As a whole bunch of people on my Twitter feed are letting me know, video game streaming company Twitch*
(read disclosure below!) has announced that it has turned on Audible Magic
to begin silencing "Video on Demand" videos that make use of copyright-covered music -- including in-game music. This only covers the video on demand (stored) videos, rather than the live streams that Twitch is probably most well known for. As Twitch's General Counsel Boo Baker explains:
We’ve partnered with Audible Magic, which works closely with the recorded music industry, to scan past and future VODs for music owned or controlled by clients of Audible Magic. This includes in-game and ambient music. When music in the Audible Magic database is detected (“Flagged Content”), the affected portion of the VOD will be muted and volume controls for that VOD will be turned off. Additionally, past broadcasts and highlights with Flagged Content are exportable but will remain muted.
The Audible Magic technology will scan for third party music in 30 minute blocks — if Audible Magic does not detect its clients’ music, that portion of the VOD will not be muted. If third party audio is detected anywhere in the 30-minute scanned block, the entire 30 minutes will be muted.
This, quite reasonably, has many folks up in arms -- with Felicia Day making the point in the most humorous of ways
: "So Twitch has become a silent movie company now?" That's because pretty much every video game has some music, and it's unlikely (at best) that users of Twitch cleared that music. In the past, we've seen some similar issues with YouTube's ContentID system flagging similar "Let's Play" videos
on that site.
Really, what this seems to demonstrate is the failure of the "one-size filter fits all" world that the legacy content industry lives in. The music and movie industries have long demanded such filters, sometimes arguing (though failing) that the current DMCA requires filters like Audible Magic or Content ID. US copyright law currently does not require such a thing, though you know that the industry is pushing hard to get that into any copyright reform bill. And, for all the problems of ContentID (and there are many), it's the kind of solution that you can see often
does make sense in a YouTube world (though it has way too many false positives).
However, when it comes to Twitch, this kind of solution seems to make no sense at all
. People are not
going to Twitch to hear music. They're going to see video games. In fact, this kind of solution on Twitch seems inherently counterproductive
for just about everyone. These days musicians want
their music in video games because it's fantastic
for those musicians, both making them money and giving them a ridiculous amount of exposure. There are even entire discussions for indie musicians about how to get their music into video games
because it's such an important promotional avenue.
Those musicians aren't hurt by Twitch videos. They're hurt by silent Twitch videos, meaning fewer people hear the music.
A fairly strong case can be made that in-game and ambient video game music on Twitch is fair use. It seems to be clearly transformative in the same sense that scanning whole books
to create a searchable index is transformative fair use or that a book of magazine covers of movie monsters
is transformative fair use, or that a book of concert posters
is transformative fair use. In each case, while the entire work is used, and the original may have been licensed, the use here is for an entirely different purpose.
And yet, with this move, Twitch seems to be inherently stating that fair use for the audio is an afterthought, rather than a key component to what it's doing.
Given the various lawsuits against other video sites, it's quite likely that Twitch was facing serious legal pressure to make this move. As we've noted, the music industry has repeatedly made arguments in other lawsuits that such filtering was necessary. Just recently, video site Vimeo announced
it, too, was using Audible Magic. And, for years, legacy content players have insisted that using such a tool was required
But it's not. There's nothing in the law that requires a site to do this. And even if you can make the case that it makes sense for general interest
user-generated video sites, that's simply not the case with Twitch, whose whole purpose is to stream video from video games. It's yet another case of taking a broad maxim ("video sites should use automated filtering to silence or take down "copyrighted" material") to extreme and ridiculous ends where it doesn't make sense at all.
In other words, it's another example of the pressures and risks of today's copyright laws getting in the way of a useful innovation, leading to a result that is actually worse for everyone
From a pure "avoiding liability" position, you could see why Twitch would make this decision. Assuming that some recording industry lawyers were pressuring the company, arguing that continuing to allow those videos without a fingerprinting solution put it at risk of losing its DMCA safe harbors. Because that's the kind of argument an RIAA or an ASCAP might make. And this is really a big part of the problem with copyright law today (and especially statutory damages). Even if Twitch believes that not having such a tool is okay, it might still get taken to court and could face a massive judgment if a court decides the other way. Thus, all of the ridiculous incentives of copyright law today push Twitch to make use of this solution that, without any question, makes everyone
worse off. It harms musicians. It harms Twitch. It harms video game fans. It harms Twitch's users. It harms video games. Who does it benefit besides Audible Magic and maybe some lawyers?
Copyright remains totally broken.
* Disclosure: As you may know, just a couple of weeks ago, Twitch announced that they were providing matching donations for our net neutrality crowdfunding campaign, something we are quite thankful for. That said, the company's support of that effort doesn't change our views at all on this being a dumb move that harms everyone.