How the DMCA Affects Creators on Twitch, YouTube, and Facebook

7 minute read

Creators are likely familiar with the DMCA (Digital Millennium Copyright Act) in the context of takedown notifications and copyright strikes, but it is important to understand how the law actually works in order to safeguard your content.

How the DMCA Works

What is Copyrighted?

Works are automatically copyrighted the moment they are put into a fixed and tangible medium. This includes recorded songs, uploaded videos, artwork both physical and digital, and any other creative work, whether they are registered or not.

There are some exceptions. Mere ideas can’t be copyrighted, because the work must be tangible. Items in the public domain, like government works or anything published before 1923, are also free of copyright.

In general, you should assume that all works are copyrighted, unless you have a specific reason to know that a work is copyright-free.

If a work is copyrighted, distributing it — even if you paid for it or it is available for free — is copyright infringement.

Before the DMCA, both the user who uploaded the content as well as the platform who hosted the content would both be liable to the copyright holder. To keep from being sued, sites like Twitch, YouTube, and Facebook would need to moderate all of their user-submitted content for copyright violations, and so would likely not exist.

The DMCA

The DMCA (Digital Millennium Copyright Act) has many provisions, but the part most relevant to streamers is Title II, called the Online Copyright Infringement Liability Limitation Act (“OCILLA”).

This part of the law created what is called a “Safe Harbor” protection that prevents platforms from being sued by copyright holders, as long as they comply with certain requirements.

Safe Harbor

The law refers to the platforms that accept user-submitted content as “Online Service Providers”, or OSPs. To be protected from lawsuits based on their users’ uploads, OSPs must follow two key rules:

First, if they receive notification about alleged copyright infringement hosted on their servers, and that notification complies with the requirements of the law, they must immediately remove or disable access to the material. Second, they must take action to block repeat infringers.

After it removes material, the site must notify the user, who then has the option to file a counter-notification. After which the copyright holder must file a lawsuit against the user for infringement, or else the site will restore the content.

Importantly, at no point must the site make a decision about the legitimacy of the copyright claim, or the strength of the defense. They must simply act promptly to remove or restore content when they receive a notification or counter-notification, and inform the other party.

Non-US Users

Because the DMCA applies to sites and not to users, creators from outside the United States are still subject to DMCA takedowns and copyright strikes. If a website has servers in the United States, it must comply with any takedown notice it receives, even against users from other countries.

The provision about repeat offenders is what has given rise to the concept of “copyright strikes”. There is no mention of strikes in the DMCA; it is simply a system that some sites use to identify repeat infringers. Any policy about the number of strikes that result in a suspension or the time it takes strikes to expire are policies of the site itself, not of the DMCA.

For instance, although all three sites have policies against repeat copyright infringement, YouTube and Twitch have explicit three-strikes policies, while Facebook does not. Additionally, YouTube strikes expire 90-days from when they were issued, while Twitch strikes have no defined expiration date.

The DMCA is not specific on how sites must comply, only that they take action against repeat infringers, which each site implements slightly differently.

How to Comply

If you do not have explicit permission to use a particular work from the person or organization that you’re sure is the proper copyright holder, assume that you cannot use the work in streams, videos, emotes, channel art, or any aspect of your content.

Asking for permission is always an option when it comes to legally using copyrighted works — just make sure the permission is actually coming from the legal copyright holder. For example, a band may offer permission to play their songs, but if a particular recording is owned by their label, and you play that recording, you will have committed copyright infringement unless you also secure permission from the label.

Derivative Works

Derivative works incorporate major elements of a copyrighted work, but stand on their own as separate pieces of expression. This can include things like fan art, music covers, or video game streams; each of them relies heavily on another copyrighted work, but include enough additional creative expression to be independently copyrightable.

A derivative work made without permission, however, is still copyright infringement (with some exceptions, such as Fair Use discussed below). For an example of how this would work, consider the following scenario:

Nintendo created and owns the rights to the character Mario. If an artist makes an unauthorized piece of fan art of Mario and sells prints, they would be liable to Nintendo for copyright infringement. If another person comes along and copies the artist’s fan art and starts selling it on shirts, in addition to infringing Nintendo’s copyright, they are also infringing the artist’s copyright, even though the drawing was unlawful. One act of copyright infringement does not forgive another, because derivative works are still copyrighted.

Fair Use

In some cases, a copyrighted work can be used legally without permission. The circumstances are narrow, and the bar for Fair Use tends to be higher than most people think.

There is no single fact that can be used to definitively determine whether or not you are using a work within the limits of Fair Use. Courts will consider four major factors, which are discussed in greater detail in the Fair Use article here. One factor is whether your use is commercial and generates profit. However, commercial uses can still be Fair Use, and works that make no money can still be copyright infringement; it depends on the other facts of the situation.

But if you receive a DMCA takedown notice and are considering a Fair Use defense, remember that neither Twitch, nor YouTube, nor Facebook, nor any other platform determines whether your use was fair or not: a court does. If you are planning to assert Fair Use, you must be prepared to do it in a courtroom. It is a very fact-specific inquiry, and one that artists usually plan carefully in advance, often with the assistance of attorneys.

Make sure to fully understand the scope of your project and the limits of Fair Use before you decide to rely on it. Further reading on Fair Use is available here.

Receiving a DMCA Notice

If you receive a DMCA takedown, the first thing to do is relax. If it is your first one, most platforms will not respond by closing your account. Read the e-mail you received closely, as it will probably give you information about what you need to do going forward, and what the consequences may be.

Remember that no platform — Twitch and YouTube included — examines the claims made in takedown notices or counternotifications. The law requires them to forward any properly submitted notice to the other party, and they make no determination as to their legimacy.

Remove infringing material

The platform may have already removed the infringing material, but if it has not already been removed and you don’t intend to challenge the takedown, you should remove it yourself. Although the copyright holder could still file a lawsuit against you for infringement, if they have gone the route of submitting a DMCA complaint, it probably indicates that they aren’t interested in suing you — especially if you comply promptly.

Counter-Notification

If you believe that the material that was identified as infringing does not actually contain the work claimed, or that you have a legitimate right to use the work either because of a license or a Fair Use claim, you can submit a counter-notification. You may also assert that the copyright claim did not come from the legitimate owner, which is a risky defense unless you’re sure, because sometimes copyright ownership can be held by seemingly unrelated companies.

Follow the proceedure outlined in the takedown e-mail to file a counternotification. If no process is outlined, sending your counter-notification to the proper DMCA agent identified on the platform’s website (such as copyright@youtube.com or dmca-notifications@twitch.tv) will suffice.

Avoid future infringement

If your past videos or broadcasts contain any infringing material, you should remove those as well. Past content can still receive future strikes.

How the DMCA can help you

The DMCA isn’t only a tool that big record labels use to stop music streaming; it’s also something you can use to protect yourself from people infringing your copyright.

If your art is being used without your permission as a t-shirt design, or a Twitch emote, or in any other unauthorized way, submitting your own DMCA takedown notification is a much easier and less expensive alternative to court.

Every website that allows user-uploaded content should have a link to their DMCA policy somewhere. Follow the procedure to submit a takedown notification, or submit your own letter, making sure to include all of the legally required information. Following a template may be helpful.

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