Twitch DMCA “Bloodbath” Trades Copyright Strikes For Due Process

[Anna Kushina (櫛名アンナ)]

A large number of Twitch users have had their videos deleted following a new round of mass DMCA notice processing. Twitch has also imposed an interesting 'deal' on those affected. In exchange for removing their ability to file a counternotice, Twitch won't be placing a copyright 'strike' against users' accounts. A fair 'amnesty' deal or a coach-and-horses through due process?

During the summer there was uproar when Twitch users were suddenly bombarded with copyright notices for content uploaded between 2017 to 2019.

Unsurprisingly, the claimant was listed as the Recording Industry Association of America (RIAA), an organization well-known for its aggressive stance towards those who use its member labels’ content without obtaining an appropriate license.

Aside from the notices themselves, the greater problem was Twitch’s “repeat infringer” policy, which states that if users receive several copyright complaints under the DMCA, they can be permanently banned from the platform. Twitch doesn’t say how many will trigger a ban but under normal conditions, it’s believed to be three.

In common with similar platforms, Twitch adopted this stance to avoid becoming liable for its users’ infringements. However, the earlier advice for users to quickly delete everything on their accounts that may be infringing to avoid a ban didn’t sit well with the company’s customers.

The Second Wave – AKA “DMCA Bloodbath”

After the chaos in June, there was a general feeling that the worst may be behind the site’s users. Late yesterday, however, a fresh development indicated that was not the case. Gamer and esports consultant Rod Breslau (aka ‘Slasher’) took to Twitter to reveal that a second wave of DMCA notices had hit Twitch, with devastating consequences.

“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,” a copy of a notice from Twitch reads.

The first point of interest here is that Twitch didn’t tell anyone affected by these mass deletions what content was removed or what users did wrong. That deviates from the accepted standard practice of notifying users that “Content X infringed content company Y’s rights” and that’s why it was flagged.

At least ordinarily, this information would provide users a platform from which to fight back, if the claim against their content was incorrect or at least contentious. However, Twitch effectively removed any opportunity to respond by imposing a new albeit temporary system for handling DMCA complaints.

Twitch Trades Due Process For Not “Striking” User Accounts

By not providing the information outlined above, Twitch clearly knew there would be problems among its userbase. So, what it appears to have done is sweeten the pill with a quid pro quo.

“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 consideration 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,” the notices continues.

Effectively, Twitch has denied any opportunity to contest DMCA notices on fair use grounds, for example, by imposing a “warning” instead. This warning does not appear to be a copyright strike, meaning that it won’t add to a user’s tally of strikes which accumulate and ultimately end in a ban.

More controversial, however, is that there are claims that the Audible Magic recognition system used by Twitch isn’t working how it should.

“Audible Magic is misidentifying music,” a Twitch user reported to the company on Twitter last night. “The proof in that pudding is my vods from last night that was muted with music that (the track and artist appeared in an onscreen ticker) was cleared for use on stream and is an original work.

“An example based on the immediate past: You run Audible magic against highlights and clips. Those Highlights and Clips have music that is misidentified as DMCA applicable. By auto-deleting this content you remove our ability to correct that and keep the content,” he added.

Can Twitch Delete Content and Deny Counternotices?

While large volumes of users are currently distraught at the actions of Twitch and the deletion of their content without a fair hearing, a close look at the company’s terms of service reveals that, completely unsurprisingly, it can delete whatever content it likes, when it likes, and for any reason.

It doesn’t even have to be infringing either, that’s just one of the options.

“To the fullest extent permitted by applicable law, Twitch reserves the right to remove, screen, or edit any User Content posted or stored on the Twitch Services at any time and without notice, including where such User Content violates these Terms of Service or applicable law, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Twitch Services at your sole cost and expense,” its ToS reads.

Since Twitch can delete whatever content it likes at any time, that seems to negate any user ‘right’ to know anything about the claims against them, which in turn prevents them from filing a counternotice. And, since Twitch is essentially giving any actual infringers a free pass this time around (which in the case of multiple strikes could’ve meant an account ban), the company has not only covered its bases but also attempted to sweeten the deal.

It didn’t have to, of course, but has wisely offered something. Nevertheless, that is no consolation to those users who have had their content deleted on dubious grounds and have no means to contest the action.

Was the Second Wave ‘Bloodbath’ a Surprise? Not Really

Back in 2014, Twitch announced that it was voluntarily taking measures to protect broadcasters and copyright owners. To this end, Twitch revealed it had partnered with content recognition/anti-piracy company Audible Magic, adding that by doing so it was assuming “no liability for the actions of its users.”

Fast forward to June 2020, during the first wave of DMCA notice fallout, Twitch quite clearly said that its work with Audible Magic would be “extended” and all but confirmed that the deletions of this week were already expected several months ago.

“First, we will begin the work to extend our use of Audible Magic to identify existing clips that may contain copyrighted music and delete them for you without penalty. Over the coming months, this will cover newly created clips as well,” Twitch said.

First, we will begin the work to extend our use of Audible Magic to identify existing clips that may contain copyrighted music and delete them for you without penalty. Over the coming months, this will cover newly created clips as well.

— Twitch Support (@TwitchSupport) June 11, 2020

So, the big question remains – what can users do faced with this scenario? If history is anything to go by, not very much.

Twitch is Not Your Platform and Copyright Holders Come First

The bottom line here is that while millions of Twitch users call the platform home, Twitch is not their site. While the site relies on streamers to make it a viable business concern, they are merely guests who agree to be bound by a strict set of rules that are entirely in the favor of the platform itself.

Furthermore, like YouTube and even ISPs in the United States, Twitch faces the prospect of being subjected to aggressive legal action if it fails to deal with repeat infringers appropriately. Given that the RIAA is behind most of these liability lawsuits, protecting the record labels’ copyrights must be high on the Twitch agenda.

It therefore seems probable (if not likely) that Audible Magic has effectively identified many thousands of repeat infringers on Twitch, so in preference to banning them all, Twitch has chosen to delete their content in a mass purge instead.

Whether this was carried out with the stated or tacit support of the labels is unclear but the possibility of this being a ‘reset’ or catch-up move seems relatively high, particularly given that Twitch says it will revert to its regular DMCA process later this week.

Source: Torrentfreak.com