So, you are streaming. You are sharing the joy of whatever you are doing with your audience. You are sharing games. You are sharing chats. You are sharing art. Are you also sharing music? If so, here are a few things you need to know.

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Recently, the streaming community has thrown their hands up in outrage over streamers being issued Digital Millennium Copyright Act (DMCA) takedown orders in connection to the music they have played during their streams. They are all up in arms about it, but most fail to see why their outrage is far from justified.

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Do not get my wrong. Some content creators have a right to be annoyed because the items in question with these DMCA takedown requests become a nuisance to remove (as they could probably have thousands of clips and highlights that have included copywritten material) and Twitch really doesn't give them an easy way to do so.

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However, not being able to playing copywritten music, in general, is not a reason to be upset. If you know of Adam Taylor, aka EposVox, he has something to say about it:

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DMCA, OCILLA, and Fair Use: How it applies to You on Twitch?

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To understand the root of the problem, we have to go back to the causes of this issue: Twitch and its lack of control over the matter for years and developers allowing the usage of their game content including copywritten material which they licensed (but not for your own usage in content creation).

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To be fair, Twitch has had DMCA compliant policy in place for many years, however, they have never truly enforced it themselves and this past weekend has brought about the onslaught. The policy has always read:

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"We ask that creators only share content for which they have the necessary rights. It is a violation of our policies to stream or upload content containing copyrighted music unless you have the appropriate rights or authority to share such music on Twitch.

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You may not include music you do not own in your Twitch streams or VODs (Past Broadcasts, Past Premieres, Highlights, Clips and Uploads), except as described below or otherwise permitted by law.

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Please note that buying music (such as a CD or mp3) or subscribing to a music streaming service typically does not grant rights to share the music on Twitch. Such a purchase or subscription grants you a personal license to access the content only for your personal and private playback"

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The issues stems that the only thing Twitch has done over the years is to mute the audio in VODs (Video on Demand), without doing the same in clips and highlights, with identified copyright issues. This doesn't even include all music; just some.

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I will fully admit, I have been guilty of playing copywritten music during my streams in the past, just as you are. I also figured that if Twitch didn't care, then I would just pass the buck to them if a serious legal matter were to arise concerning it, but never thought it would because I was such a small stream. Luckily, it didn't, but that is not an excuse.

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This is especially so considering Twitch will not be the one having to pay the heavy fines levied against you for violating the law. See, what people don't understand is that DMCA has a provision that allows Twitch to pass the buck to you. Did you know that? Probably not. Take a little read of the Online Copyright Infringement Liability Limitation Act (OCILLA), also know as the "Safe Harbor" provision or "DMCA 512." This allows Twitch, and other online content delivery platforms, to put a policy in place, like the one quoted above, to clear themselves of all liability for infringement. In other words, they don't have to tell you no, but they also can say they did and you chose not to follow the guidelines.

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Contrary to belief, Fair Use will not ever apply in this setting. Fair Use was traditionally a trial defense used in court to justify the usage of copywritten content for the community good. Its usage and definition has been stretched and contorted for the last twenty-five years into the misunderstanding it is today. This was not helped by the U.S. Court of Appeals for the Ninth Circuit decision in Lenz v. Universal Music Corp in 2015. The Court concluded that "fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the exclusive rights to the author of a creative work by copyright law: 'Fair use is therefore distinct from affirmative defenses (the ability for the defendant to raise and prove that the usage was fair and not an infringement) where a use infringes a copyright, but there is no liability due to a valid excuse, e.g. misuse of a copyright.'" (link here)

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Four factors must be considering under this Fair Use Doctrine: the purpose and character of the usage, the nature of the copyrighted work, the amount and substantiality, and the effect upon the work's value.

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1. The purpose and character of the usage:
   Is the usage of a commercial nature or is it for nonprofit educational purposes? That destroys the argument there for using the copywritten material on stream. Most people are affiliates on Twitch at this point. Most people are generating revenue from their streaming. (Even if it is in the form of tips/donation.) If you use the original work to make something transformative, you can claim Fair Use, such as people who took the Verge's PC building video (this is a reupload, The Verge has removed the original) and used it to show you everything that was done wrong within the video (like Bitwit using his Lyle character to do so in this video), but playing music while you are streaming is, under most circumstances, not transformative by nature.
2. The nature of the copyrighted work:
   Is the copywritten work you have used fiction or non-fiction? This has an effect on your usage. Facts and ideas are not protected by copyright. These items are considered part of public domain. However, the expression of these can be copywritten, but even then, those copyright ownership rights can be thrown out if the benefits for the public outweigh those of the copyright owner. For instance, the Zapruder film. Does your desire to play copywritten music fall into this factor? I think not. Ask a lawyer, I am sure they will tell you no, also.
3. The amount and substantiality:
   How much of the copywritten material, in question, did you use in relation to the whole of the material? The lower the amount, the more likely you will be allowed to claim fair use of said work. If you listened to the entire song with your viewers, just to have music playing in the background of your stream, your claim will be invalid. If you listened to the entire song and discussed the aspects of it which make the song good or bad, you might get around the copyright claim. However, the vast majority of those playing music on stream aren't doing this.
4. The effect upon the work's value:
   This rule generally doesn't apply to a content creator, but you should still be aware. Did you do such damage to the original copyright owner's ability to monetize their work? This last factor is the only one of the four that truly falls to the copyright holder to prove in a court proceeding. You would have to defend against this, but most likely, you have done little to no harm to the copyright owner by just playing his/her/their music on your live stream.

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So, you are mad that you can't play your favorite Justin Bieber or Ariana Grande track for your audience. Get over it. You are in violation of federal law, in the United States (and other countries also). The DMCA has been in place since 1998; long before Twitch existed. This is not something new. We, as a community, have chosen to ignore this fact for years and it is now rendering its ugly head to bite us all in the ass. It is our own fault if we continue to believe this practice of playing copywritten material is okay, but it is Twitch's fault for allowing it to continue for years and years with little to nothing being done to combat the growing issue.

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Go back to what EposVox said, "Playing music you don't have license to during your stream is not and will never count as fair use!" Simple? Yes.

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So, what do you do? Well, you have a couple options at hand. You can use one of several playlists that exist out there of copyright free music available to content creators. Spotify has many of these. Check them out. You can license music to use from one of many sources out there, such as Epidemic Sound or Monstercat.

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But what about games with licensed music?

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Let's make an examination of of this topic. My favorite game of all time is Alan Wake. (If you have never played it, you should. It may be ten years old at this point, but it is amazing.) That game has a storied history of being removed of online store fronts when Microsoft, the game's original publisher, did not renew licenses for music used in the game after the original 7 year agreement was up on those licenses. Remedy Entertainment, the developer of the game, bought back the rights to the intellectual property (IP) and renewed those licenses themselves so they could once again have the game out there for new audiences to enjoy.

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Recently, I played through the game again, on stream, to celebrate the tenth anniversary of its release. I then took the recordings of those streams, edited them down into segments, and uploaded them to YouTube. As soon as four of the eight parts were uploaded, the Content ID system flagged those videos with copyright claims on the music.

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Did I try to fight it? Absolutely not. I don't hold a license to that music.

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Was I mad? Not really. That was a product of the fact that I do not monetize YouTube videos; in conjunction with the fact that I had no reason to be since I don't hold a license to the music included.

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What did Twitch do about this fact that I didn't hold a license for the included music while I was live with my live stream? Absolutely nothing. That is where the real problem lies now.

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Maybe it is time for us to reach out to developers and ask them if we can be given options like the one shown below in Quantum Break.

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This is not the only instance of a developer adding this option into their game. The now defunct but reborn, Telltale Games did the same thing with Marvel's Guardians of the Galaxy. Developers are always gaining free advertising from content creators streaming and doing videos of their games. Maybe it is time we rise up and ask them to give us this option in all games.

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Content creators have to pay more careful attention to the games they are playing for this issue. There is no way around this. As EposVox said in the second half of his referenced tweet above, the work needs to be done with the music that developers are including in games. We need options. You need options. Maybe it is time to band together, as a community of gamers and content creators, and get developers on our side.

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What does that mean to you? To us? To the community of Twitch?

It ultimately comes down to two very simple things.

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First, the one you have complete control over, is to stop playing copyrighted music that you have not been given a license to use on your stream. There are options out there for you to play music on your stream. Investigate them and protect yourself. Don't think that you won't be next.

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Second, and the most imperative of the two, we need to band together and get developers to give us options to disable copyrighted music so that when we do play their games (giving them loads of free advertisement) we are protected from being hit with DMCA violations, because they chose to take the "perfect" song to display an emotion at a critical spot in their game.

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Above all else, protect yourself.

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