Music and Streaming – Adhering to DMCA and Avoiding Copyright Strikes!

Greetings all Ara’ni here with another update from the Purple Overlords that are Twitch! As some of you are aware and others not, Twitch released an official announcement that they have deleted many users content including clips, videos and VODs that have DMCA copyright strikes against them. Rather than issue bans they’re giving a one-time warning to help you learn about copyright laws and the tools available about managing content on your channel.

They also stated that any complaints received after 12 noon PST on the 23rd October 2020 will be eligible for DMCA strikes. Three strikes and your account will be banned.

So, what can I do to prevent this? Well, here at Elite we’ve got some advice to give you on DMCA and copyright law and the tools you can use to prevent the ban hammer, because let’s be honest as hot as Chris Hemsworth is, nobody wants Thor breaking through their studio window.

1. What is DMCA?

You’ve heard DMCA fly around more times than a hot potato on some illegal substance, but what exactly is it? DMCA is also known as the Digital Millennium Copyright Act and was founded in 1998 by the United States. In short it makes it illegal to circulate, produce and disrupt access to copyright laws. In the EU this is also known as the Electronic Commerce Directive of 2000.

The simple version is it is a law protects the rights of creators and owners of copyrighted material within the internet. So, if you stream popular music from famous artists without a licence, you’re eligible for a DMCA takedown order.

2. What is a DMCA Takedown Notice?

You may have heard about the DMCA copyright strikes on Twitter, well these are given when your content is given a DMCA takedown notice.

This is usually sent by the owner of the copyright material or their agent/representative company who manage their intellectual property (IP). This doesn’t just include music. It can be images, logos, games and more, which is why it is important to be aware of what pictures you’re using in your content.

You then receive a notification from the provider of the service (in this case Twitch) informing you of the infringement and telling you to remove the affected content. They may delete your content for you and tell you why or may demand you take it down. Failure to do so can lead to legal action, so it is usually best to comply and file a counter-notice.

3. Can I appeal a DMCA Takedown Notice?

Yes, you can, however this is only likely to succeed in certain circumstances and be willing to risk going to court as a possible outcome. This is done through submitting a counter-notice.

There is no time limit for submitting a counter-notice, however the company contesting the DMCA must sue you within 14 days of it being submitted. During this time the provider (twitch) is required to return your content to the platform.

It is important to note however that before submitting a counter notice you need to consider if you are breaking copyright infringement. Since the Twitch issue at hand focuses on copyrighted music such as famous bands and artists, you most likely will not win a counter notice case. This comes down to the simple fact you do not (in most cases) have the required licences to play and broadcast music that is copyrighted.

Cases where you may win a counter-notice is if you are an original composer creating original music and you can prove that you’re not breaking copyright, the artist of an original image or picture that has been stolen and then an ownership claim made against you or if you believe that the company or individual issuing the strike has not considered fair use. Fair use is something all companies issuing DMCA strikes have to consider. It is however a very grey area.

You may have come across those YouTube videos where they state all footage and music in this video is used under the Fair Use Policy as a way of trying to avoid strikes. It’s not always successful because there are four key factors considered under Fair Use.

1. The Purpose of Character of Use.

This is simply what you intend to use the music, footage or images for. If you’re using it on your stream as background music, not fair use. If you create a video doing an analysis of a song and discussing the themes, tones and meanings behind lyrics this is fair use.

2. Nature of the Work that is Copyrighted

Depending on the work, it may have been published for factual reasons or creative. The work may also be published or non-published. The content of the work is also important to consider. If you try to claim fair use for music you play on stream you are less likely to be successful if the music is of the popular genre. Whereas if you try appeal fair use for a strike against the soundtrack to the game you are playing, there is a claim for fair use as it adds to the overall experience of the game and is being used in the context of intended purpose.

3. Amount of the Work Used.

It’s important to note there is no minimum or maximum amount of a song or piece of work you can use without copyright infringement being claimed. If you are using songs as background music, you will not be able to claim fair use even if just portions. In cases of reviews, try to keep the segments you use to relevant sizes that cover the topic being discussed. If you’re reviewing games for example use the relevant segments but don’t have the entire trailer playing in the background the entire time as you talk.

4. The Effect of Use upon The Market for the Copyrighted Work.

This is the most important one when it comes to streaming and fair use of music and the reason why music on streams is very likely to not be accepted under the claim of fair use. With regard to streaming copyrighted music, you are seen to be taking away revenue from an artist and affecting their income. This is because your viewers are listening to their song without payment, this is either in the form of a fee from sites like Spotify or from monetisation of YouTube videos and purchases through iTunes.

In addition, that music you play is also on a source for the majority of streamers where you earn some income. This is either through donations, bits, subscriptions and more and you can be seen in the eyes of the law to be profiting from playing that music.

It’s important to note here that the amount of copyrighted material used will also affect the decision on this factor. If you play a ten second clip of music whilst discussing the themes and beats it is more likely to be considered less harmful than if you stream and play the latest Ariana Grande album in the background.

5. So how do I avoid being DMCA struck?

If you’re reading this far and put up with my legal jargon and general seriousness (which for those who know me is very hard) here’s the TLDR list of stuff you can use to avoid being DMCA attacked by the Purple Overlords of Twitch.

We’ll be releasing another article with more detailed royalty free options soon!

a. Soundtrack by Twitch

Twitch released its new official application of rights free music for streamers to use. Currently in beta it was released to everyone as of 19th October 2020.

b. Pretzel Rocks

A free to use piece of software with a premium option available. It is very popular among the streaming community!

c. Royalty free music

They have a series of playlists or you can make your own and is all free on YouTube

You can find it here: https://www.youtube.com/channel/UCQsBfyc5eOobgCzeY8bBzFg/featured

d. Adrian Von Ziegler

For those of you who prefer a more fantastical theme, this amazing composer (and one of my regular listens) on YouTube allows you to stream his music with attribution. He does ask though you purchase his music first however. He does state his terms in all of his YouTube Video

In short have a look at YouTube as well for more options and also talk to small independent music creators who may even agree to let you use their music with attribution. Just remember to get any of this in writing!
I hope this has helped clear up some of the confusion around DMCA and given you insight into Fair use. If you want more information the best thing to do is look it up on the internet particularly through legal sites.

We don’t want to see anyone getting banned so remember to use common sense when approaching music.

Until then have fun! Have more questions?Join our creator talks in Discord by clicking here.

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