This past week we’ve all been reading about how Twitch.tv abruptly changed their policy on copyrighted audio in their Video on Demand channels and live streams as well. Naturally, with a Google buyout of the company already being rumored, this change sparked an immediate reaction from the gaming community.
A few days after the sudden changes, things seem to have settled down, and Twitch has back-tracked on some of the new policies. But why did this happen to begin with?
Why was there no prior announcement to these changes?
Did Twitch really implement sweeping changes of this scale and not expect outrage when they muted the streams of their users without warning?
To answer these questions, we need to look at what this debacle really tells us about Twitch, the corporate internet, and our own community. To that end, here are 10 things the Twitch.tv audio copyright fiasco teaches us:
1. The Web is Built Upon Content Creators, but Controlled by Providers
Way back in 2008, a little company called Viacom decided to sue YouTube owner Google for copyright infringement to the tune of $1 billion. This suit was only settled just this year with the terms of the settlement left undisclosed.
In the course of this suit, Viacom demanded that YouTube be forced to hand over the personal information of every YouTuber who used copyrighted music in their videos, and unfortunately the court ordered just that. Thankfully, YouTube went through great pains to organize the data in such a way as to preserve the individual anonymity of each user (though this took a painstaking amount of time and delayed the case) which protected those users from individual liability that was obviously Viacom’s goal for requesting the information to begin with.
This case was began to the definition of the fundamental law of the internet – that users who create content will always be subject to the demands of those who provide channels for that content to reach an audience. It comes as no surprise that this was also when content providers started cringing any time the word “copyright” was typed or spoken.
You see, in the real world, content creators – authors, script-writers, artists – hold a greater control over what they create than on the internet. A writer has the option of going to any publisher he or she wants and submitting his work so he or she can be treated fairly according to his or her principles. An artist can similarly choose an agent from among many, or simply sell their work on their own.
However, when we step into the virtual world of the internet – starting with this one fundamental case – we see just the opposite, and Twitch’s sudden and irresponsible changes and their consequences for users prove that.
Well, in the real world there are simply more content providers to choose from and a greater amount of competition among those providers for the work of creators. Google owns more than 40% of the internet according to Forbes.com, and that ownership spans the globe. Even the largest movie studio in America can only affect American audiences, and none of them can claim ownership of almost half of all the movies made each year.
That a single entity like Google has so much ownership of the internet – of the sites that stream and provide content to users – is incredibly dangerous for exactly the reasons we keep seeing with Twitch and YouTube.
It isn’t so much a fear that Google is trying to monopolize the net (even though that is a valid concern) but that – as we saw in 2008 with the Viacom suit – with such a vast net presence whenever Google gets in trouble a lot of content creators get dragged into it and become collateral damage.
So, next time you go to upload something to YouTube or Twitch (which may soon also be owned by Google) consider that you’re putting your content in the hands of a company with a huge target on its head for those looking for frivolous suits or “easy money”.
2. Record Labels are EVIL and Online Content Providers Fear Them
So online content providers like Twitch and YouTube basically call the shots as far as those whose content they host are concerned, but who calls the shots for the content providers? After all, these providers are trying to make money at some point, so there has to be a crossover between the real world and the net, right?
Yep.
And the Big Bad Wolf to Google and Twitch’s Little Red Riding Hood are the corporate record labels that constantly try to gobble up anything they can remotely skew into looking like “copyright infringement.”
See, by virtue of being online entities, these content providers are at an automatic legal disadvantage because of the lack of legislature regarding the way they operate. For instance, the record industry has had 126 years for governments to come up with laws to protect them, their customers, and their artists.
Conversely, Google was started in 1998 and didn’t acquire YouTube until 2006. Twitch.tv is only 3 years old. By comparison, net-based companies simply have not had as much time – nor been paid enough attention – to have the same kind of protection.
That being said, the legal protection that the record industry has built upon after so many years has now become a death grip on its artists and customers. This is due in no small part to the advent of the internet and the ease with which users can freely acquire the same music that these labels would charge for.
Beginning to see where labels are evil?
Record labels as an industry do not work well with the concept of the internet. Prior to the net, these labels were the only gateway through which you could acquire an artist’s songs, and you had to pay whatever price they set within legal limits. However, with the net, artists can freely distribute their music themselves, can ask for donations, or start their own site where you can download their songs directly from them. Hell, with the advent of social media fans can tell artists exactly what they want to hear.
This is very bad for record labels. Very bad.
For one thing, labels rely a lot on word-lawyering in contracts with artists in order to maximize their profits. If artists do not sign with a label and instead publish their music online, there’s no risk of signing away any of their rights or royalties.
So, labels lie to their artists and attempt to trick them into bad contracts, and that makes them evil. Seem a bit harsh?
It shouldn’t, because what they do to artists is only almost as bad as what they do to fans of the artists:
- The music industry has blatantly lied about online music piracy many times.
- The Record Industry Association of America spends $2 to $6 million per year lobbying in the United States (this has remained consistent despite claims that the industry is losing more money each year due to online piracy).
- The music industry is continually attempting to strip internet users of their right to anonymity and privacy.
- Record labels have sued Pandora Radio, Google, every P2P sharing service or site they have found out about, and even a 12-year old child.
- Oh, and they set the standard for poor employee treatment, too.
And this is the industry that keeps a constant gun to the head of online content distributors. They have over a hundred years of experience protecting themselves and destroying their opponents in the courtroom, and they hate online content distributors because these distributors – while not necessarily directly competing with the labels – give people access to the same content for free that the music industry would charge for.
Is it really any wonder that Little Red is scared?
3. Nerd Rage Can Actually be Constructive
Changing gears a bit, let’s take a closer look at the Twitch.tv debacle specifically.
On Thursday, August 7, without warning, Twitch suddenly introduced audio copyright detection software to their site and servers, similar to that which is found on YouTube currently. This sudden change also came on the heels of rumors that YouTube will be acquiring Twitch for $1 billion.
Twitch has announced and admitted that the software isn’t perfect but that they have no intention of muting live streams. However, Twitch’s own show as well as streams of Valve’s Defense of the Ancients 2 international tournament matches were muted, and because of the inaccuracy of the software the reason for either of these being muted is completely unknown.
According to Twitch’s blog, the site is using Audible Magic to scan audio in videos and the software is limited to the point that background music or even in-game music from the games being streamed can trigger it.
In other words: this incredibly sudden, poorly-informed change relies on incredibly unreliable technology.
Naturally, gamers spoke out immediately and harshly against this change. Blogs, sites, guild and clan pages, and reliable gamer news sources like GameSkinny, PC Magazine, and Gamespot began immediately covering the changes.
What happens when you suddenly and without warning start using an unreliable technology to limit what gamers can do?
Twitch immediately experienced what game developers have been experiencing ever since the first days of World of Warcraft. When you break something gamers love, they set you on fire on forums, videos, news outlets – anything they can get their voices out through.
Now, I want to be perfectly clear here: I’m not making fun of gamers for their propensity to be outspoken about what they like and don’t like. I honestly believe this propensity is what makes our community so great. There is nothing more pure and honest than, well…honesty.
However, something happened with Twitch that doesn’t often happen with developers. They balked – and quickly.
24 hours after the changes to Twitch, parts of the new policy were amended due to the “large amount of feedback from users” according to Twitch’s official blog. Among the new changes are an appeal system for videos and a revamp to make it less likely for livestreams to get unintentionally hit by the audio copyright mute.
It may seem like a small victory, but again, consider the timeframe. In a day – or slightly less than a day – a change that would have a huge impact on gamers and streamers was significantly altered because gamers were blunt and open about their disdain for it.
So rage on my fellow gamers and nerds! It’s working!
4. Fair Use is Dying
It’s a sad reality that we have to face, but Twitch’s recent changes are another nail in the coffin for Fair Use on the internet.
Phillip Kollar’s editorial on polygon gives a very good layout of the real-world legal implications of fair use, and Eric Chad – an attorney Kollar interviewed – raises a good point when he brings attention to the fact that Twitch is muting video on demand (videos on their site with copyrighted music), but not streams.
If this is really a matter of copyright, how does a video being streamed not infringe copyright, but a video that isn’t live does?
The answer: it’s not a matter of copyright. It’s a matter of fair use – or rather a matter of fair use being cut back further and further.
See, fair use is not a law. It’s an exception. In legal terms this means fair use can only apply in specific circumstances that must be determined on a case-by-case basis in court.
In short: a law must be disproved in court but an exception must be proven.
So, if Twitch were to get sued by someone like Viacom and they went to court, Viacom would almost surely win because it is an undeniable fact that many videos on Twitch contain copyrighted music. The fair use limitation of copyright law could be used as a defense, but Twitch would have the burden of proof placed on them.
That may seem a bit confusing but consider this: in the United States judicial system in all cases whether federal or civil there is the presumption of innocence which says that anyone accused of a crime is innocent until sufficient evidence is provided of their involvement.
In the case of Twitch, they’d be accused of copyright infringement which is the use of copyrighted material without permission. Well, since Twitch does not limit what music their streamers listen to or use, it is impossible for them to attain permission for all the music in videos. Thus, when called to do so in court they would fail and would instantly be proven guilty of the infringement.
Their only salvation in such a case would be the fair use limitation, but in order to invoke that limitation, Twitch would have to prove that each piece of music used in every video they host conforms to the following four factors of analysis:
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- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
So suddenly Twitch is now no longer in a position where the plaintiff must prove their guilt but where they – as the defendant – must prove their innocence through presumed guilt.
Twitch, rather than allowing themselves to wind up in this situation, have decided to implement anti-infringement measures on their site, but in doing so they – like Google before them – have weakened fair use’s viability as a legal defense, because those measures are an admission of awareness that their content could violate copyright law (read: an admission of guilt).
This admission means that if they claim fair use as a defense, they’re doing so after already admitting it may not apply – increasing doubt against them in a case where they must prove innocence rather than the plaintiff having to prove guilt.
5. Music is Very Important
This one may seem like a given, but let’s really consider what Twitch’s changes are all about and why as a community gamers got so upset about them.
I’m an avid gamer. I spend at least 10 hours a day – every day – at my computer playing and writing about the games I play. Anyone who follows me on twitter will see multiple tweets throughout the day linking to youtube music channels I listen to or tweets to or about my favorite artists.
Music is important to human beings. That’s why it has been around since before written history. Music isn’t just nice to listen to – it affects our minds and bodies. For instance, when I’m PvP-ing, I listen to something fast with a lot of bass – it gets my blood pumping and my heart racing. I think faster and make decisions quicker – if more recklessly at times – when I listen to this kind of music.
Music influences how we game and how we think.
The changes that Twitch is implementing really strike at the heart of gamers who intrinsically understand the importance of music. Broadcasters need the music in their streams to game at their best and be comfortable. Viewers appreciate streams and videos more when the music fits them or accentuates highlights of the stream.
So when Twitch is muting videos, it is not just an issue that commentary or tutorials from the streamer are being muted. There is good reason to be concerned when music is silenced for any reason in any environment.
Yes, the changes Twitch is making are important because of their impact on copyright law and how it affects the internet, but they’re also important because Twitch is specifically a game streaming service. Broadcasters who listen to music while playing games, who have their broadcasts muted, aren’t really left with a whole lot of options with these changes. Either they not listen to music while recording – impacting their performance – or they record the music and run the risk of getting muted and flagged for copyrighted audio.
For viewers it’s just as bad, though.
The background audio of a tutorial or Let’s Play on Twitch is a large part of the presentation of the video as a whole. Poor audio equals poor presentation, and if broadcasters are forced away from music that complements the rest of their presentation, viewers will not enjoy it as much – nor will they gain the full benefit.
Hopefully, after the outrage of their fans, Twitch now realizes how important music is to us, and they will keep that in mind if they intend future changes.
In the interim, check out some of my favorite music channels here, here, and here for when you game, write, or just want to relax.
The Take-away
In the end, Twitch has made some massive changes over a short period of time, and whether for better or worse, it looks as though their crackdown on copyrighted audio in Videos on Demand is here to stay.
As gamers, what we should do now is continue our blunt and open discourse with Twitch – and with other online content providers as well. These companies thrive off not only our patronage but also our approval, and when they divert too far from what we as a community want, it’s our privilege and obligation to speak our minds.
Published: Aug 10, 2014 03:48 pm