One of the most pressing questions surrounding Internet creator culture converged on three of the world’s most prominent live-streaming stars in early January when Imane “Pokimane” Anys, Hasan “HasanAbi” Piker and Jeremy “DisguisedToast” Wang all received notifications of copyright infringement after broadcasting television shows to their millions-strong fanbases on Twitch. The days that followed produced copious amounts of Twitch’s most common byproduct, online drama, but also focused attention on the murky and legally complicated question of what constitutes fair use of copyright materials such as TV shows and movies.
“React content is fun and easy. It’s like watching TV with your friends, and clearly viewers really enjoy it,” longtime Twitch star Ben “CohhCarnage” Cassell told The Washington Post. Cassell has been openly critical of the “react meta,” as it’s called, in which creators broadcast themselves reacting in real time while watching another broadcast or recording. (Twitch is owned by Amazon, whose founder, Jeff Bezos, owns The Washington Post.)
“The issue is what could happen if the industry decides they’ve had enough of [streamers] doing it,” Cassell said. “Like with what happened with music, we could all wake up one day with many of our favorite streamers suspended — or even banned — because a major company decided to pile on the DMCA strikes. On top of that, if one of these media giants decided to take it further by going after the platform instead of the streamers, it could lead to major changes that could affect us all.”
There is precedent for this concern. In 2007 Viacom sued YouTube for copyright infringement. Though the court ultimately ruled in favor of YouTube, the suit paved the way for the “Content ID” system, which automatically identifies copyright content and aggressively polices the platform. While software that can scan Twitch already exists, Twitch has yet to create its own automated system, and it does not appear to be in the process of doing so, according to industry figures with knowledge of Twitch’s operations who weren’t authorized to speak publicly. Such an outcome becomes more likely, however, if advertisers start withdrawing from the platform for fear of being associated with risky content, something that’s already beginning to happen on Twitch according to Devin Nash, chief marketing officer of content creator-focused talent agency Novo. On YouTube, a similar trend presaged a series of so-called “Adpocalypses” beginning in 2017.
“Ask any YouTuber about how [multiple Adpocalypses] have forever changed what’s viable content,” longtime speedrunner and Twitch partner Mychal “Trihex” Jefferson said on Twitter. “Smaller channels were arguably the most impacted, and many categories of content are now economically unviable.”
On Twitch, the live-streaming platform typically known for airing broadcasts of video game play, trends come and go in waves. Past trends have included a focus on big-budget video games like “Fortnite,” as well as boundary pushing antics like streamers broadcasting from hot tubs. The “react content” trend often hinges on broadcasting copyright material, like popular movies or TV shows, a practice which skirts the outer edges of platform rules.
Earlier this month, Viacom and the History Channel/A&E (which is owned by Hearst and Disney) issued copyright claims — also known as Digital Millennium Copyright Act (DMCA) takedown requests — to specific streamers. On Jan. 7, Anys was hit with a claim for broadcasting episodes of the classic 2005 Nickelodeon (owned by Viacom) animated series “Avatar: The Last Airbender.” As a result, Twitch suspended her for two days. One other relatively prominent streamer, Danyell “TheDanDangler” Lanza, received a copyright claim for watching the History Channel’s “Forged In Fire.” She, too, served a two-day suspension and then returned to streaming, at which point she apologized for her actions, saying she had put on the show in lieu of doing a more involved stream herself while sick with covid.
On Jan. 8, Piker received a copyright claim — but not a suspension — seemingly for his streams of “MasterChef,” the reality show starring Gordon Ramsay. However, Piker and his viewership were later able to deduce the DMCA notice was a fake. Another Twitch user had seemingly fabricated the DMCA strike by digging up a Fox executive’s email address and using it to fill out Twitch’s DMCA form. On Jan. 10, Twitch revoked the strike against Piker. He has since resumed watching “MasterChef” on stream.
Wang said he received a similar DMCA claim and a suspension on Jan. 10 after watching beloved 2007 anime series “Death Note” on his stream. However, Wang went on to make false claims about his suspension’s length and origin, leaving unclear exactly who issued the copyright claim.
The DMCA-centric discourse left streamers and viewers on Twitch with ample drama but no clear answer as to whether one of the platform’s go-to trends merely faces a few bumps in the road or an asteroid-sized extinction event.
“Nothing could happen, or everything could happen,” Cassell added. “And it rests on the decisions of a handful of media rights holders.”
Why stream copyright content?
The DMCA was first signed into law in 1998 and was meant to ensure intellectual property creators could capitalize on their work. Over the years, those laws, which decide what falls into the public domain and what remains copyright property, have been the target of lobbying efforts from immensely powerful media conglomerates like Disney, which initially argued to retain control of the character Mickey Mouse.
DMCA notices are filed to the platform — in this case, Twitch — citing the infringing streamer. Under the Digital Millennium Copyright Act, companies are granted immunity to claims of copyright infringement — or “safe harbor” — as long as they agree to remove or disable access to infringing works expeditiously. To maintain this, Twitch often responds to DMCA claims by quickly suspending streamers. Three such strikes and streamers risk a permanent ban from the platform.
Still, some streamers have flirted with this danger in search of viewers. Wang especially has lent credence to this idea, claiming he courted disaster on purpose to somehow dissuade other streamers from participating in the react meta, but then also milking the moment for memes, viewership and merch advertising.
Another justification for the react meta, cited by some members of the Twitch community, is the labor involved in constantly creating new material to stream.
“Almost every single one of [the top 50 broadcasters] needs to be at 240-250 hours per month,” said Nash, who has viewed a number of major contracts in his role, some of which pay out millions of dollars to streamers over multiple years. Nash rejected the idea that streamers are embracing reaction streams because they are “lazy.”
“They’re like, ‘What do I do live all this time?’ And they’re seeing that react content is not only relatively low effort, but it’s also pushing views,” he said. “So the next logical step is, ‘Okay, how far can I get away with this?’ ”
Even streamers’ concerns about losing this source of content have been transformed into a wellspring of content. Late last week, a streamer named Demarcus “Jidion” Cousins sent his audience into Anys’s Twitch chat with harassing messages in the aftermath of her return from DMCA limbo. This caused other content creators to rally around either Anys or Cousins, leading to heated arguments, an indefinite Twitch ban for Cousins, and, eventually, legal threats from Twitch superstar Tyler “Ninja” Blevins to Anys for perceived onstream “lies” about his perspective on the situation and efforts to get Cousins un-banned. It’s easily Twitch’s biggest drama-of-the-week of the year so far. And while it’s rooted in real issues — sexism, a streamer’s career — it’s also got viewers glued to their screens.
Some streamers, such as Piker and Felix “xQc” Lengyel, both of whom started reacting to clips from sites like YouTube long before the current react meta began, argue reaction content should be permitted since Twitch is essentially built on copyright infringement. Streaming a video game is technically a DMCA-able offense. The video game industry, however, has decided to allow the practice because the free publicity and resulting sales tend to outweigh any potential downsides.
But television is a different beast, with its economics rooted in broadcast rights rather than individual unit sales. In 2021, Lengyel, Twitch’s most-watched streamer, received a DMCA claim from the International Olympic Committee after streaming himself reacting to the Tokyo Olympics. NBC paid $7.75 billion for the exclusive broadcast rights to the Olympics through 2032.
Lengyel and the talent agent who represents him, Ryan Morrison, pushed back against the DMCA claim, saying his reactions made it transformative and therefore allowable under fair use, a defense of derivative content that protects unlicensed use of copyright works in case-by-case instances. In that case, too, critics worried that blowback would impact not just Lengyel, but the entirety of Twitch and laws surrounding fair use. Ultimately, that moment passed without the rules or habits of streamers materially changing.
Ignoring the infractions
This awkward and unceasing dance around the topic has been fueled in part by the fact that Twitch is incentivized to maintain its ignorance of copyright infractions taking place on their platform.
“If Twitch knows of active infringement or is aware of facts from which knowledge of infringement is apparent, and does not act to remove or disable the material, then it could lose its safe harbor under the DMCA,” said Brandon Huffman, a founding attorney at video game- and entertainment-focused firm Odin Law and Media.
According to Ryan Fairchild, also at Odin Law and Media, it thereby behooves Twitch to behave as though it is ignorant of copyright infringement until DMCAs come its way.
“The best way for a platform to protect itself is essentially try to play as neutral as possible,” said Fairchild. “You’re a platform. You’re not the one doing the content. … Does the leadership, does the corporation actually know what’s going on? If the officers and directors know, then yeah, that’s gonna be pretty good evidence that the corporation knows. If it’s some random Twitch staff who does something that’s completely unrelated to that and wouldn’t think to pass that stuff up, maybe it’s easier to claim ignorance.”
But the silence has added stress to streamers whose livelihoods could be impacted by decisions around the current DMCA practices. And it has emphasized divides between Twitch’s stars and smaller streamers seeking to build an audience.
“I really am tired of the Twitch [react] meta,” Twitch partner Preston “AdmiralBahroo” Shimek said on Twitter, echoing a sentiment expressed by many streamers significantly smaller than himself. “Purposely break the rules while acting dumb in the process so you can take a two-day vacation and then be welcomed back with 3x viewership [and] exposure — all the while everyone else now has to deal with stricter rules.”
It’s the latest expression of a class divide that’s come to characterize the platform. Just 0.1 percent of Twitch’s total streaming population pulls in minimum wage or better. Top streamers make millions and are perceived by the community as bulletproof due to Twitch’s inconsistent application of its own rules over the years. After a year in which it took Twitch months to get hate raids — which disproportionately targeted smaller, oftentimes marginalized streamers — under control, it’s clear that resentment continues to simmer.
Smaller streamers, meanwhile, look at lawyers brandishing books of outdated laws and see an existential threat. Some who’ve nearly gotten booted from Twitch due to false copyright claims, like political streamer Michael “Mike from PA” Beyer, advocate for an overhaul to Twitch’s current DMCA system.
“If you don’t dispute a claim, even if its veracity is negligible, you are the one that loses,” said Beyer, who found himself facing three fake strikes after streaming the 2020 Democratic presidential debates. “The liability is on you. The risk is on you. And some people, if they get DMCA-ed, are just scared they’re gonna get sued. They don’t have the money to pursue or defend a federal lawsuit. So when somebody files a troll claim, that can really scare you.”
Ramsay it ain’t so
Both streamers and companies are trying to adapt to a new media landscape resting on the shoulders of a much older one. In the time since the react meta discourse began, numerous smaller channels airing unlicensed 24/7 marathons of shows like “The Simpsons” have sprung up. On the other hand, some bigger streamers, like Lily “LilyPichu” Ki, have managed to get official permission to broadcast more obscure shows. Speaking to The Post, however, Ki explained that her deal only came about because she previously did voice-acting work on “D4DJ,” the anime series she’s been streaming, and while she’d like to broadcast additional shows, “getting permission for this is hard.”
With media conglomerates like Fox and Warner Bros scrutinizing Twitch more closely now (according to live-streaming industry figures who spoke on the condition of anonymity because they were not authorized to speak publicly), obtaining permission is not likely to get easier. To wit, the official Twitter account of Gordon Ramsay — whose older shows have gained immense popularity on Twitch in the past few months — recently denied a streamer who asked for permission to broadcast his newest show, adding: “Why would I let you do it on Twitch when I could do it myself?” But of course, there’d be significantly less demand for a Ramsay-Twitch crossover if big streamers hadn’t made it cool to watch old episodes of “MasterChef” in the first place.
Some industry figures, like video game, esports and entertainment lawyer David Philip Graham, believe we’re long overdue for an overhaul not just to the DMCA, but copyright law in general.
“Much of our current copyright regime isn’t really about authors’ rights or promoting the progress of science and useful arts, but about big businesses looking for easier routes to profitability,” Graham said, advocating for a shortening of copyright term lengths and expanded permissions for derivative works. “Whether it’s music publishers seeking legislation against player pianos over a century ago … or video game rights holders converting community efforts to develop esports infrastructure into unearned windfalls for their own marketing, the story of copyright law has often been about established interests trying to conquer what they view as threatening upstarts.”
“New works necessarily build on the old, coming out of places and times and groups and events as much as out of individuals’ heads,” he added. “And just as importantly, being limited to passive interactions with our own culture is an impoverishment that the massive infringement on Twitch, YouTube and social media shows few of us are willing to accept.”