March 3, 2021

INFRMER

KEEPING YOU INFRMED

How the COVID-19 relief bill could change the future of game livestreaming in the US


US livestreamers may see major changes to their business model as a result of legislation in the COVID-19 relief bill.

The Consolidated Appropriations Act of 2021, which passed late Monday, contains several measures that are meant to serve as relief to Americans during the COVID-19 pandemic, such as issuing a second stimulus check.

However, an amendment introduced today that included unemployment extensions also drew upon recent legislation from Sen. Thom Tillis (R-NC). His proposals would create a small-claims board for copyright issues under US law, as well as a much more severe criminal violation for streamers who broadcast copyright-protected works. It changes the charges for illegally streaming copyrighted material from a misdemeanor to a felony. Violations could be punished with up to 10 years in prison.

Here’s the specific section of the 5,593-page relief bill with potentially gaming-related consequences:

“It shall be unlawful for a person to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service that— (1) is primarily designed or provided for the purpose of publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; (2) has no commercially significant purpose or use other than to publicly perform works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law; or (3) is intentionally marketed by or at the direction of that person to promote its use in publicly performing works protected under title 17 by means of a digital transmission without the authority of the copyright owner or the law. ”

As noted by Kotaku, Tillis calls this measure the Protecting Lawful Streaming Act, a bipartisan measure that’s aimed at “commercial, for-profit streaming piracy services.” His stated intention is that this measure is specifically targeted to “not sweep in normal practices by online service providers, good faith business disputes, noncommercial activities, or in any way impact individuals who access pirated streams or unwittingly stream unauthorized copies of copyrighted works.” This could be used to shut down, for example, pirate sites that rebroadcast torrented copies of new movies with an ad overlay.

Here’s commentary from David Graham, an esports attorney:

Still, as it’s written, this could be a substantial blow to the programming featured on Amazon’s Twitch service, Google’s YouTube, and Facebook Gaming, as well as smaller broadcasting and video platforms. Much of the content on modern livestreaming platforms still involves live gameplay, much of which at any given time isn’t endorsed by the owners of these games so much as it’s gently tolerated.

While the sheer size and international focus of a site like Twitch would make the new law logistically difficult to enforce, and there’s room to argue that the new legislation wouldn’t apply to Twitch or other livestreaming platforms in the first place, its wording in the bill as above is vague enough to open some troubling doors for game streaming.

This new legislation comes at the end of what’s turned out to be both a very successful and difficult year for Twitch in particular, which is simultaneously enjoying a massive spike in audience numbers and dealing with an equally massive number of Digital Millennium Copyright Act claims from the American music industry.

Starting last summer, the Recording Industry Association of America (RIAA) began to file DMCA strikes against archived content on Twitch at a tremendous pace, targeting videos and clips that contained, or at least what they suspected contained, unlicensed recordings of copyrighted music. According to Twitch, the RIAA sent three times more takedown notices to Twitch in June of 2020 alone than it had over the course of the previous three years.

Rep. Alexandria Ocasio-Cortez played Among Us live on Twitch on Nov. 28 with several high-profile streamers. (Twitch screenshot)

This eventually got to a point where, in order to purge its backlog, Twitch summarily deleted many users’ video archives in October rather than contacting them individually. This included high-profile creators such as Imane “Pokimane” Anys, fresh off participating in Rep. Alexandria Ocasio-Cortez’s (D-NY) record-setting Among Us stream, who reportedly lost four years of recorded content with no way to recover it. Twitch later feels out a mass email and blog post in early November to apologize and explain the situation, but has been distinctly scrambling ever since.

What this serves to highlight, as unpleasant as this is to discuss, is that most of the livestreaming industry is built on gaming-focused content, which in turn is built on what’s technically copyright infringement. Many individual streamers may have endorsements or be outright brand ambassadors, and several high-profile game publishers like Devolver Digital have gone so far as to register entire domains to make their stance on the subject as clear as possible. But there is a lot of content on Twitch at any given time that, on paper, is an explicit violation of copyright. There’s just so much of it happening at any given time that a creator who actually wanted to do something about it is spitting into the wind.

Speaking of Ocasio-Cortez, here was her take on the relief bill:

Some modern releases are also actively harmed by whatever streaming scene they might have, usually because they’ve got some sort of big narrative twist. If a given game hinges on something that would be ruined by spoilers, ie a shocking character death, then someone who watches a free livestream of the game now has much less of a reason to buy it. This is an issue that a lot of developers are trying to confront, through specific embargos – I’ve received preview code for a couple of games this year that came with a substantial amount of legalese that effectively said “don’t spoil this on Twitch or we’ll cut you ”- or open gentlemen’s agreements with the streaming community.

These dark sides to Twitch fame have been buzzing around the margins of the games industry for a while now. It’s simple: making video games in the 2020s comes with the notable drawback that if your game is enough of a hit, it will inevitably be made into grist for the content creators’ mill, and neither you nor your company are likely to ever directly see a dime from that. It might translate into higher sales, maybe, but you’re still working to make someone else famous. It’s a bitter pill to swallow. Not only is the games regarding industry dealing with its own persistent issues labor, unionization, and “crunch,” but the game you put years of your life into is now making fat stacks for some YouTuber who’s been stuck on the tutorial mission for 30 minutes and is acting like it’s your fault. If this was any other form of media, this would be a clear-cut case of infringement.

InnerSloth’s Among Us went from a cult game to a mainstream success in the summer of 2020, largely due to popular streamers suddenly picking it up. (InnerSloth Image)

The counterargument is that many hit games from recent years wouldn’t have gotten as big, or at least wouldn’t have grown as quickly, without the attendant publicity from their streaming scene. This year’s rags-to-riches story in games, Among Us, went from a 2018 dud to a 2020 megahit because it’s a nearly perfect Twitch experience, and Fortnite wouldn’t have taken over the planet as quickly if not for high-profile streamers such as Ninja.

As a result, the games industry has evolved to take advantage of this. Content creators are often treated by game marketers like independent journalists, and many are offered the chance to play early versions of games for their audiences. Those audiences in turn often base their game purchases on what they’ve seen of the game from their favorite streamers. Many big publishers and PR firms these days have a specific position, usually called Influencer Relations, for the purpose.

Many companies have also made it clear in writing that they don’t mind if creators use their games to create monetized content. For example, Riot Games, the developer of the international hit League of Legends, has specified that it doesn’t mind noncommercial use of its IP (ie fan art) at all, and conditionally allows streamers to gather ad revenue and viewer donations from League-related broadcasts.

Other companies, conversely, treat streaming as a necessary evil, if they acknowledge it at all. Nintendo in particular is famous for having its lawyers on speed-dial; it used to come down hard on Let’s-Players in the early days of that scene, and recently made a few headlines for forcing a NSFW content creator who went by “pokeprincxss” to rebrand herself.

As a result, the relationship between streamers and the games industry is tricky, and best discussed on a company-by-company basis, but it did seem to have settled into an informal detente over the course of the last year or so.

Now, it appears that American streamers on Twitch, Facebook Gaming, and elsewhere could potentially enter some legally complex territory courtesy of Sen. Tillis and the RIAA. 2020 was a big year for livestreaming, but 2021 is starting off with some complications for the scene. This is a lot more likely to start a fight than criminalize game streaming, but one way or the other, Twitch is in for some changes.

We’ve reached out to Twitch for comment, and will update this article when we hear back.




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