The ongoing DMCA drama was inevitable for Twitch. And now there’s a new wrinkle in the story that makes Twitch look even worse. The company has been roundly criticized for not doing enough to protect streamers, or even inform them of violations, with concerns to copyrighted content. This has led to a lot of very concerned content creators having to wait anxiously for the other shoe to drop. So let’s talk a little bit about some background first.
Twitch uses Audible Magic, a technology designed around copyright protection, to manage the identification of copyrighted material on their platform. Trouble is, it’s not designed in a user-friendly way. The common practice for a VOD that has a copyright issue is to mute the identified portion on playback. This leads to common issues where entire streams can be muted. One example pointed to is any reveal stream for events like E3. Because there are so many copyrighted elements of music and game footage in the trailers for these events, they often get muted like crazy. So for users it can be really annoying.
For streamers, it’s even worse. Audible Magic doesn’t clearly mark copyrighted material on Twitch on the content creator side, even when a DMCA is submitted against it. This makes it incredibly hard for streamers to even abide by the process of the DMCA. If users don’t know what content could be infringing they only have one choice. They can’t possibly file a counter, so they can only delete the content. And that’s where we find ourselves now, with many channels outright deleting clips, VODs and other content completely from their channels.
And now we’re getting reports that Twitch is still processing DMCA claims for content that should have been deleted. Whether due to oversight or a server glitch, some users are reporting getting DMCA complaints for the content they thought they had deleted. It turns out that the way Twitch stores clips means that they’re still stored on public servers, meaning they can still be potentially considered legally infringing.
“We deleted our entire legacy and Twitch still didn’t protect us,” said streamer Devinnash on Twitter.
The problem with the way Twitch has been handling this comes down to the process itself. The DMCA allows for claims and counterclaims to be filed by all parties involved.
The basic process allows for an initial DMCA claim to be filed, then the infringing party has a chance to file a claim alleging fair use or other exception to the initial alleged violation. If that counterclaim is filed and legally valid, the content must either be restored or further litigated in court. Twitch clearly doesn’t want to deal with the hassle, so they’re forcing users to bear the punishment without recourse.
To quote DMCA.com:
A counter claim or counter notice cannot be used to delay the process of a Takedown Notice. Once the service provider (ISP/OSP) has received a valid DMCA Counterclaim or Counter Notice they must wait 10-14 days before they re-activate or allow access to the claimed infringing content
The kicker here is that Twitch would often delete the content themselves, outright refusing the creator a chance to file the counterclaim. And since Twitch is not following this process by not making it easy for users to file counterclaims, they could be violating the entire spirit of the DMCA. This kind of issue would have to be determined in court, but it all makes Twitch look all the worse when users are still being hit with claims.
