47 Pages Posted: 1 Sep 2015 Last revised: 12 Jan 2016

Date Written: August 26, 2015

Abstract

Live streaming video games webcasts are a growing industry. Led by tech giant Amazon with its service Twitch.tv, the size of viewership is huge with over 100 million viewers a month. Amazon bought Twitch for $1.1 billion dollars in 2014, and with the influx of money comes more legal scrutiny. It consists of Streamers, those who webcast their gameplay, along with entertaining or informative commentary, and the webcasting platform, which generates revenue from advertising and subscriptions and shares it with the Streamer. Even though the service almost necessarily depends on using a game developer's creative work, Copyright Holders are left out of the equation when it comes time to get paid.

By doing so, Twitch leaves their users individually liable for copyright infringement and themselves open to Napster-level infringement litigation and Grokster-style infringement liability. So, what's to be done about it? This note attempts to answer that question.

Statutory solutions are unlikely and undesirable. Using the music industry as a model, we can see how statutory licenses would be undesirable for video games. Litigation would be long and painful for all parties involved. The Napster litigation made the music industry villains while the company was destroyed by its obvious liability. With the launch of Google's competing service YouTube Gaming, it becomes even more clear that the best way to allow the industry to grow without incident is for these services to license the copyrights they use. Not only will it give Twitch and its users peace of mind, but the benefits of exclusivity in an increasingly competitive marketplace will act as a control, reining in the incentives required to attract popular Streamers.

This note also takes a look at how, more specifically, Streamers may be liable for copyright infringement, how the DMCA Safe Harbor provision does or does not protect Twitch, and how fair use operates in this context.