The Devil Works Hard — But Twitch Works Harder
Copyright laws are taking down popular Twitch streamers — one ban at a time.
Imane Anys (Pokimane) tweeted this out a few days ago after receiving a DMCA takedown notice. Twitch caught her live streaming an episode of Avatar: The Last Airbender to her 20,000 viewers and consequently hit her with a 48-hour ban.
She is just one of many Twitch streamers that have recently gotten banned over misusing copyrighted work on the platform. The frequency of these bans confused me — were streamers reckless or was Twitch ruthless? It all leads back to the Digital Millennium Copyright Act (DMCA), a lengthy document that sets the rules regarding copyrights and the Internet. I combed through this file and Twitch’s terms of service to find out why the DMCA is necessary and why these streamers’ “ban-worthy” actions are not coming from a place of malice.
The DMCA bill passed in 1998. It outlines how copyrights work in a digital age and what steps people can take to protect their intellectual property from unapproved distribution. The Congress archive site highlights the significant aspects of the bill, and one specific part stood out to me:
“Prescribes criminal penalties for willful violations committed for commercial advantage or private financial gain”
Wait, what? So every single person streaming on Twitch right now should be banned and demonetized? That’s where it gets nuanced. There is also a “fair use” law that allows people to utilize copyrighted work if it is for the following:
“criticism, comment, news reporting, teaching, scholarship, [or] research…”
In other words, the courts will grant exceptions for the usage of certain media. Streaming video games falls under this because streamers usually provide insights, comments, or tips to viewers while engaging with the game. And as an avid Twitch user, I can attest to this — I watch people for both their opinions and gameplay. But right now, Twitch is in a so-called “TV meta.” Prominent creators like Felix Lengyel (xQc) and Hasan Piker (HasanAbi) are streaming episodes of MasterChef to their thousands of viewers. Just last week, Piker received a DMCA takedown notice similar to that of Pokimane:
When watching MasterChef, the only way to bypass Twitch’s DMCA death grip would be to provide original commentary on the show. By doing this, streamers would be following the fair use act. But how much commentary is enough? Classifying something under the fair use law is highly subjective, and creators see the severity of their actions differently than Twitch does. Sure, Pokimane got banned for two days — which she acknowledged was justified; but Jeremy Wang (Disguised Toast) did the same thing and got banned for one month. Toast watched more TV on stream than Pokimane, but what metrics did Twitch use to decide on the one month?
Understandably, some streamers are confused by these takedown notices — Twitch’s DMCA rules are vague and don’t go into the specifics of the process they use to settle on ban lengths. And absolutely no one is safe from a ban; even some smaller channels I watch have had their videos deleted because they played 5 seconds of an Ariana Grande song. Twitch doesn’t play around — they will pounce on you whether you have 6 million or six followers.
Perhaps the biggest issue rights-holders have is the financial gain streamers get from displaying their content. It’s no secret that top Twitch streamers get paid a lot — and most of their wealth comes from their engagement with copyrighted property. But when rights-holders start picking and choosing how severely they want to punish violators, it gets tricky for streamers; after all, no one purposefully jeopardizes their career. Twitch should take responsibility and set clear rules that tell streamers how to protect themselves legally.
So to answer my initial question: these bans seem to be a combination of streamers’ recklessness AND Twitch’s ruthlessness. Is it a great idea to openly stream MasterChef or Avatar: The Last Airbender to thousands? Probably not. But Twitch should also set more transparent guidelines. With bans getting handed out like candy, it might be best to avoid tempting Twitch right now because the consequences of doing so won’t be sweet.
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