I was fucking furious when I first got word of Twitch's plan to begin muting the audio of archived videos containing copyrighted music.
This move felt actively harmful to me, as someone who has spent over a year building my personal Twitch channel into something I care about strongly. I recognize the need to protect copyrights, and I'm as annoyed as anybody by streamers who play Spotify on top of the games they're streaming.
But the streaming industry just dealt with YouTube's frustrating attempts at cracking down on copyright last year, and it seemed a certainty that Twitch's early attempts would be just as flawed. They have been. Twitter has been flooded with embarrassing examples of audio being cut from archived videos. One of Valve's official Dota 2 tournament videos had audio muted for a segment where crowd noise was misread as music. Even one of the videos on Twitch's own channel was hit.
I look at those examples — even if there are hundreds of legitimate ones — and I see a farce. I see a system that was brought public before it was ready, whatever the good intentions.
But why now? Why introduce these changes on the back of years of almost nothing but good will from the gaming community? I had to step back and look at the bigger picture of what's happening. The more I considered Twitch's situation, the more I recognized this move as an inevitability — and one that's only going to become more pressing in the coming years.
The reality of the law
"There would be an argument by the copyright owners that the way music might be used in some of these streams may violate their copyright. Whether they may prevail in a court of law, there's an argument there that's not frivolous."
That information comes from Eric Chad, an attorney at the intellectual property law firm of Merchant & Gould. He's familiar with copyright law, and his firm even works directly with one major music licensing conglomerate as a client. But even as someone who can see the argument of copyright violation being made, Chad is confused by some of the steps Twitch has taken to protect itself.
"I think it's interesting that they're policing on-demand videos but not livestreams," Chad told Polygon in an interview on Thursday. "I don't know why one would be copyright infringement and the other would not. There's some line drawing here that I don't understand. In theory, broadcasting yourself playing a video game would also be copyright infringement, though there's an argument for fair use."
"If stuff is transformative, then it's not copyright infringement"
As many Twitch broadcasters and YouTube personalities have noted over the past few days, recordings of video games, with or without commentary, have always existed in a legal grey area. It's not the same as just putting up a recording of a movie or a song, but it's also not clear how different it is and whether or not the massive corporations publishing games will recognize or honor that difference forever.
Chad explained the fair use argument that many gaming content creators subscribe to: "If stuff is transformative, then it's not copyright infringement. That may be an argument that these video creators would be able to make."
But if broadcasters — and presumably Twitch as well — believe the act of playing a game on live video to be transformative, wouldn't the music in the game, whether licensed or not, be a part of that? "Maybe this is just an example of the music industry being more aggressive," Chad said. "The video game industry is traditionally more suspicious of intellectual property and using intellectual property rights. Obviously they're anti-piracy, but I don't foresee them going into this realm and stopping people from playing games on Twitch."
Chad is correct that the gaming industry has, by and large, shied away from going after video content created from games. There are a few fringe examples of videos being pulled by publishers or developers, and Nintendo claimed ad revenue on some videos using its games last year but let those videos remain posted. For the most part, though, game broadcasters have not had to face much opposition from our side of the industry.
The music industry, Chad noted, is notoriously "aggressive [in] enforcing its copyrights in lieu of what may be good business." He's careful to remind me that they also have the right to do this, even if it might seem short-sighted. And it's almost certainly that aggressive-minded music industry that Twitch is trying to sidestep with this move.
(GIF via @ultradavid)
"My initial reaction was worry over how this is going to affect Desert Bus."
That's from Johnny Blakeborough, the broadcast tech lead for Desert Bus for Hope. Blakeborough and the rest of the team have been running a charity livestream marathon through Twitch for seven years. Last year, they managed to raise over $500,000 for charity Child's Play. Now, as he prepares for the 2014 edition of the event, Blakeborough has some new concerns to mull over.
"I started wondering about how good an algorithm it is," Blakeborough said in a phone call with Polygon. "Is it going to pick up people humming stuff? Is it going to pick up background noise? I haven't had a chance to do any testing yet, but from the initial reports I read from other people, it seems like there are some false positives and some problems Twitch needs to work out."
In its blog post introducing the audio changes, Twitch made it clear that their software — via a company called Audible Magic — would target in-game music and ambient sounds in addition to music simply layered on top of the stream. One of the biggest problems with this system, in its current incarnation, is that it offers no information to broadcasters about why a video has been muted.
Was it in-game music? Was it, as Blakeborough pondered, someone humming a popular song from the radio? Something else entirely? As of right now, all a broadcaster knows is that something was flagged by the software and caused a chunk of the video to be muted.
For Blakeborough, the audio changes are colliding with Twitch's changes to how it archives video to create an even bigger problem for Desert Bus for Hope. "There's a lot of people that watch the Desert Bus stream and miss out on things they want to see — maybe a call-in or a guest they were interested in or a contest," he said. "A big part of our community is not only watching live and interacting through the text chat, but being able to go back and watch it, even during the stream, not even months later."
In previous years, Desert Bus for Hope has used a system of volunteers who, according to Blakeborough, "watch every single video of the stream on Twitch and highlight sections that they think people will want to watch, title them and export them to YouTube for us." While this will still be possible, he's concerned that audio could be muted immediately once a video has been converted to the archives, and that these volunteers won't be equipped to appeal any false positives to Twitch.
"Audio with muted gaps in it, especially the way they're doing it with 30-minute chunks, would be completely unusable to us," Blakeborough said. "It's not just 'Oh, that's unfortunate.' It would be completely unusable."
Disillusioned and disappointed
Though archived content is the most immediately affected by these changes, even broadcasters focused on the live experience are feeling nervous. Jayson Love is better known to his viewers simply as "Man." He's grown to be one of Twitch's most popular solo broadcasters on his Man vs. Game channel, which has over 200,000 followers and regularly has 5,000-plus viewers on any given night.
During his stream yesterday, Love had a passionately negative reaction to the news. "Thanks, Google!" he screamed, referencing reports that the massive company — which employs its own audio recognition software for video service YouTube — is closing a deal to purchase Twitch.
"Artists deserve to be paid for the work they do," Love said. But he went on to call the system Twitch has put in place "fucking atrocious." Many of Love's archived videos have already been affected. "If you go back and watch a bunch of my VODs, you'll see these little pink, muted areas," he explained to his viewers.
We spoke to Love a few hours after that broadcast, and though he remained disappointed, he had calmed down. "I really started off my rant very upset," he said. "All I could imagine was the Twitch brass signing contracts and then diving into their swimming pools full of money. It really did feel like a betrayal."
Love said that talking to his viewers during the course of the show helped him cool off. "My big fear when I heard that they were muting archived videos was that they're doing that because they have the technology — that they're going to be searching for live casts next or shutting me down," he said. "One of my viewers was able to calm me down a bit. They said that the main legal issue is the recording of the video."
"It really did feel like a betrayal"
Both in his stream and in the interview afterward, Love discussed a desire to find a better long-term solution to the issue of copyrighted music on streams that would work for both broadcasters and artists. "I do monetize my content, and my content is absolutely comprised of my commentary but also the work of many talented people," Love said. "I absolutely believe they should be paid."
Love suggested a Spotify-esque system where a broadcaster pays a certain amount of money each month that can then be disseminated to artists whose music was featured on streams. "The way I see it, it probably wouldn't even be visible," he said. "It would just be deducted from whatever payment you got from Twitch."
Love has always pushed hard to support the developers and music creators behind content featured on his stream. "I try to make sure that links are dropped in the chat and that artists are promoted, that people support them," he said. "I understand that not everyone's going to do that, but the general idea is that, you know, I'm monetizing the content, but I'm also on a platform and promoting that content and getting word out about it. That's the perfect scenario."
Looking for answers
Some of those artists are disappointed in the changes as well. Danny Baranowsky is a composer who has made music for games such as Super Meat Boy and The Binding of Isaac. Most recently, he's been working on music for the Steam Early Access game Crypt of the Necrodancer. Within minutes of the Twitch announcement yesterday, Baranowsky started receiving notifications via Twitter of Necrodancer videos on Twitch being muted.
This is music he created, music he has full control of the copyright for and does not want muted on Twitch. And so far he's been unsuccessful in getting the problem reversed.
"I just got off the phone with my lawyer," Baranowsky told Polygon, "and it appears what's happening is that Audible Magic is misidentifying Crypt of the Necrodancer music as someone's music in their catalog. I'm genuinely curious which song it's identifying it as."
Again, with its current, flawed implementation, there is no way to tell what song is being identified. Since Twitch mutes 30-minute segments where the offending music is identified, Baranowsky can't even narrow it down to figure out if a specific track is causing problems. He calls it the "carpet bombing" approach to protecting copyrighted content.
Baranowsky and his lawyer are currently in talks with Twitch, but they're still trying to figure out the process to stop this from happening. "We haven't talked with Audible Magic yet, but I do know that there is a way to 'whitelist' music so that it doesn't show up," he said. "I don't know if we have to send them the music to add to their database. The problem with it is that the Necrodancer music isn't done. It's going through iterations. I wonder if we have to do this every time I come up with a new version."
He calls it the "carpet bombing" approach to protecting content
The composer seemed annoyed at Audible Magic's system being "opt-out" rather than opt-in. "It's on us to make sure that they're not muting it, which is kind of weird," he said.
Baranowsky also believes that Twitch and the music industry it's trying to defend itself from are taking the wrong approach. "I understand where Twitch is coming from," he said. "They don't want Michael Jackson's lawyer coming after them because a streamer is playing 'Thriller' or whatever. But it seems like, in general, more data is preferable. If you could have a database of what songs are being played, that's useful for so many reasons. I would love to know how many times people have played my music."
In his mind, this could lead to a shared revenue system for musical artists similar to what Love suggested. "These are all public performances," Baranowsky said, "but because it's public performances on a crazy global scale that's never happened before, there's no real good way to know what's being played. Since video games are becoming the biggest entertainment thing in the world and music is attached to that ... When people make money streaming video games, there's going to be performance royalties. That's just copyright law. I think this is the first stage of them trying to do that."
Based on Twitch's own comments, Baranowsky seems to be correct in this prediction. In a Reddit Ask Me Anything on Thursday, Twitch CEO Emmett Shear responded to a question from Crypt of the Necrodancer developer Ryan Clark, whose own Twitch videos were hit with the muting problem Baranowsky is attempting to clear up. Shear told Clark that the company is "actively working to provide" shared monetization options that could prevent the need to mute audio.
"What they're doing right now is totally reasonable," Baranowsky said. "It just seems a little bit like a brute-force approach."
Toward better solutions
Whatever shape Twitch's approach to copyrighted audio takes over the coming weeks and months, there's one thing that everyone I talked to seems to agree on: This is a problem that Twitch was going to need to tackle sooner or later.
Love provided an apt metaphor: "You see the kingdom of YouTube on the horizon in flames — and I'm being quite melodramatic here — but you see them getting overtaken and you think, 'That's terrible. It's great that we're over here and don't have to deal with that, because that's awful.' But at the same time, you think, 'What's stopping them from enforcing the same shit on me over on Twitch?'
"I think the only thing that kept their attention away from us is that Twitch was still growing," he added.
Chad agreed. "People in intellectual property rights go after where the money is," he said. "There are examples of individuals being targeted for sharing pirated music, going back to Napster and such, but really at the end of the day, it was those who enabled it who ended up collapsing. That's where the money was."
As an example, YouTube — the sister video site of the company rumored to be purchasing Twitch, remember — was famously sued by Viacom for $1 billion in damages from the latter's copyrighted content being posted on YouTube by users. Judges ruled in YouTube's favor multiple times and the matter was eventually settled, but Google still had to weather years of a stressful, expensive legal process.
Viacom didn't go after YouTube until after it was purchased by Google, after it had grown to a certain size. It waited until that's where the money was.
And now Twitch is in the same position. Earlier this year, the Wall Street Journal revealed that Twitch commands the fourth-highest percentage of peak internet traffic in the United States, beating out sites such as Hulu and even Facebook.
In a blog post at the time, Twitch responded to the news: "We're really playing in the big leagues, here. And we mean to step up." Protecting itself from a money-hungry music industry is one of the first and biggest parts of "stepping up."
Shear even owned up to this in response to a question on Reddit: "You can choose not to believe me, but the music industry doesn't think that music licensing is a joke and we don't either."
"We're really playing in the big leagues, here. And we mean to step up."
I can accept that. The question is, how quickly can Twitch improve the function of its audio-identifying tools? And how smartly can it react to the (in many cases well-deserved) anger of its massive user base?
For all the concerns and uncertainties, the broadcasters I talked to still have faith in Twitch and plan to stick with the service for the time being. Blakeborough said a move for Desert Bus for Hope is unlikely. "If we find another service that is going to provide something new for us and not have this problem, we might consider it," he said. "But Twitch has been a really great partner. They've been very supportive of their streaming community, so I just have to take them at their word. I don't think this is insurmountable."
Love had trouble even remembering the names of any Twitch competitors that he could even consider moving to. "Right now, there's nobody even close to offering the services that Twitch does," he said. "The sites themselves could be great, but they're floundering because there's just not that many people going to the site. My channel has grown because it's grown on the shoulders of Twitch's even more gigantic community at large."
Days after the initial announcement, Twitch is still spending a lot of time clarifying language and trying to solve problems. During his session on Reddit, for example, Shear confirmed that original in-game music was not supposed to be targeted by Audible Magic — a major point of contention that was unclear in the initial blog post. Later, the company announced that it was removing the two-hour limitation on highlight clips and adding a much-needed "appeal" button to videos that have been muted.
These changes are an important start toward appeasing frustrated broadcasters and viewers, but more will need to be done. Twitch has wisely protected itself; now it needs to give its audience a renewed reason to stay invested.
"The worst-case scenario would be viewers and content creators leaving, because that's all they have," Blakeborough said. "Justin.tv shut down this week. It's not because the website or the branding or the technology wasn't great. It's because they didn't have the community that Twitch does."
[Note: We reached out to Twitch for this article, but the company declined to give any interviews at this time.]