On July 27, Félix “xQc” Lengyel watched a YouTube clip of a badminton match from the Tokyo 2020 Olympics before a Twitch audience of over 50,000 viewers. For most of the video’s more than 10-minute duration, Lengyel’s mouth was agape in astonishment. “Ahhhh!” he yelled as one badminton player dove for a lightspeed save. “He’s doing splits!” What Lengyel’s improvised commentary lacked in expertise, it made up for with enthusiasm. The next day, the International Olympic Committee got him suspended from Twitch.
With over 9 million followers and concurrent viewer counts that regularly break 100,000, the often controversial Lengyel is by many measures the livestreaming platform’s biggest star. (Twitch is owned by Amazon, whose founder, Jeff Bezos, also owns The Washington Post.) When Lengyel’s Twitch channel was disabled late last month, it came in the wake of what he and other streamers call a “DMCA”; an organization (in this case, the IOC) invoked the 1998 Digital Millennium Copyright Act to require Twitch to take his channel offline to avoid being held responsible for his copyright violation. The past week on Twitch has been defined by Lengyel’s decision to contest that DMCA — to, in effect, challenge the Olympics.
“This is transformative content, this is fair use, and this is not what [the Olympics] claim it is,” he said during a Twitch stream on Aug. 1 after he returned from his suspension. Ever an entertainer, he continued by teasing that “if this escalates, it’ll get crazy” and cackling faux-incredulously at the suggestion that a court case could "cost millions.” Lengyel declined to comment for this story.
In an email sent to The Washington Post Saturday, the IOC press office explained the decision to issue the takedown notice, writing that revenue derived from the sale of exclusive broadcast rights to its media partners was necessary in order to hold the Olympics and that “[u]nauthorised streaming of the Games puts the funding of the Olympic Games and the Olympic Movement as a whole at risk.”
“When streamers post footage of the Games without the IOC’s permission, it not only infringes the IOC’s copyrights and the broadcast partners’ exclusivity, but also threatens the IOC’s relationships with its broadcast partners and the revenue that the IOC can generate and reinvest in sports,” the statement read. “In this instance, the IOC issued a takedown notice to a video posted on xQc’s Twitch channel because he streamed worldwide hours of footage of the Games without permission from the IOC’s [sic] or the rightholding broadcaster’s and without any other legal justification.”
Lengyel’s decision to push back against the sporting behemoth — in league with a controversial social media-savvy lawyer — has jump-started a conversation among streamers about the nature and future of fair use. Some fear that a potential case could go sideways, jeopardizing the entire ecosystem. But on Twitch, everything, even panic about supposed existential threats, is grist for the content creation mill.
A suspension becomes a spectacle
According to the U.S. Copyright Office, in order for a work to be deemed transformative, it needs to “add something new, with a further purpose or different character” and "not substitute for the original use of the work.” Does the act of talking over a prerecorded sporting event and sporadically pausing it to add further commentary fit that bill? Do palpable enthusiasm and a gargantuan, interactive chatroom add enough to an experience to transform it? The IOC, an organization with a $12 billion NBC broadcast deal and a history of pursuing legal claims against everything from merchandise makers to pizza restaurants, does not seem to think so.
In the past year, DMCAs have become a common occurrence on Twitch, largely thanks to the music industry. Twitch streamers regularly play music during their broadcasts; with Twitch now rivaling major television networks in terms of viewership, music labels want a slice of the pie or, failing that, for offending content to be removed. Twitch, in turn, has removed thousands of archived broadcasts in the past year alone, upsetting streamers who feel the company failed to keep them from getting caught in the crossfire of an inter-industry conflict.
Twitch would not exist without copyright infringement. Every time somebody broadcasts themselves playing a video game and commentating over it, they are technically airing copyrighted content. But while video game companies have come around to the upsides of this — interest from popular Twitch streamers can boost games’ sales — other industries still aren’t sold. As a result, content creators swear by the doctrine of “fair use,” believing that without it, everything they’ve built would instantly crumble to dust.
Increasingly, other industries like television have also started to take aim at Twitch, employing automated technology that scans archived broadcasts as well as streams that are live and in-progress. Lengyel says he got hit with one such “live DMCA” on July 28 during one of multiple streams in which he watched videos of the Olympics. But he also contends that he — and, by extension, other streamers who have received suspensions — did not break the rules, and his legal team is backing him up.
“We discussed all options with Félix, and he is confident, as are we, that the content in question was fair use,” wrote Ryan Morrison, a gaming-focused talent agent and attorney who represents Lengyel, in a statement on Twitter earlier this week. Morrison, who has a sizable social media following, is an influencer in his own right, which has raised questions about his motivations for backing (and hyping up) Lengyel’s DMCA dispute. “When you counter a DMCA, the rights holder’s only option is to sue you. … Félix is taking on an incredible risk to stand up for what is right here.”
DMCA counter claims are not lawsuits but rather declarations to Twitch and the companies involved that the initial DMCA was not justified and should not count against streamers in their Twitch careers. In Lengyel’s case, it allowed Twitch to reinstate his channel mere hours after taking it down, when the suspension for this type of violation normally would have lasted two days. Now the ball is in the IOC’s court. It can either sue Lengyel in retaliation, or, as Morrison wrote on Twitter, “let this die.”
This hasn’t stopped content creators on Twitch and YouTube from going with a more sensational, less accurate version of the story: that Lengyel is taking the IOC to court. On YouTube, a quick search yields countless videos with some variation on the title “xQc is suing the Olympics.”
Among content creators who do not buy into this false premise, the situation has prompted frenzied discussions even as lawyers question the likely impact of the case. Imane “Pokimane” Anys, the most popular female streamer on Twitch, questioned Morrison’s apparent decision to represent Lengyel as both his attorney and his agent. (Morrison told The Post that in a hypothetical court case, Lengyel would “be working with litigation counsel and partners” rather than himself.)
Veteran YouTuber Ethan “H3H3” Klein also dedicated a portion of a recent stream to questioning Lengyel’s decision to stand up to the IOC. In 2017, Klein and fellow YouTube star Hila (who is also Klein’s wife) won a case against another YouTuber, Matt Hoss, who sued them on copyright grounds for a video that criticized his work and included clips from it. At the time, Klein declared it “a landmark case” because "the wording the judge put in is going to strengthen fair use on YouTube.” Klein, who was initially advised on his case by Morrison but jettisoned Morrison’s firm after a series of bad experiences that he says nearly lost him the case, fears that if Lengyel gets sued and loses, it could harm the potency of fair use across online platforms. (Morrison told The Post he was not at liberty to discuss specifics of Klein’s case.)
“If Ryan [Morrison] represents him in a bad case, not only is xQc going to get screwed with time and money and liability, but he can actually set back the work that we’ve done,” Klein said on stream. "If we get a bad ruling against fair use, that can screw everybody.”
But according to Brandon Huffman, a founding attorney at video game- and entertainment-focused firm Odin Law and Media, fair use is profoundly misunderstood.
“What people often misunderstand is that fair use is going to have any resemblance to what is actually fair,” Huffman told The Post. Fair use, he explained, is not a legal bubble shield that surrounds everybody on the Internet but rather a case-by-case defense. In reality, Huffman said, fair use is something only a judge and jury can decide and thereby resists easy characterization and definition.
Unlike the overwhelming majority of Twitch’s 7 million streamers, Lengyel, whose paid Twitch subscribers alone net him over $125,000 a month, has the money to make it that far in the legal process. But that doesn’t guarantee anything. Fair use is predicated on a four-factor test that measures: purpose and character of the use; nature of the copyrighted work; amount and sustainability of the portion used; and effect of the use upon potential market for or value of the copyrighted work. That last one is often weighted more heavily than the others.
“If he’s broadcasting it on Twitch, [the IOC] is going to have a reasonable argument that a person who watches his Twitch stream is not also going to watch it on [NBC streaming service] Peacock, right?” said Huffman. “Maybe from their perspective, xQc is not the problem. But if they don’t pursue one, do they then end up with 300 streamers that allow a viewer to click around to different streams on Twitch and see the whole of the Olympics without buying it?”
An alternative to (legal) fighting
With interest in the Olympics down, the IOC has incentive to make sure viewers stay focused on its official broadcasts. But young audiences have also proven difficult for traditional broadcasters to reach, forcing companies like NBC to broaden their horizons. The Olympics, in conjunction with NBC, has its own Twitch channel, which is currently the only one that’s actually allowed to air Olympics clips. Its hodgepodge of highlights and streamer guest spots has only garnered moderate success, with the channel’s daily viewership peaking well below esports events that Twitch regularly hosts and even solo streams from popular individuals like Lengyel.
There is evidence to suggest that the IOC is defending its digital turf, as Huffman posited. Since the 2020 Tokyo Olympics began on July 23, a plethora of Twitch streamers have received DMCAs from the IOC. These include a soccer-focused streamer who says he only watched 30 minutes of Olympics clips before getting suspended and, more alarmingly, a pair of relatively unknown streamers from Japan who say the IOC served them with DMCAs simply for broadcasting outdoors from parks and public spaces near the Olympic Stadium. While those streamers do not feel like the DMCAs were warranted, they’ve since had no choice but to steer clear of those spaces.
Despite the IOC’s history of doggedness on this front, Morrison thinks content creators and their fans have blown Lengyel’s tussle with the Olympics out of proportion.
“This is no different than every other [DMCA] counter we do. This is no different than every other DMCA we get,” Morrison said, explaining that no counter claim his firm has handled has ever gone to court.
It is also, as far as he’s concerned, unlikely that a potential case will set a legal precedent. Both Morrison and Huffman noted that fair use cases are too rooted in the specific facts of each individual case to extend far beyond their own bounds.
“Everyone’s figuring it out as we go, because there’s not a lot of legislation on this stuff, and the legislation that comes out is typically written by people who can’t open their email trying to figure out the Internet,” Morrison said. "It’s going to be a very complicated 10-20 years on this stuff.”
In the meantime, even if nothing comes of the IOC case, Twitch streamers like Lengyel — as well as adjacent figures — are going to get engagement out of it. “You know, it’s true with everybody: They hit ‘go live,’ and they’re putting on a show,” Morrison said.
This story has been updated from its original version to include a response from the International Olympic Committee.