holders, not video game developers. But that could change.

In the meantime, continue to play by the rules that Twitch has set out. Use only approved, "DMCA-free" music on your streams, don't mess around with VOD tracking, and keep creating unique, original content.

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