Twitch's Freak Out Response To RIAA Takedown Demands Raises Even More DMCA Questions
from the not-how-any-of-this-is-supposed-to-work dept
As many of you probably saw last week, Twitch decided to delete a ton of videos in response to DMCA takedown claims (which most people believe came from the RIAA). As we pointed out earlier this year, the RIAA had started flooding Twitch with DMCA takedowns over background music used in various streams. The whole thing seemed kind of silly, and now it appears that Twitch (despite being owned by Amazon and having some pretty good lawyers) was caught without a plan.
And that manifested itself in the way it handled these takedowns. Rather than the standard process — taking the content down, letting the user counternotice, and then potentially putting it back up 10 days later if no lawsuit was filed — Twitch decided to just totally wipe those files out and not even leave an option open to users to counternotice.
The key bit:
We are writing to inform you that your channel was subject to one or more of these DMCA takedown notifications, and that the content identified has been deleted. We recognize that by deleting this content, we are not giving you the option to file a counter-notification or seek a retraction from the rights holder. In consider of this, we have processed these notifications and are issuing you a one-time warning to give you the chance to learn about copyright law and the tools available to manage the content on your channel.
We know that copyright law and the DMCA are confusing. Over the past few months, we’ve been improving the tools available to help you manage music use in your live and recorded content. These include the ability to delete all of your Clips at once and control who can create Clips on your channel, scanning new Clips with Audible Magic and launching a free way to stream high quality music on your channel, Soundtrack by Twitch. Now that these tools have been released to all creators, we will resume the normal processing of DMCA takedown notifications received after 12 noon PST on Friday, October 23, 2020.
So… reading between the lines here, it sounds like someone (likely the RIAA or some similar organization) ratcheted up the threats for not being responsive enough on takedowns — and someone up top just said “nuke ’em all, so we can claim we got rid of everything.” But that’s incredibly stupid on multiple levels.
That first paragraph above is completely nonsensical and I’ve read it over multiple times trying to parse out what the hell it means. The company admits that it isn’t giving anyone any chance to counternotice, or get takedown demands removed. In fact, it sounds like they can’t even bring back any of this content. It’s just gone. That could really suck for some users who will not have that content at all.
But then in follows up with “In consideration of this…” which sounds like it’s apologizing and going to give users back some sort of benefit… but instead, it says it’s giving those users “a warning” and telling them to “learn about copyright law.” What? What sort of absolute nonsense is that. If someone’s video was mis-identified, or the video was fair use, why should they get a warning and have to “learn about copyright law”? It feels a lot more like Twitch should learn about copyright law.
Indeed, there’s a potential argument that by deleting the videos and not allowing there to be a counternotice, Twitch got rid of the DMCA’s safe harbor. If you read Section 512(g) of the DMCA, about the replacement of removed or disabled material, it says that there is no liability for the removal of content (which makes sense) with three “exceptions” delineated in Section 2. Here’s the relevant part of 512(g):
(1)No liability for taking down generally.?
Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider?s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.(2)Exception.?Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider?
(A)takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;
(B)upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
(C)replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider?s system or network.
So it certainly appears that you can read this to say that Paragraph (1) (the no liability bit) “shall not apply… unless the service provider… replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice….” And thus, there is a reading of this that says that not replacing the material after receiving a counternotice (that is not followed by an actual lawsuit) could remove the safe harbor protections.
Of course, this may not really matter for a variety of reasons. First off, who would actually sue here? The safe harbors are from the copyright holder, but here the copyright holder is likely to be happy that Twitch has gone overboard in deleting all of the content. Second, this aspect of the safe harbor, which can be read to require the replacement of content following a counternotice has some other problems in that it can be read as forcing a company to host content. And, a website should have the freedom to not host any content it doesn’t wish to host, even if that content is not infringing.
I vaguely recall a lawsuit a few years ago on this point, though in search for it I can no longer find it. From my (apparently faulty) memory, I recall that someone challenged a website’s unwillingness to restore content after a counternotice, and the court found that a website has every right to keep a work it disabled offline. If anyone can remember which case this is, let me know.
Still, it remains somewhat perplexing that this is how Twitch handled all of this, and then claiming it would go back to “normal” DMCA processing as of the end of last week. Why couldn’t it have just kept that up this whole time?
Filed Under: counternotice, dmca, takedowns
Companies: riaa, twitch
Comments on “Twitch's Freak Out Response To RIAA Takedown Demands Raises Even More DMCA Questions”
'Anyone else feel like we just painted a target on our backs?'
Well, Twitch certainly botched that one. They not only gave themselves a PR black-eye by screwing over the creators that use their platform(which I imagine is going to result in more than a few looking for alternatives), they made clear that they will cave under the slightest bit of pressure, which will likely to result in even more threats in the future, leading to more takedowns and people looking for alternatives or not setting up shop on Twitch to begin with.
Gotta love how ‘education’ regarding copyright(much like everything else related to copyright) only ever seems to apply to one side. Someone files a bogus claim? They made a mistake, no big deal. Someone on the receiving end of a bogus claim? They did something terrible and need to be ‘educated’ in what the (fictional version of the) law says, assuming they aren’t simply assumed guilty and punished accordingly..
Yep. I sure learned my lesson about copyright law, alright. "If a copyright holder objects, my content will be arbitrarily removed, fair use notwithstanding." yay!
Re: Today's copyright is way worse than no copyright
How about we abolish copyright altogether when we abolish the justice system?
It is absolutely not serving the public in any way.
And, a website should have the freedom to not host any content it doesn’t wish to host, even if that content is not infringing.
Absolutely. I won’t argue interpretation of law, as that is for the courts to clarify or bastardize. But if you take down content for a reason, particularly under a law with wording such as this but ethically regardless of law, and your reason is bad, then you’re full of shit and should face real consequences. Kind of like employment or commercial law. You can in many places terminate employment, or refuse service, for any or no reason – except for invalid reasons, should you be stupid enough to give one or otherwise make it obvious what the reason was.
Re:
If Parler admins take down political speech they dislike for the sole reason of “we don’t like this speech”, what “consequences” should they face beyond being laughed at for their blatant hypocrisy?
Re: Re: Re:
I think what this AC was saying was that misrepresenting the law to take down content should void one’s 1A rights…. which sounds like a terrible idea to me.
Let businesses use their 1st amendment rights in ways their customers strongly dislike. In an ideal world they soon wont have any customers.
(*note: we do not actually live in an ideal world)
Re: Re: Re: Re:
Not only that, we have laws like the DMCA that are leveraged against businesses who act in ways their customers agree with in acts of coercion.
Freedom isn’t free. The best case is we each give up the same amount to ensure the most for all. Of course, there are always those who want freedom over others.
My take is that the RIAA made demands behind the scenes, and wants takedowns without the ability for users to fight back with a court case. If users can fight back, there is a risk that fair-use could be determined in a court case. And with precedent, RIAA would be completely unable to attempt these shakedowns in the future.
Re: Why didn't Bezos suppy some legal researchers
This was a major feature of Google. Google promised to run all warrants, writs or legal actions through their mill of lawyers to assure it was all in perfect order before relinquishing private data to Law Enforcement. It’s curious that Twitch doesn’t have a similar process for copyright infringement claims.
But then Youtube (which is Google) doesn’t do that on first pass with claims, but waits for a couple of exchanges between the video author and the copyright claimant before invoking its legal system.
Something something Hamilton laws so voluminous that they cannot be read, or so incoherent that they cannot be understood.
Re: Re:
"My take is that the RIAA made demands behind the scenes, and wants takedowns without the ability for users to fight back with a court case. If users can fight back, there is a risk that fair-use could be determined in a court case."
Well, yes, for those of us who remember the debates around the DMCA it was said outright by the backers of the worst versions of the DMCA that removing the ability of the users to fight back was one of the hot items on their wish list.
Safe harbor and fair use were wedged in by saner minds who realized full well that without those the DMCA would eradicate the US tech sector completely.
And ever since the RIAA and MPAA have maintained persistent legal pressure to get any judge, anywhere, to slip up and create a precedent which will render those safeguards practically inapplicable.
Wishful thinking. I wouldn’t be at all surprised if the MAFIAA claim Twitch haven’t gone overboard enough. We know they want automated copyright filters and have no morals. Why wouldn’t they grab onto a flimsy legal argument to sue Twitch over the stuff they failed to delete (or the stuff they copied before the takedown)?
The website already decided to host the content, though, or it wouldn’t’ve been present to be taken down. So forcing it’s restoration isn’t forcing the website to host any content it hadn’t already decided it would host. The problem is that 512(g) only immunizes the host from legal claims, so there’s no solid basis for arguing that they can’t change their minds about hosting the content just because of a takedown request. It still leaves users at the mercy of large organizations pulling a "Nice operation you have there. Sure be a pity if something happened to it, like us running you into the ground with baseless lawsuits you can’t afford to defend against unless you do what we want.".
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You're down to "should have" instead of absolute unqualified...
First I note that you’re down to "should have", instead of the absolute unqualified, wrongly based on 1A claim that you made here:
"And, I think it’s fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."
https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content-free-speech.shtml
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Re: You're down to "should have" instead of absolute u
Here, you’re just casually confounding free speech on Public Forums with what’s at least claimed to be another person’s copyrighted property. One’s own content is not involved with DMCA. — No, it’s NOT. Don’t bring up what you claim are "phony" DMCA take-downs, because those involve counter-assertions which may be a lie, but definitely are TWO parties.
Masnick claims that corporations arbitrarily taking down perfectly acceptable by common law speech in the new Public Forums is SAME as responding to complaint by DMCA procedure. It’s not. Period. The first is unlawful censoring by powerful forces for their own gain; the second is lawful process specified in statute.
And Maz, you are YET AGAIN unable to even copy paste! The text reads:
Re: Re:
Hey Brainy, quick question: How can a corporation control and enforce a copyright when you believe corporations have no legal rights, and how do you feel about corporations using copyright to censor speech?
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And Maz, you are YET AGAIN unable to even copy paste!
The text reads:
yet you expand it as you must think intended:
Okay, that’s a quibble, but yet again, what should be copy-paste has actually passed through your brain and been changed. You even write "in" when surely mean "it".
Now, please note the phrase "service provider’s good faith. Your misquoting above and that phrase — as a requirement before corporations are authorized to take action — gives me cause to again note that in supposedly quoting Section 230, you simply DELETED the "in good faith" requirement!
https://www.techdirt.com/articles/20190201/00025041506/us-newspapers-now-salivating-over-bringing-google-snippet-tax-stateside.shtml#c530
In that latter instance, you clearly intended to change the meaning of statute so that I wouldn’t point upt the "in good faith" phrase. That was OUTRIGHT FALSIFYING. Corporations are required to act in "good faith" to The Public. Period.
Re: And Maz, you are YET AGAIN unable to even copy paste!
W.T.F are you on about?
If you are going to go on crazy trolling rampages can you at least write hilariously terrible arguments instead of this raw word stew*?
I mean why are you blathering about CDA 230? the article doesn’t mention it. This is a DMA/copyright thing. CDA 230 doesn’t cover copyright at all.
Furthermore what ever logic may exist in your argument, it’s very hard to follow.
(* yes I know most people would say ‘word salad’, but it’s clearly a charred mess, even though it hasn’t been cooked properly. Very perplexing)
Re:
Show me the law, statute, or “common law” court ruling that says so.
I’ll wait.
Re: Re: Re:
please don’t (wait that is).
I think the time frame is approximately "forever". People need to eat (and do other things).
Re: Re: ACB confirmed
If anything might have indicated corporations might be required to act in good faith before, it’s about to be interpreted otherwise now.
Re: Re: Re: ACB confirmed
Now that I think about it: Doesn’t the mere existence of Anti-trust laws, and Trademarks lend credence to the prospect that there is no such "law".
Re: Re: Re:2 Anti-trust
Anti-trust laws indicate there’s a means to address anticompetitive practices. However anti-trust laws have not been actually used for non-political purposes since the Reagan era (to dissolve AT&T, I think.)
This is why it doesn’t surprise me the current anti-trust suit of Google doesn’t actually address Google’s anti-competitive practices.
But it does reveal the failure of the US justice system to do anything resembling justice.
Re: Re: Re:3 Anti-trust
Essentially, the difference between justice and injustice is malice from within. Good faith is the exact opposite of malice, but US society never enforces it.
Then the US wonders why everything is so corrupt….eyeroll.
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Had to go "AC", and piece it up (got a bit awry).
Because Maz seems to have unusual blocking on this, practically to okaying each. — I don’t know and Maz won’t say, but from my end looks exactly like trying to block comments, not "spam" because the exact text will still go in. It’s at best RANDOM, not any key words — Though going "AC" often helps! WHY is that, Maz?
Readers should know that six or so attempts that got the lying "moderation" notice will never come out. They never do, so I just repeat the process. And though near always works that I get through, whatever random blocks have been in place for years!
Re: Had to go "AC", and piece it up (got a bit awry).
This sure looks like spam to me, maybe you keep hitting the spam filters (which I have never seen, and so can not even confirm they actually exist despite being an AC that often pours out drivel here) because your messages are spam-y?
The missing piece of this puzzle…
… is that Twitch is not a video hosting site. Its main purpose is live streaming. Clips are a minor feature that most people don’t even use at all, and if they decided it’s easier to just get rid of it entirely, it would have a very small impact. So my guess is, in this case, they decided it wasn’t worth the bother.
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Re: Lalo Martins or Fernando Martins...
Oh, look! Another ZOMBIE with 30 month gap between 1st and 2nd comments, and can’t settle on a name!
Lalo Martins or Fernando Martins, 12 comments, 1.5 per year average since Sep 4th, 2012 https://www.techdirt.com/user/lalomartins
Guess Timmy Geigner thought needed a bit more to make it look as though is any interest here. — Seems that every time I point up zombies as did last week, the number of comments plunges, slightly supporting that many are just plain astro-turfing.
Re: Re: trolling
Go away, troll. If you have a problem with the site, nobody is forcing you to open it. So what if I only comment when I feel I have something to add? I wish more people did the same. My online presence is easy enough to find and you’ll find it’s 100% consistent with the views expressed in my comments.
If it serves as additional proof to help clean the site of trolling, I’ll tweet mentioning this incident in a few minutes.
Sheesh.
Re: Re: Re: You'd have better luck talking to a wall, they don't lie
Don’t mind(or bother to humor) Woody, they’ve been running with that particular conspiracy theory for years now, either unable or unwilling to understand that not everyone is as obsessed with the site as they are and as such claiming that anyone who isn’t a regular commentor simply must be part of some grand conspiracy.
Best response is simply to flag and then ignore them, as trying to engage with them is a waste of time due to their dishonesty and derangement.
Re: Re: Lalo Martins or Fernando Martins...
"Oh, look! Another ZOMBIE with 30 month gap between 1st and 2nd comments…"
Still trying to turn a whole community into an army of sock puppets since that fits your desired narrative better than you just being a deranged moron hollering into the rising wind of public opinion, eh?
As I’ve said before when you accused me of the same, multiple times, some people have real lives where changing a job, moving, family issues and the other odds and ends of actual working life crop up from time to time tends to force people to reprioritize the uses to which they put their spare time.
Other people again, like Lalo Martins, appear to have a rich and persistent history on other platforms and only show up to comment here on the occasion where those other platforms re-link to this forum.
But, Baghdad Bob, I guess you still have no actual idea what real life looks like, given that every argument you posit is founded in a deranged mess of reality denial and history revisionism.
Re: Re: Re: Lalo Martins or Fernando Martins...
Woody has a 30-month gap between neuron signals.
Re: The missing piece of this puzzle…
"… is that Twitch is not a video hosting site. Its main purpose is live streaming"
But, streams are retained for on demand streaming for a limited time.
Re: Re: The missing piece of this puzzle…
Sure, but my point is the video aspect has a very small impact on their business, and that of the streamers.
(Also, AIUI, this is not about the archive videos, but the ‘clips’ feature, which allows viewers to save and share segments of a stream. It’s cool, but wouldn’t be missed that much if it disappeard entirely.)
Re: Re: Re: The missing piece of this puzzle…
Sure, I just wanted to make it clear that there’s use of their archives, and thus not a live broadcast. There’s a couple of podcast related live streams I watch regularly on Twitch after broadcast as time zones means that I usually can’t follow them live. I might not be in the majority with that use, but in my case it’s a main reason I use the site. Without it, it would be useless due to the above.
Clips are a different beast, but the notice above does also mention VODs, which I presume refers to what I’m talking about.
The user could sue Twitch for damages over improper removal of the material not in accordance with DMCA safe harbor requirements. Not saying they’d succeed, but who knows…
Re: Re:
They’d lose, badly, and were I in Twitch’s position there I would be mighty tempted to kick them off the platform entirely as a legal risk after a stunt like that, which would make the lawsuit not just a short-term loss for the user but a potential long-term one as well.
Twitch chose the lesser of liability evils
I do not necessarily agree with the analysis of the article in terms of "re-applying" liability. However, even if it did, liability existed, it would be to the user and not the RiAA. And, of course the user has agreed to the TOS which no doubt waive any claims as against Twitch. So, not a great result for the public but perhaps an understandable choice by the company.
Here's how it works: Soundtrack by Twitch
1) To cave is the same approach taken by RedBubble et al.
2) Twitch clips are used to help LIVE streams go viral.
3) The cynic in me notes the quick advert, "launching a free way to stream high quality music on your channel, Soundtrack by Twitch."
What better way to ensure uptake of their new FREE audio service: Protect your content from DMCA takedown removal.
It goes both ways, twitch is deleting videos,
But it’s not registering a copyright strike against users, if a users gets 3 strikes then they will no longer be allowed to be a twitch partner.
Twitch is the no 1 website for streaming video games, you can watch live or watch old vod streams later
It looks like twitch all of a sudden got 100s of dmca notices from the riaa over music played in old videos so it thought the simple solution was to delete them.
YouTube is not perfect but at least it has a
proper legal mechanism for responding to dmca notices and it sends info to its users,
Eg you got dmca notice re music played at 10 minute point in video post on a certain day etc
from company x
The user has a chance to dispute the dmca claim
Most streamers prefer to stay with twitch because its the best platform to make money
fans can subscribe to streamers and send them tips
YouTube does not seem to work as well as twitch in the area of livestream gaming
or it does not have the community
that twitch has to provide an audience for streaners
I wonder why copyright is automatic for everyone but streamers themselves. I get tvat they cant sue twitch as the platform that hosts them because of the way the terms of service are structured but what about the RIAA who caused the destruction of those streamers content who also has copyright of its own? Having a little music on the background does not eliminate Twitch’s nor the streamers copyright for the content they made. To me the destruction is an irreparable harm that could be proven in court. I guess that watching the RIAA twist itself into a pretzel of a legal argument trying to say its copyrights has value while the streamers don’t. That would pai.t a bizarre picture of hipocrisy for the judge.
Re:
Therein lies the problem: To prove it in court, someone would have to expend a lot of time and money for the sake of proving it in court. The average streamer doesn’t have that, and Twitch execs/lawyers would likely prefer not to use its own.
Everybody know western is…………………………………………
anyway, is trump still jealous with the world’s most annoying face that’s so seductive to be trampled on?
First, off it is clear all the DMCA notices are going out from the influx of DJ’s that have come to Twitch to stream music sets without. They still believe music is considered public domain which is a joke. If you look at the notices from the DMCA pre-covid DJ’s hardly any notices. The DJ invasion ship landed now the music industry is noticing all this activity. Plus, Twitch has always gotten away with no music license agreement with the big 3 Sony, Warner and Universal. If I believe Facebook gaming has a deal with the big 3. Now, it is up to Twitch to decide what they want to do plus if Amazon see’s this as an opportunity to cash in like they have been doing they will find out how to make it work. Don’t be surprised in the future if Amazon charges a subscription rate. It is pretty sad if and when this pandemic gets under control Twitch is likely going to be a desert with hardly any DJ’s with them going back to the Live Music circuit. I hardly doubt they are going to care what they have caused with all the DMCA activity probably caused by them. Just like I heard one DJ said before if Twitch does down they will find another platform.