With reports of Google’s tentative plans to acquire the large video game streaming site Twitch.tv for more than $1 billion trickling out over the past few days, consumers of both YouTube’s and Twitch’s services have been weighing in on what they believe such a massive takeover might mean for the future of streaming video games.

So what are Google’s likely motivations for this buyout—which could expose it to massive secondary liability claims as nearly all of the streaming gaming content on Twitch is copyrighted material? And how will the proposed merger reshape online game streaming?

After learning of this potential merger, critics took to Twitter in droves using the hashtag #RIPTwitch to express their discontent. In particular, many such critics argued that YouTube's content ID system, when applied to Twitch's gaming content (similarly to how it's currently being applied to YouTube users' "Let's Play" gaming content), would likely prove to be a blunt tool that could ultimately neuter Twitch's core service.

"There are certain types of content such as gaming streams for which Content ID creates more problems," the Electronic Frontier Foundation's Parker Higgins said in a telephone interview. "It's often easy for algorithms to match content without weighing competing factors like fair use."

Higgins said fears of a Google takeover of Twitch appear well-founded: "A couple of months ago, there was a change in the way a policy was applied at YouTube that resulted in video game content being flagged and removed through the automated YouTube Content ID system."

Video game rights

For the uninitiated, Twitch.tv is best thought of as a livestreaming, gaming-focused version of YouTube, Google’s online video platform. The Twitch streamer loads up his or her favorite game, and the audience watches the gamer’s performance, participating via an integrated chat room. While YouTube is indisputably the largest pre-recorded video site on the Internet (boasting one billion monthly users), Twitch is among the Web’s largest livestreaming video sites (with 45 million monthly users).

Launched in 2011 by Justin.tv co-founders Justin Kan and Emmett Shear as a subsidiary of Justin.tv (a site focused on user-generated live video content), Twitch's about page explains that the site aims to "connect gamers around the world by allowing them to broadcast, watch, and chat from everywhere they play."

With most games and sports, as we’ve previously noted , copyright considerations (at least with regard to the games and sports themselves) are not a central issue. Nobody owns the copyright to football, for instance, and there's no legal entity that can stop you from holding the world's largest charades tournament and charging for admission, for example.

Video games differ in that they also include significant expressive elements, including character design, settings, voice acting, animation, and more. These inherent elements convinced the US Supreme Court that video games are speech protectable under the First Amendment rather than simply a set of unprotectable "rules." While that ruling protects the games from government intervention, it also gives video game creators a much stronger say over the games' public use than, say, James Naismith has over basketball.

Additionally, because games are displayed and distributed over screens, copyright holders can claim exclusive rights to their public performances under the US Copyright Act (subject to affirmative defenses like fair use). In other words, as with DVD movies, in most cases, the law says that you can’t show video game performances or tournaments to a big group of strangers (say, through an online streaming video intermediary) without a license from the copyright holder.

Nevertheless, there is little US case-law on the books that focuses on what kinds of streams are acceptable fair uses and which are infringing copyright-holders' exclusive public performance rights.

A “Wild West”

This all leads to the question of why Google would want to purchase a site that could potentially expose the company to enormous liability given the legal ambiguity of much of the streaming video content on Twitch currently.

Google declined to comment on its motivations for the potential Twitch acquisition, telling Ars, “We don't comment on rumor and speculation.”

“It is clearly a Wild West in licensing Web streams of gaming," Dallas attorney and Law of the Game blog author Mark Methenitis, told Ars on Tuesday afternoon, describing the current legal ambiguities surrounding streaming game content.

"Right now, there is no definitive answer that says where a live stream video is an infringement. If there were a clear answer to that question, that could change Google's analysis. In adding livestream functionality to YouTube, Google is likely looking to combine the two services YouTube and Twitch into one,” Methenitis continued.

But he also speculated that Google is likely willing to roll the dice here because the potential rewards of such an acquisition will likely outweigh the risks for Google.

"I'm not sure adding Twitch changes Google's liability provided there were a case," he continued. "Google already had some risk with YouTube, and all this does is raise the stakes. By putting Twitch under its corporate umbrella, Google can maybe set some precedent in its favor.”

Higgins echoed Methenitis' sentiments.

While Twitch has not yet been the subject of a major lawsuit by content holders, "once a site becomes a Google site it becomes that much more appealing as a target," said Higgins. But he also described Google's apparent belief that Twitch has a solid legal basis, as "safe harbor definitions have come a long way in recent years. A site like Twitch, even under the Google roof, likely falls squarely under such safe harbors protections," he said.

Additionally, Higgins argued that some gaming content providers—having learned from the copyright wars of yesteryear—see that amateur content like game streams over Twitch could actually boost their business. Thus, game makers might not be as quick to bring a lawsuit as, say, the record companies have been against online music service providers, he explained.

Given Google's army of attorneys, aggressive lobbying of policymakers, and attempts to set favorable precedent through the court system in recent years (most notably during the landmark Viacom v. YouTube litigation battle), the company has shown that it won't shy away from drawing some serious heat when it finds an aggressive litigation strategy good for business, Methenitis argued.

Whether or not Google ultimately follows through with the Twitch acquisition, one thing is for certain: the search giant is willing to try to tame the Wild West of online game streaming.