What's the deal with copyright on Twitch?
So, a friend of mine wants to become a Twitch streamer, commenting over movies. I never used Twitch. He showed me some channels over there that made me confused. There are dozens of channels entirely dedicated to people providing minimal commentary to entire movies, animes, and TV shows which are displayed in full, although not on full screen. And they seem to be monetized, otherwise why would anyone stream 5 to 10 hours a day? They have ads.
I have a few questions.
First, how is that legal? Why aren't copyright holders taking these channels down? Do people really care about a streamer that mumbles a single uninteresting word every few minutes, or it's all just an excuse to watch movies for free? Why the same content that will get your video taken down on YouTube is apparently okay on Twitch?
It’s not legal. You can try a fair use argument but it wouldn’t fly in this case. It’s just that in practice, it’s very hard to do copyright claims on live video. You’ll notice these streamers don’t have vods of the streams.
Yes, people like watching things together. Besides the streamer, you’re also watching it with the rest of twitch chat.
I watch a lot of Twitch (not reaction stuff), so forgive me if I'm being too lenient to the platform.
Distributing copyrighted material (TV, movies, music) on stream is not legal, but no one has been particularly motivated to litigate it at scale:
If I upload an episode of a show on YouTube, it's relatively easy to reach hundreds of thousands of people, on demand, in perpetuity, despite me having no prior established audience on the platform.
If I stream an episode of a show on Twitch, I could maybe reach 10-20k people who are watching live if I'm one of the top 100 streamers on the platform.
It's probably not an excuse to watch movies for free? I would assume most internet denizens know that it is trivially easy to find any popular content you want to consume for free.
Twitch's value for users is a sense of community. If you find a stream you like, it can feel like you're just hanging out with the streamer and the other people in the chat. So the viewers would've probably been there regardless of what the streamer was doing.
As a footnote, this discussion omits any commentary on streamers who react to YouTube videos. That is way more common than watching TV or movies on Twitch, but carries almost no risk for streamers. Despite (I assume) it falling in the same legal bucket.
Thanks, good info!
I am definitely not feeling any moral outrage towards Twitch, it was just surprising and hard to understand.
The young people I know rarely download video and wouldn't know how to torrent. They tend to watch their stuff on illegal streaming websites, and the viewing experience might be similar to Twitch (minus the commentary). Knowing how to download illegal stuff is simply not a required skill anymore.
This is what I was thinking of as I wrote the comment. Torrenting is a niche among people who engage with piracy at all. You can usually get to those illegal sites with the most obvious google search, and I would even go so far as to assume that many people who visit may not even fully appreciate that they are pirates.
Yes... Yet here I am downloading my shows as God intended :P
Twitch has a rather self-evident incentive to leave such content up, and there's a bit of case law to back up such "reproductions" with commentary under Fair Use (see Equals Three, LLC v. Jukin Media, Inc. in particular):
https://fairuse.stanford.edu/overview/fair-use/cases/
But you're absolutely on point with your questioning - anyone with a head on their shoulders can tell most Twitch "commentaries" don't meet the threshold of being a transformative work, so it winds up being a grey area where Twitch will take content down if they get DMCA'd but otherwise let it slide if no one complains to them.
I understand there's not an absolute number, but does anyone have an idea on what the ratio of comment vs copyrighted work is considered okay?
A single word every 5 minutes definitely doesn't cut it, I'm sure!
Fair Use doesn't have any hard-and-fast rules - it's entirely case-by-case, and each of the Fair Use "factors" (transformative nature, commercial impact, amount of material, purpose of reproduction) are nothing more than guidelines.
There is no such ratio, because that is not how the fair use exception to copyright is measured, at least not in the US.
17 U.S. Code § 107 - Limitations on exclusive rights: Fair use lists four factors for consideration when determining whether something is fair use:
Some further explanation of these terms can be found on various pages. I will link here one such analysis from Stanford
I am not a lawyer so the following is a layman's analysis, but what you are asking about seems mostly covered by factor 1 (monetization for profitability weighs against; any pertinence of the commentary would weigh for) and factor 3 (using the whole work instead of only relevant parts for the commentary weighs against).
Assuming we are talking about streaming a movie from start to finish with some amount of running commentary and critique alongside a movie with a fictional subject, we can see that factor 2 and 3 weigh against the streamer ("you"). If you do it for a sufficiently large group, surely factor 4 weighs against you as well as you are providing the work as-is to a not insignificant amount of people.
Even if you genuinely comment and critique the entire movie and all its parts (so much as to make factor 1 weigh in your favour), this to me sounds like it would not be enough to sway a court that what you are doing is fair use, due to the majority of factors being heavily against you.
Your only saving grace might be to somehow convincingly argue that it is integral to said analysis, commentary, and critique that you not only show the entire work, but also show it in order without interruption. Maybe then the court would find that factor 3 cannot weigh against you, and it would be sufficient to establish your use as fair use. This is, I believe, trivially false for any and all movies I've seen, but maybe there is one out there (or one that could be made) where this was the case.
In brief, the main reason that streamers are able to get away with uploading full reactions to copyrighted content is because, unlike YouTube, Twitch doesn't have much of a content ID system. It's typically really bad at detecting streams of others' content, so if rights holders want to strike a Twitch stream, they kind of have to do it manually. And often, there's little point. Twitch has vods, yes, but very few people watch those. So rights holders, to have a real effect, would have to identify and takedown offenders very quickly live (or rely on Twitch's fairly weak content ID system). Some rights holders, particularly movie studios and anime producers, are more fastidious about this than others -- you'll probably get a strike pretty quickly reacting to that type of content. But a lot of TV shows, especially older TV shows where the run has already ended, are pretty much fair game, because studios don't seem as interested in defending their copyright there.
So why is Twitch's content ID system worse, and why do viewers even watch this stuff? Twitch's incentives are incredibly clear: a lot of people like watching reaction content, so if streamers can get away with making it, and viewers with watching it, it's good for the bottom line. And speaking as someone who occasionally watches streamers and YouTubers react to shows or YouTube videos or video games or albums I've already experienced, I think the appeal lies in the parasocial relationship aspect: you get to experience the content, again, with a "friend," maybe gain a new understanding through their perspective. So I'm not entirely convinced that the reasons this stuff is popular is to act as a substitute for paying for certain art, and I think many rights holders take that view, too. Consider: why do almost no YouTubers ever strike reactions to their videos? They'd be well within their rights to do so. Usually, it's because they see some value in pushing their content to a wider audience. And I think internally, some rights holders for TV shows and the like probably feel the same.
I don't know about prerecorded content, but I can tell you that I've very rarely seen pirated sporting events on Twitch in the many, many years I've spent watching pirated sporting events. None of the consistent and longrunning sites broadcast using Twitch, and Twitch itself doesn't seem to be a good resource for finding these streams when you know an event is underway. The rare times that I've seen pirated sporting events on there, they don't tend to last the duration.
I think it's just a balance of content holders not really caring about a twitch stream showing a random movie or TV show (I do know there's one that shows like two episodes of The Simpsons every week or so, because I've followed them on Twitch for months). I doubt its worth the hassle outside of new releases. People who want to watch the latest Marvel movie or whatever are presumably pursuing it via a different avenue, and I'm guessing that the Twitch streams you come across don't have a ton of viewers (I'm going to put bar at like 3k). Sporting events on the other hand, the live part is the whole draw, and those companies really care about getting that stuff taken down.
edit: This also depends on how popular the content being shown is, come to think of it. There's a few Twitch streamers I follow that show a curated rotation of like, old Sci-fi movies, or random Japanese Sentai shows/movies, or Kung Fu movies, etc. Those seem to last a long time, I'm guessing because anyone who owns the IP doesn't know or care about the streams, and heck, may not even care that they own the IP in the first place.
It's not, but smaller streamers can sort of fly under the radar. Even bigger ones pull it off until they get caught.
No.
They care about the streamer who generally happens to be watching a thing. Unless there's some movement I missed it tends to be huge streamers who pull this off who built their audiences doing other things.
It's not, but Twitch's content moderation is slow and sketchy. It's better than it was, especially a couple years back when they completely silenced VODs and banned players before saying "This is the year of music" at Glitchcon (their online pandemic convention), but they're still miles behind YouTube.