TAKEDOWNS AND TERMINATIONS: TWITCH'S TRANSGRESSIONS AND STREAMERS' STRUGGLES.

• Author: Baker, Hannah
• Position: Varga v. Twitch Interactive, Inc.

INTRODUCTION I. BACKGROUND A. History of Video Sharing and, Live Streaming B. Current State of the Video Game Streaming Industry C. Twitch-User Contractual Relationships II. POTENTIAL SOLUTIONS A. Litigation B. Organization C. Legislation CONCLUSION INTRODUCTION

On Friday. June 26. 2020 at 2:01 PM CT, Twitch banned popular streamer Guy Beahm, better known as "Dr. Disrespect." (1) ESports journalist Rod "Slasher" Breslau reported on twitter around 4:22 PM that the ban was permanent in nature (2) and not related to recent Digital Millennium Copyright Act ("DMCA") (3) takedowns. (4) At the time of the ban, Dr. Disrespect's channel had over four million subscribers. (5) In an incredibly unusual move, Twitch actually refunded Dr. Disrespect's subscribers for their subscriptions to his channel. (6) Shannon Liao, a video games journalist for CNN. posted the following tweet at 4:45 PM: "Twitch's statement on @drdisrespect ban: 'As is our process, we take appropriate action when we have evidence that a streamer has acted in violation of our Community Guidelines or Terms of Service. These apply to all streamers regardless of status or prominence in the community.'" (7) The timing of Dr. Disrespect's ban also closely corresponded with a flurry of bans as a result of sexual assault allegations of other streamers on Twitch. (8)

While Dr. Disrespect had previously experienced a temporary ban for streaming inside an occupied men's restroom at the Electronic Entertainment Expo in 2019, Twitch's swift and decisive action in permanently banning Dr. Disrespect's account in combination with its silence on its reason for doing so led to mass confusion. (9) This sparked wild speculation across the internet about exactly why Dr. Disrespect was banned. For example, reddit users flooded the subreddit r/LivestreamFail with theories behind Dr. Disrespect's ban ranging from accusations of mishandling charity funds (10) to contract fraud (11) to sexual assault. (12) Others theorized that Dr. Disrespect's ban was an orchestrated conspiracy to form a new streaming platform with two other famous eSports streamers, Ninja and Shroud. (13)

If Dr. Disrespect were any regular Twitch streamer, these circumstances might seem frustrating and mysterious, but ultimately just another news story that would fade into obscurity; however, Dr. Disrespect is unique. Dr. Disrespect is represented by CAA (Creative Artists Agency), a major talent agency based in Los Angeles, California. (11) In early March 2020, just roughly three and a half months before the perma-ban, Twitch signed a "major multiyear" exclusive contract extension with Dr. Disrespect. (15) Financial details of the transaction were never publicly disclosed, but journalists estimated that the value of the contract exceeded $10 million. (16) While the parties never made many of the details of the agreement available to the public, the central purpose of the agreement was to prevent Dr. Disrespect from streaming with any other platform besides Twitch. (17)

This means that without any meaningful form of notice or opportunity to appeal, Twitch unilaterally terminated a multimillion-ndollar exclusive contract. One could assume this was simply a power flex on Twitch's part, feeling emboldened by the recent failure of the "Mixer" platform. (18) Twitch handing down bans and suspensions without explanation is not out of character; (19) Twitch likely feels confident that content creators don't have any other viable options for platforms and will therefore put up with whatever decisions Twitch makes. This creates an incredibly toxic environment for content creators on Twitch who are subject to the inconsistent whims of a company that knows the creators have few other options for broadcasting their content.

Content creators are feeling increasing levels of frustration as Twitch continues to feel emboldened to behave badly; however, with the amount of power Twitch holds--both financially and with its control of the market--streamers feel helpless in their quest to seek equal treatment from a platform that knows that streamers have nowhere else to go.

In this comment, I will explore possible solutions for content creators to affect change in Twitch's policies and treatment of its streamers. First, I will review the background necessary to understand the streaming atmosphere. I will discuss the history of video sharing and live streaming, review the current state of the video game streaming industry, and explore Twitch's relationships and agreements with its users. I will then discuss three possible solutions to affect change in Twitch's policies. The first solution is litigation of individual issues as they arise in hopes that Twitch will change their policies accordingly. The second solution is organization, in which streamers can come together and provide legal representation and education to participating members. The third solution proposes a legislative solution by which streamers ask lawmakers to enact laws that regulate the behavior of online streaming platforms. In attempting all three of these potential solutions, streamers will afford themselves the greatest chance at effectively changing Twitch's behavior towards its content creators.

1. BACKGROUND

   1. History of Video Sharing and Live Streaming

      The first major video sharing platform, YouTube, was created in 2005 by three former employees of PayPal, Jawed Karim, Steve Chen, and Chad Hurley. (20) The trio saw a need for one location where people could share videos to the entirety of the internet. In April of 2005, Karim posted the first YouTube video, titled "Me at the Zoo." (21) In October of 2006, at only a year and a half old, Google acquired YouTube for $1.65 billion after the launch of its own Google Videos failed. (22) Since its inception, YouTube has begun sharing advertisement revenue with its content creators, spurring the massive expansion of higher quality content. (23) YouTube remains one of the most successful websites in history as the second most visited website in the world. (24) Content creators' ability to earn money has grown as YouTube has continued to expand, with the number of channels earning six figures per year growing 40% annually. (25)

      Around the time of YouTube's inception, Twitch entered the scene allowing users to live stream content to audiences across the internet. Twitch, originally named "Justin.tv," was founded in 2005 by Justin Kan while he was studying physics and psychology at Yale. (26) Kan originally used the website to broadcast his own life; however, in 2007 the website began allowing users to post their own live streams. (27) Kan was specifically interested in his website hosting live streams of video games, even hiring a "specialist video game streamer" who helped grow the video game channels on the website. (28) In August of 2014, Amazon acquired Twitch for $1 billion. (29)

      Since the website transformed from "Justin.tv" to Twitch, myriad features have been added to create an optimal streaming experience. Users can stream content on their own channels as well as watch streams on other channels. (30) During these streams, users can interact with both the content creator and with other viewers through the chat function, use custom emotes unique to the content creator's channel, and donate money to the content creator. (31) Users can pay to subscribe to their favorite content creators, paying either $4.99, $9.99, or $24.99 per month to unlock exclusive emotes, view the channels' streams without any interruptions from advertisements, and even gain exclusive access to "subscribers only" chats. (32)

      With Twitch's popularity soaring, YouTube announced its live streaming service as "YouTube Live" in April of 2011. (33) Others followed suit, including a mobile app called "Periscope," which allowed users to live stream to audience with the touch of one button from their mobile device. (34) Users broadcasting through Periscope could interact with their viewers in real time as viewers could send likes and send messages through the chat function. (35) Periscope was acquired by Twitter in February 2015; however, Twitter announced in December of 2020 that it would shut down Periscope by March of 2021, instead featuring live broadcasting through its integrated "Twitter Live" feature. (36) In April of 2016, Facebook launched Facebook Live, which allowed any Facebook user to live stream videos to their Facebook profiles. (37)

      In addition to expanding the presence of live streaming across the internet, companies have also created spaces specifically for live video game streaming content. In 2015, Google launched "YouTube Gaming," a YouTube app and website focused entirely on both live and on-demand gaming video content. (38) In August of 2016, Microsoft decided to enter the live streaming arena and acquired a video game live streaming platform called "Beam," renaming it "Mixer." (39) In a bid to compete with Twitch, Mixer secured exclusive streaming contracts with streaming giants Tyler "Ninja" Blevins and Michael "Shroud" Grzesiek. (40) Also looking to throw its hat into the live streaming ring, Facebook launched Facebook Gaming, an app for live and on-demand gaming video content, in April 2020. (41) In the summer of 2020, Microsoft decided to move its existing partners to Facebook Gaming and shut down the Mixer platform. (42) Microsoft's head of gaming, Phil Spencer, cited comparatively low monthly active viewers as the driver for Microsoft's decision to shut down the platform. (43) As of 2019, Twitch controlled about 73% of the video game streaming market share, while YouTube Gaming controlled about 21%, Facebook Gaming controlled about 3%, and Mixer controlled about 3%. (44)

   2. Current State of the Video Game Streaming Industry

      A DFC Intelligence report released in mid-2020 found that 3.1 billion people play video games globally. (45) As of 2019, 944 million people...