Editorial: Amazon Acquires TwitchTV – The Solution to Twitch’s Copyright Woes?

Amazon recently acquired Twitch TV. Is this the solution?

Recent changes in TwitchTV’s copyright policy has caused something of an uproar in the streaming community, more proactive policing of the use of copyrighted music has caused numerous streams (and their existing VODs) to have their audio muted to prevent a copyright claim based upon the unauthorized use of music.  Before we get up in arms over this policy, a quick aside on copyright law might be in order.

One of the exclusive rights granted by copyright law is the right to publicly perform your work.  The “public” limitation is the reason that you can’t be sued for playing a new album in your house to your guests.  When you invite a few hundred (or thousand) strangers to watch you stream your gameplay, however, the public/private distinction becomes pretty clear – this is now a public performance.  Yes, that also means that the playing of the game itself constitutes a public performance (and is therefore copyright infringement!), but the developers of many popular games have issued blanket licenses allowing streaming, but that’s another conversation for another time.  Those developers, however, have no authority to grant their streamers the right to, for example, add Pandora-provided music to their stream.  It therefore follows that Twitch has been well within its rights to step up its policing efforts to prevent lawsuits from the major audio distributors, like BMG or EMI.

Speaking of BMG and EMI, that brings us to the whole “point” of this analysis – with Amazon’s acquisition of TwitchTV, the policing of copyright claims through the Digital Millennium Copyright Act (DMCA) becomes even more important – those are some deep pockets, which is a powerful incentive for the legal departments of these music distributors and copyright holders.  So, what is Amazon/Twitch to do?  One solution would be the further restriction and policing of streaming content.  Naturally, this will not be popular, especially within an industry with some incredibly passionate and vocal fans.  Push too far with content restrictions and Twitch would likely find itself the target of the ire of thousands of gaming fans. 

Another solution is far simpler, and would likely only further legitimize the growing streaming industry. Amazon paid a staggering $1.1 billion for Twitch, so there is clearly money to be made.  Amazon need only engage the major music distributors and work out a licensing arrangement by which streamers may publicly perform their copyrighted works alongside their game of choice.  This sort of arrangement is not entirely unprecedented, public forums like bars, theme parks, and malls often enter into licensing arrangements for the use of music on their premises, avoiding infringement on public performance grounds.  In the end, for better or worse video game streaming is now part of Amazon’s business model – time for this infant industry to grow up.

-Patrick McDonald