Twitch Suspended DragonForce Guitarist’s Channel After He Played His Own Music

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Twitch Suspended DragonForce Guitarist’s Channel After He Played His Own Music
Image: Ollie Millington/Redferns via Getty Images

After giving its legion of creators effectively days to delete all their existing clips over Digital Millennium Copyright Act concerns, Twitch’s DMCA hell is getting even deeper. Today, one of the platform’s higher profile musicians has started streaming on YouTube instead, following the suspension of his channel.

The musician is Herman Li, one of the co-lead guitarists for metal band DragonForce. Li and DragonForce have been streaming for years, and the metal band — a favourite for many fans of Rock Band and Guitar Hero for their punishingly difficult Through the Fire and Flames — were huge supporters of music livestreamers on Twitch.

When Twitch streamers and creators were hit with a wave of DMCA notices earlier this year, DragonForce publicly announced that streamers could play anything from their Maximum Overload, Reaching Into Infinity and Extreme Power Metal albums without worrying about DMCA claims.

However, Li’s profile, and the fact that he was largely playing his own music, doesn’t seem to have helped the guitarist avoid the DMCA hammer. The guitarist announced this morning that Twitch had suspended his channel, so he was moving over to YouTube instead:

The whole thing is a bad look for Twitch, which is coming under increasing pressure from all sides. The platform was already facing heavy criticism for the nuclear-esque solution last week, when creators found out via email that some of their clips had been automatically removed by Twitch — but Twitch couldn’t tell them which clips had received DMCA takedown notifications.

The short delay in DMCA takedown processing effectively meant creators had only days to delete, in some cases, years of content. Some creators found a solution by reuploading their clips to YouTube, relying on Google’s Content ID system to identify which clips were in violation. Other members of the Twitch community built their own workarounds, and former Twitch engineer Justin ‘TheGunrun’ Ignacio linked to these creations to help streamers mass-delete all their VODs.

Twitch launched their own music tool called Soundtrack earlier this year, but the music industry has accused the platform — and Twitch’s parent company Amazon — for not requiring users to acquire mechanical or synch licenses for the music. “We are also deeply disappointed that Twitch continues to allow and enable its streamers to use our respective members’ music without authorization, in violation of Twitch’s music guidelines,” a letter from major American music publishers and organisations, including the SAG-AFTRA screen actors guild, said.

Twitch responded to the letter, saying that Soundtrack was a fully licensed service, and that they complied with all valid DMCA notifications, but that only seemed to aggravate the music industry further, according to Variety.

“Twitch continues to turn a blind eye to the same users repeatedly violating the law while pocketing the proceeds of massive unlicensed uses of recorded music,” the chairman and chief executive officer of the Recording Industry Association of America (RIAA), said. “And Twitch’s claim that it responds to takedown requests it considers ‘valid’ fails to show good faith with music creators. Further, Twitch’s shifting of its responsibilities to artists who use the platform is certainly not the act of a company that genuinely wants to partner with creators.

“That’s why a broad coalition of organisations have united to call Twitch out on continuing to make available unlicensed recordings and compositions on its platform.”

Twitch’s biggest problem is the lack of a system that helps identify and inform creators of DMCA notifications. The platform’s required to act on DMCA notifications to maintain its “safe harbour” status. Safe harbour is necessary for platforms to protect themselves from copyright infringements of its own users — provided the platform acts upon takedown notices when they receive them, acknowledges that they’ve done so, and acts in ‘good faith’ when handling these claims.

The good faith element is a key legal factor here, because the music industry has directly claimed that Twitch has done everything but act in good faith:

We are further concerned that Twitch continues to host and widely make available unlicensed music on its platform despite the company’s announcements, most recently in June 2020, that it would remove such unlicensed music. Twitch appears to do nothing in response to the thousands of notices of music infringement that it has received nor does it currently even acknowledge that it received them, as it has done in the past…

Further, we are concerned by your responses to questions regarding licensing made during the House Judiciary Committee hearing on July 29, 2020.  We note that you failed to confirm whether Twitch has acquired any licenses to make copies of musical compositions or digital performances of any sound recordings on your platform.  You also failed to state what action Twitch is taking to prevent unauthorised copies and performances.

As an example of the discrepancy, CNN Business reported in August that the RIAA had sent more than 1,800 takedown notices to Twitch in June alone. Twitch, meanwhile, had only issued 710 DMCA notices to users since 2017 before its first major round of mass deletions that same month.

Twitch has been relying on a system called Audible Magic to detect copyright music during VODs, and you can see this being used on any old Twitch videos. If you’ve seen a section of a past broadcast or VOD muted because of copyrighted music, that’s Audible Magic at work. But it’s not as advanced as the machine learning-powered Content ID system on YouTube, or some of the systems available to the music industry today that can detect infringing content during a livestream.

With YouTube, content creators can at least work through an appeals system. Those tools don’t exist on Twitch right now, and consequently a lot of major channels and streamers have begun disabling the ability to create clips from their channel as a way to protect themselves. Twitch’s backend doesn’t even give creators the potential to hide or unlist existing VODs and clips, which would have at least been a useful halfway step. And Twitch has no appeals process, despite it being a mandatory feature on other streaming and social media platforms. Such an option would have undoubtedly helped Li and other streamers playing and creating their own music live.

It’s all a reminder of how the global copyright model remains totally unequipped to deal with a generation of streamers and online-only content creators. And while the status quo remains, suspensions like the ones against Herman Li are likely to be far more common. The music industry isn’t happy, and until that’s rectified — or laws are changed — a lot of creators are going to get caught in the crossfire, whether they own their own music or not.

Comments

  • Situations like this aside, I have little sympathy for anyone complaining about having to delete videos where they just sat with Spotify or something running for hours on their streams.

    Music copyright has been a big deal for Youtube, the biggest video content platform on the planet, for years… Expecting it to just never hit Twitch like a goddamn train was pure stupidity.

    I swear some streamers, Twitch specifically, have a sense of entitlement that is just utterly gross.

    • Yeah, Grayson can bang his anti-twitch drum to the tune of “poor creators losing their content” but if you really cared about your content so much, why would you risk playing music you don’t own? You’re bang on the money about entitlement here.

      Now, that clearly doesn’t apply to Dragonforce guy, so his situation is unique.
      I think the reality there is that as a creator (of music) you can’t expect exceptions to this kind of thing unless you went through a process during account creation/affiliateship/partnership in which you specifically got to say “I am this musician, this music belongs to me” then you can’t expect the DMCA robots to know not to strike you for certain music.
      I’m not defending the DMCA robots or the system here, but it’s not magic. You can’t expect it to just work in cases like these.

      • The situation is not unique. Time after time it has been shown that DCMA notices are generated by the flimsiest of automated algorithms that routinely and systematically flag masses of permitted and fair use content. The way DCMA is being applied currently is a gross abuse of the system and completely inconsistent with due process.

    • You can believe the streamers were irresponsible and that Twitch’s actions are bad at the same time.

      First of all, Twitch is going further than they need to in deleting the videos: all they are required to do to comply is disable access to said videos.

      Second of all, when Twitch deletes or disables a video in response to a DMCA notice, they are required to inform the infringing user of what content has been removed/disabled (e.g. by passing on the DMCA notice). As Twitch is not telling people what the infringing content was, they are unable to file a counter notice if they believe the original notice is in error.

      • Yep – a lot of Twitch users probably have been negligent, but Twitch is at fault too.

        On a different note the laws around copyright are pretty far behind the current applications of those laws – in the U.S. ‘Fair use’ is a bit of a mess and here we don’t even have fair use – technically no one in Australia can broadcast a clip of some copyrighted content without first acquiring written permission to do so. (The usual I am not a lawyer disclaimer goes here, I could well have missed something) To my knowledge no Australians have been treated differently to Americans when it comes to legal consequences of using copyrighted material, but theoretically we could be, and I think most Australians don’t even know that.

        It’s a lot to ask people to be on top of all this stuff when they just want to do what they see others doing.

        • I guess I can chime in here (given I am a lawyer, albeit not an IP lawyer).

          There actually are provisions under Australian copyright law that are somewhat comparable to what I understand the American provisions to be (though I must admit I have never seriously considered American law on the point).

          See sections with respect to “fair dealing” and “acts not constituting infringement” in the various Parts of the Copyright Act:
          http://www5.austlii.edu.au/au/legis/cth/consol_act/ca1968133/

          • Ah, thanks for that, I’d read up as much as I could on this stuff a couple of years ago when I first started a YouTube channel and obviously missed that stuff

        • I should have made it abundantly clear that I am not saying that our systems are precisely the same (there are clearly uses that Americans can arguably lay claim to that we cannot) but I just thought I should point out that there are some legitimate (fair) uses that are well protected.

          • A bit late to this convo but where the idea that you need written permission might come in is that one of the tests for fair dealing is whether not or the owner would have granted permission for its use (one of the effects of our crap freedom of speech protections that only applies to political speech). This comes from a lawsuit where Channel 9 sued Network 10’s The Panel over using some news footage taken from Channel 9 News. If you have to fight fair use on YouTube or Twitch, you absolutely want to fight it on the basis that it was hosted by US companies so you can use the better US Fair Use laws.

    • To be pefectly fair it seems like its hitting a lot of old vods people had… and the issue is their mass deleting AND terminating without specifically mentioning which vods are the culprits

      Twitch is basically doing a YT when they got hit hard with DMCA years ago except whats worse is they should have had stuff in place already since YT dealt with this ages ago and they’ve had years seeing this coming.

      Also they’ve had DMCA issues before so nothing new…

      And finally they made themselves a huge target by obviously introducing dedicated music stream service of their own. Of course RIAA and the like starts paying attention when easy earnings. They reaaaalllyy should have had stuff in place.

  • Modern day content creators rarely create their own content without ‘borrowing’ others to make it work. Herman Li is NOT one of these people.

  • To be fair a record label musician doesn’t own his own music… the label does. The surviving beatles can’t play their own songs without permission.

    The funniest DMCA take down was when FIFA (the football organisation) took down a FIFA game trailer for having soccer footage. (which was CG)

    Nintendo for years kept copyright striking their own channels for Mario and pokemon trailers.

    • It’s common for record labels to own copyright in the recordings of their songs, but not copyright in the songs themselves. So it usually wouldn’t be a problem for an artist to stream new performances of their work, even if they are signed to a major label. It’s the same way the label won’t necessarily get a cut when a band goes on tour to play their songs live.

      The Beatles case is a bit different: Lennon-McCartney songs were owned in partnership by a company the two musicians lost control of. Their ownership was diluted when the company was taken public, and they eventually sold their minority stake.

  • I’m not defending Twitch, the music industry or content creators stupidly using licensed songs but on the subject of DMCA’s and sending 1800 in a single month, it kinda sounds like the music representatives want them acted on instantly and without any investigation.

    • IMO the Copyright laws themselves don’t need significant changes (although record companies and other big interest groups would probably disagree with me on what “significant” means in this context) but certainly the means by which copyright and fair use claims are handled needs some very significant work done. You can’t expect Joe Blogs streamer with 500 average viewers to deal with Copyright on the same level as Sony Music or whatever large corporate IP holder you can think of. It’s not reasonable in the modern age.

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