Posted by: Bryan Zhao
April 19, 2015
Twitch.tv is a website that provides video gamers with a centralized location to share and stream their video game experiences with others. Another blog post about Twitch is available on this site here. In August of 2014, Twitch was purchased by Amazon for roughly $970 million in cash. Upon the change in ownership, it implemented a new audio recognition policy to automatically flag content that includes copyrighted music during broadcasts. While the broadcast is not immediately muted, Twitch records and saves streams as videos on demand (“VOD”s) and automatically mutes any flagged stream. The change in policy likely exists so that the site does not violate 17 U.S. Code § 512(a)(4), which is required to maintain safe harbor protection for acts of copyright infringement committed by broadcasters. While the change was unpopular, it was a necessary change to protect Twitch and indirectly Amazon from eventual legal action. However, Twitch may also need to do more to prevent other copyright infringement claims in the future.
What is safe harbor?
17 U.S. Code § 512 is generally referred to as the “Safe Harbor” provision. When an individual performs an act of copyright infringement using an online service provider, the service provider could potentially be held liable for the act. Safe harbor gives those providers protection from liability for their users’ actions, as long as they maintain certain standards as defined under § 512. The applicable standards for Twitch are listed under 17 U.S.C. § 512(a) and § 512(c)(1)(A).
(a) Transitory Digital Network Communications.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if—
(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content.
(c) Information Residing on Systems or Networks At Direction of Users.—
(1) In general.— A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—
(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
Why is the policy important to Twitch?
Safe harbor is essential to Twitch due to its free nature in allowing users to stream. 17 U.S.C. § 512(a) generally applies to transient digital network communications, which streams would fall under. Many of the streamers played popular music during their broadcast prior to the change in policy. Much of the music that was played was copyrighted, which meant that Twitch could be subject to a claim of copyright infringement. The requirements of the safe harbor provision specifically state in 17 U.S.C. § 512(a)(4) that “no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections.”
Let’s examine what the language of the statute means for Twitch. Broadcasting services provided by Twitch would fall under the category of intermediate or transient storage. However, Twitch generally also stores a copy of each streaming session on its servers, to be available for users to watch later. If a streamer broadcasts a stream with infringing content, Twitch knows of the infringement, and then Twitch stores the transitory broadcast on its servers, it may disqualify itself from safe harbor. Additionally, because the website knew that many of its streamers were playing copyrighted songs in the background, they may have also been in violation of 17 U.S.C. § 512(c)(1)(A)(ii), which requires that “in the absence of such actual knowledge, [Twitch] is not aware of facts or circumstances from which infringing activity is apparent.” Introducing such a system gives Twitch a greater defense against a claim that its actions were in violation of this provision, because assuming the system is effective, it can also disclaim any awareness about facts or circumstances that infringing activity is apparent.
Twitch’s implementation of its audio detection system was absolutely necessary despite the unpopularity among its users. The policy addresses an issue that previously could have resulted in a great deal of liability for the company, and its application to videos prior to its implementation addresses another potential area of concern. However, the safe harbor provisions are unclear as to how they are to be applied for separate cases of infringement. For example, copyrights exist not only in audio, but also in writings, such as books. Twitch may still be storing some sort of infringing work on its servers outside of the music industry, which could potentially put it in jeopardy of losing its safe harbor protection.