Boss Battle: Twitch vs Proposed Amendments to the Knowledge Standard Under the Digital Millennium Copyright Act

• Publication year: 2021

Boss Battle: Twitch vs Proposed Amendments to the Knowledge Standard Under the Digital Millennium Copyright Act

Zachary Messick

University of Georgia School of Law

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BOSS BATTLE: TWITCH VS PROPOSED AMENDMENTS TO THE KNOWLEDGE STANDARD UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT

Zachary Messick^*

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Table of Contents

I. Introduction....................................................................................................445

II. Background.......................................................................................................447

A. DMCA Safe Harbors and Twitch..............................................449

1. Twitch's Potential Copyright Liability and the DMCA's Antidote..........................................................................451
2. How Does Twitch Qualify for Section 512 Safe Harbor.......453

B. A Brief History of Indirect Theories of Liability..........455

1. Vicarious Liability..........................................................................455
2. Contributory Infringement...........................................................457

III. The Wolf in Sheep's Clothing: Lowering the Knowledge Standard......................................................................................................461

A. Reforms Proposed by the Copyright Office: A Harbinger of Things to come...........................................................................462
B. "There's a Second Stage?": Tillis's Proposed Reforms Take the Copyright Office's Suggestions to a New Level......................................................................................................467

IV. Cooperative Play: Congress Should Seek to Foster Cooperation Between OSPs and Rightsholders......................468

A. High Bar for Indirect Liability: Bug or Feature?...........468
B. Treating the Disease, Not the Symptom..............................470
C. Expanding Rightsholder's Access to OSPs' Dectection Tools......................................................................................................471

V. Game Over: A Happy End for Twitch..............................................473

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I. Introduction

In an effort to encourage voting in the 2020 election, congresswoman Alexandria ocasio cortez took to Twitch and broadcast herself playing Among Us,¹ a mafia-esque game, to almost 440,000 viewers.² The congresswoman was far from the first well-known person to broadcast, or stream, on the site however. Drake has made appearances on stream;³ rapper T-Pain regularly broadcasts himself playing video games and freestyling;⁴ and famous soccer player, Neymar, recently began streaming on Twitch.⁵ Twitch has created celebrities, such as Ninja and Shroud, who have inked exclusive streaming deals worth millions of dollars in the past.⁶

Twitch, an Amazon subsidiary,⁷ has grown steadily since it began in 2011 and is today a major player in the online-content marketplace.⁸ During the second quarter of 2020, at the height of the coronavirus lockdown, Twitch had over 5 billion hours watched and averaged 2.4 million concurrent viewers.⁹ Even in 2014, Twitch represented almost 2% of all of the internet traffic in the United

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States and rivaled the primetime viewership of cable networks such as MTV, Comedy Central, and CNN.¹⁰

Twitch, like other tech giants such as YouTube and Facebook, relies on user-generated content to draw viewers to the site.¹¹ Twitch provides a platform for people to broadcast live any type of content they wish.¹² From video game playthroughs and live concerts to political commentary, Twitch has something for everyone.¹³ Unfortunately, Twitch's platform can be abused by copyright infringers and used to distribute infringing material to the masses, exposing Twitch to extensive liability as a secondary infringer. Moreover, because Twitch primarily focuses on video game streaming, streams inherently involve works that are copyrighted by someone other than the streamer.¹⁴

Luckily for Twitch and other media-based websites, they can qualify for statutory safe harbor under the Digital Millennium Copyright Act (DMCA) and avoid liability by cooperating with rightsholders to identify and remove infringing content.¹⁵ For more than twenty years, the DMCA has protected the rightsholders' interests and allowed online service providers (OSPs)¹⁶ to grow into the massive companies that we know today.¹⁷

The DMCA has experienced some growing pains, however, as the OSPs have grown in scale and scope.¹⁸ When the DMCA was passed, there was less content to sift through, but today the proverbial haystack has grown exorbitantly, making it much more onerous to identify and remove infringing content.¹⁹ Rightsholders and OSPs alike are concerned with how the burden should be

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distributed and advocate for the DMCA to be amended to adapt to today's internet.²⁰

In response, the Copyright Office undertook a study beginning in 2015 into the DMCA's alleged shortcomings and published its report along with suggested amendments to the DMCA.²¹ Of particular concern to Twitch were the proposed changes to the knowledge standard,²² which requires OSPs to act on infringing content.²³ The knowledge standard is an exception to the statutory safe harbor of the DMCA that holds an OSP liable if it has actual knowledge or "red flag" knowledge of infringing content.²⁴ In its report, the Copyright office suggests less stringent knowledge standards that would disrupt the balance originally struck by the DMCA and potentially bring ruin on up-and-coming websites like Twitch.²⁵

In this Note, I will argue that Congress should avoid altering the knowledge standard by demonstrating the inequitable effects such amendments would have on OSPs like Twitch. Instead, Congress should focus on amendments that address the DMCA's growing pains more directly, particularly by providing rightsholders the means to license the OSPs copyright detection technology.

I will begin by exploring the origins of the DMCA, the history of the common law theories of secondary liability, and the Copyright Office's proposed amendments to the knowledge standard. Next, I will discuss how the proposed changes to the knowledge standard would fundamentally change how Twitch operates and devastate Twitch and other OSPs like it. Lastly, I will argue that Congress should seek to amend the DMCA to allow for licensing of detection technologies or provide rightsholders meaningful input into their development.

II. Background

In hindsight, it seems painstakingly obvious to say that the internet has exploded and evolved in unexpected ways. In the 1990s, however, Congress was just beginning to grapple with the internet's potential and the existential threat it

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posed to copyrights.²⁶ Before the internet, it was difficult for infringers to reproduce works on a commercially-viable scale without exposing themselves to criminal liability.²⁷ The internet effectively destroyed these limitations and created new infringement opportunities that were previously inconceivable.²⁸

The heightened potential for infringement was facilitated by OSPs whose consumers used the OSPs' websites or services to illegally reproduce and distribute copyrighted material.²⁹ While the OSPs themselves were not involved in the reproduction or distribution of the works, courts in the early-to-mid 1990s often held OSPs liable for the infringing activity of their users under two theories of indirect liability.³⁰ Courts extended contributory infringement and vicarious liability from the physical space³¹ into the digital world³² and created a massive amount of uncertainty for OSPs in the process.³³

Both Congress and President Clinton recognized the need to adapt copyright law to the digital age and address growing concerns about OSP liability, culminating with the passing of the DMCA in 1998.³⁴ Among the DMCA's

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provisions, Title ii specifically addressed the uncertainty surrounding the copyright infringement liability of OSPs.³⁵ Instead of clarifying the doctrines of contributory infringement and vicarious liability, Congress left the law in its "evolving state" and sought to limit OSP liability by creating a series of "safe harbors" for OSPs who meet certain statutory criteria.³⁶ Congress felt it had "appropriately balanced" the interests of OSPs, rightsholders, and internet users.³⁷ The DMCA maintained strong incentives for OSPs and rightsholders to cooperate to detect infringing activity and provided more certainty to OSPs about their potential copyright infringement liability.³⁸ While Congress intended for contributory infringement and vicarious infringement to complement the safe harbors of 17 U.S.C. § 512, these doctrines heavily influenced the language of the statute, particularly the language of § 512(c), and continue to have serious interplay with the statute's application.³⁹

First, I will describe the four different safe harbors provided by Section 512 and discuss how Twitch fits into the statutory regime and maintains its safe harbor status. Second, I will briefly discuss the history of the contributory infringement and vicarious liability doctrines and how courts initially adapted the doctrines to the digital age.

A. DMCA SAFE HARBORS AND TWITCH

When it was enacted in 1998, the DMCA created four safe harbors based on the type of activity an OSP engages in.⁴⁰ 17 U.S.C. § 512 protects OSPs who (1) engage in transitory digital network communications,⁴¹ (2) cache information on their systems,⁴² (3) have information residing on systems or networks at the direction of users,⁴³ or (4) refer or link users to an online location containing infringing material, may qualify for protection if they meet the conditions set forth in each subsection.⁴⁴

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Before an OSP or company can qualify for safe harbor protection, however, the OSP must meet the statutory definition of a "service provider."⁴⁵ The OSP must also adapt and...