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Andrew Masson is an IPilogue Writer and a 1L JD Candidate at Osgoode Hall Law School.

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Popular Twitch streamer Jeremy “Disguised Toast” Wang has exposed a massive flaw in the live-streaming platform Twitch’s . For those unfamiliar, Twitch is a live-streaming platform where content creators (i.e., streamers) broadcast themselves to an audience doing almost anything including playing video games, cooking, making music, performing ASMR, walking around in public, debating politics, etc. Viewers can tune into Twitch streams for free, but streamers and Twitch make money through viewers subscribing or donating. Twitch has been featured on the IPilogue in the past (relating to , , and the ) but this case is unique as it involves a different form of copyrighted media: TV shows.

Twitch Popularity

Since the start of the pandemic, live-streaming services have seen a massive increase in viewership. Twitch specifically in 2020 compared to 2019, with viewers clocking over 17 billion hours on the platform. It also gained more mainstream appeal, with American politician in 2021. With the increase in viewership, there is more money to be made and more people who have started streaming; streamers must now compete to attract and maintain viewers by providing engaging content. In the last couple of weeks, this has led to the “”, where streamers broadcast copyrighted TV shows and react with their viewers. feature and took it to the extreme by streaming an entire season of the popular anime Death Note over two weeks.

DMCA and Twitch

Wang had a fellow streamer initiate takedown claims against his broadcasts under the (“DMCA”) but was still able to stream Death Note for two weeks before Twitch acted against him. In , the IPilogue questioned how the DMCA will impact video hosting platforms. The DMCA protects platforms that host user-generated content against litigation; however, to be eligible, the platform must investigate and take down allegedly infringing material. Accordingly, states that when they are contacted regarding copyright violations or receive a takedown notification under the DMCA, they verify the claim and then issue a “DMCA strike” (signifying a confirmed copyright infringement) and a temporary ban against the streamer. Twitch has a 3-strike system—once a streamer receives three DMCA strikes, their account will be permanently deleted. Wang previously had not received any DMCA strikes and stated that he broadcasted Death Note as a warning to other streamers against broadcasting copyrighted material.

Wang’s experiment may have failed to scare other streamers because it took so long for Twitch to take action, but he did expose a massive issue with Twitch’s ability to protect copyright holders' interests. Twitch is not the first streaming platform to face these issues; in 2007, and a billion dollar lawsuit. This led to the creation of YouTube’s “Content ID” system to monitor posted videos and livestreams for music and other copyrighted material. However, not all forms of copyrighted material will be taken down on Twitch or YouTube as video game developers and publishers do not necessarily issue DMCA takedowns for streaming their released games.

Given that Twitch started as a niche platform consisting almost exclusively of people live-streaming video games and playing music from 2011 to 2019, they rarely received DMCA takedown requests. According to Twitch, they received fewer than 50 takedown notices a year before 2020; however, as streaming became more popular, increased exposure caught the attention of the music industry who began issuing . This resulted in Twitch implementing tools to check vods (i.e., recorded streams or clips saved by streamers), delete any with copyrighted material, and warn streamers to stop playing copyrighted music during their streams.

Future of Twitch

As Wang demonstrated, Twitch’s ability to police copyrighted material on their platform is still far behind that of YouTube. They seem unequipped to handle their massive increase in popularity and evolution in types of material live-streamed. Apart from music, Twitch is in the same position that YouTube was many years ago; they need to improve their ability to protect IP or risk losing protection from liability under the DMCA. This is significant because one of the media giants whose IP is being used may decide to go after Twitch as a platform instead of individual streamers.

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Emily Xiang is an is an IPilogue Writer, President of the Intellectual Property Society of Osgoode (IPSO), and a 2L JD Candidate at Osgoode Hall Law School.

There is no question that the virtual gaming and e-sports industry has seen exponential growth in the last decade or so. In 2021, global e-sports revenue is said to have reached a whopping USD, and is projected to increase to $1.6 billion USD by 2024. Moreover, there are currently about who are said to be following e-sports worldwide, with that number expecting to climb to 577 million in the next few years.

Part of what makes the question of intellectual property in e-sports so unique is the myriad of overlapping rights that exist, being held by a including game designers, sound engineers, programmers, user interface developers, the players themselves, broadcasters, event/league organizers, advertisers, sponsors, and even spectator fans. But among these actors, whose rights can really be enforced? E-sport tournaments are an amalgamation of various intellectual contributions from a variety of actors. This is in stark contrast to traditional sporting events—after all, it cannot be said that !

It is accepted that the copyright (or the to the source code, maps, sound effects, and characters of a game is . As a result of the considerable power held by video game publishers in the e-sports industry, the associated IP regime is often considered as having a , in which a few actors own all the IP. Game publishers can decide what teams/players may compete, who may host tournaments, and how tournaments are advertised and broadcasted.

However, much of this power is effectuated through end-user license agreements or applicable terms of service with individuals and tournament organizers. Moreover, these rights can then be further assigned to others through contractual means. For instance, in 2015, a Twitch streaming channel named , another video game streaming service. SpectateFaker had broadcasted games played by popular e-sports player Lee Sang-hyeok. Azubu, having contractually obtained the exclusive streaming rights for Sang-hyeok’s games, filed a complaint against Twitch alleging copyright infringement. Interestingly, Riot Games—the publisher who owned the copyright to the game—was not involved in the dispute at the time. The matter never ended up being litigated.

Other disputes have arisen involving video game copyrights, though none such matters have yet to meaningfully challenge the status quo of the “top-heavy” e-sports regime in the courtroom. For instance, in the late 2000s, , including from Korea e-Sports Association (KeSPA). After years of failed negotiations, Blizzard decided to license the exclusive right to broadcast its game StarCraft to another South Korean organization and brought lawsuits against KeSPA.

The matter was ultimately settled outside of court, but it calls into question whether any other actors in the e-sports industry can assert some kind of right to their content. For example, can players enforce some kind of copyright or performer’s right in their gameplay? Many argue that mere gameplay or one’s “style of playing” is comprised of , that it , or that it is to be protected by copyright. That being said, it may also be argued that skilled gamers employ the use of considerably nuanced , which ultimately dictate how the game will go.

The gaps and barriers between IP and e-sports certainly will stop at copyright protection. As the industry continues to grow, we can expect to see more IP-related disputes, including ones involving for things like game titles, gamer tags, team brands and merchandise, or even popular characters, as well as protecting gaming consoles, software programs, and user interfaces. Several gaming patents have already been filed, such as U.S. Patent No. 8,882,576, or , which denotes an algorithm that evaluates the proportionate dependence of an outcome on skill versus chance. And while traditional sports and entertainment industries have long been regulated by established rules and best practices, Canada in particular has (as stated by Erika Carrasco, partner and chair of Field Law’s Emerging Technologies Group). Having a robust IP strategy in place for such a rapidly developing industry with enormous economic prospects makes the most sense.

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Junghi Woo is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

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The pandemic has not only confined many of us to our own homes, but has undoubtedly led many of us to rely on one main source of entertainment: the Internet. Gone are live shows, concerts, and plays. Live streaming of musical performances existed before the pandemic; now they are no longer a mere alternative, but the only option for viewers.

Although live streaming of E-sports and entertainment gaming were popular pre-covid, the sector within the first two months of the pandemic. This popularity increased revenue and attracted many questions regarding the risks that streamers face regarding their intellectual property. For example, it was estimated that yearly solely from his activity on

Infringing Background Music

While gaming streamers gain followers and viewers (and profits) based on their entertaining personalities, recently, their recorded content has been taken down due to In the U.S., copyright protection flows from the . depend on the rules created by any given platform and its existing licenses. Despite how society historically viewed online gaming, some gamers’ whole livelihoods undisputedly depend on playing video games and streaming it. With every takedown, users get a “copyright strike” from Twitch. After three strikes,

The Gameplay

According to Canadian copyright law, when a streamer live streams their gameplay, they are technically exercising their “performing in public” right pursuant to section 3 of the Copyright Act. The video game contains codes and text elements that would be considered literary works, and graphics that would be considered artistic works, both of which are copyright-protected subject matters. In live streaming their gameplay, the user would be communicating the graphics, text, and the audio of the game, all done without the copyright owner’s consent. Therefore, a case for copyright infringement could be established.

But Live Streams Still Exist?

There is no settled case law on issues of live streaming yet; however, gaming live streams may legally continue in one of two ways: as copyrightable work, or through the defence of fair dealing.

Though the actual video game has many copyrightable components, the user’s actual live stream may also be as a dramatic work. What the user says and how they play the game can be seen as original work. The streamer’s ideas are expressed through words and gameplay and the content itself is fixed in a video/audio recording format.

Alternatively. However, the streamers’ commercial benefit may prevent their use of the fair dealing exception.

Furthermore, game publishers purposely may not pursue action because of Such benefits would also depend on the type of game users play: story-based games may instead see economic losses caused by live-streamed spoilers.

What’s Next?

Although much of the action seems to be from our neighbours in the south, Canada is no different. Canada is home to many Twitch streamers and the community seems to be growing. If users and game publishers continue to “co-operate”, this issue may never be addressed at law in any country. Music publishers may feel differently, as users are starting to get fed up with constant takedowns following their use of copyright-protected music. Only time will tell whether legislative intervention is needed, but for now, all we can do is like, comment and subscribe.

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Any software program that performs repetitive tasks may be called a bot. Many bots are useful or benign, but there are also harmful versions, including those that generate fake traffic to websites and fake clicks on advertisements. For companies that rely on viewer numbers to sell advertisement space, assess popularity of content, and pay content producers, .

Twitch streams content created by members of the site, allowing other users to watch and chat about the videos. Much of the content is live streams of members playing video games, but Twitch also streams tabletop gaming and non-gaming content like and .

The site monitors viewership for particular channels to help people find the most popular (and presumably highest quality) channels. They also use viewership to select channels for admission to the Partnership Program, which offers creators a share of the advertising revenue generated by their channels. Some creators deploy fake viewer bots in order to take advantage of the benefits Twitch offers to more popular channels. Channels may also be botted by spammers or by competitors who want to flood a channel’s chat with inanities to drive away or drown out real conversation.

Twitch’s legal strategy appears to be spaghetti-inspired – throw defendants and claims against the wall and see what sticks.

According to the complaint, most of the defendants openly sell bot services on sites with names like , , and . Twitch broadcasters can buy fake viewers for their channels and fake comments for their chatrooms. One of the defendants allegedly owns both Stream-Viewers, which openly sells bot services, and Babatools which sells software that allows Twitch broadcasters to create their own fake traffic. Although Twitch claims that the owner of TwitchStarter is also offering bot services, he claims to offer only legitimate promotional services and membership in a group of broadcasters who agree to follow each other.

Twitch’s statement of claim puts forward nine different legal arguments, ranging from trademark infringement to breach of contract to violations of the (CFAA).

As , the CFAA claim is shaky. The statute is meant to criminalize hacking secured systems. It should not be extended to protect against registering accounts on a publicly-accessible website, even if those accounts are meant to be used in a manner that is contrary to the website’s .

The trademark and cybersquatting claims may be met with a nominative fair use defense.��Nominative fair use was developed by the 9^th Circuit Court of Appeals in . They held that a newspaper could not reasonably conduct a survey about the New Kids on the Block without mentioning the name of the band. Likewise, it would be difficult to describe services specifically related to Twitch without using the word “Twitch.”��In , the 9^th Circuit specifically addressed domain names, finding that nominative use of Toyota’s “Lexus" trademarks in the Tabaris’ domain names was fair use as long as the websites did not create confusion about an association between the defendants and Toyota. Since the defendants’ websites typically highlight the steps they take to avoid detection by Twitch, there is little chance that anyone would think Twitch owned or endorsed those sites.

However, there are some facts that may distinguish the case at hand from Tabari. The Tabaris were using the “Lexus” trademark in descriptive URLs for their business, but the actual business name did not contain the “Lexus” mark. In this case, several of the websites are using the word “Twitch” directly in the name of their service. Many of the sites also employ a purple colour scheme and graphical elements similar to the Twitch logo. The court in Tabari��was careful to note that acting as a broker for Lexus vehicles was not illegal or contrary to the contracts between Toyota and their dealers. As bot services are illegitimate, using protected trademarks to describe them may not be considered fair use.

The core of the claim rests in the breach of contract and fraud arguments. The defendants must have registered accounts on Twitch in order to develop and test their software. When registering, they would have agreed to the plaintiff’s Terms of Service, including restrictions on botting and circumventing security features. Twitch claims that the defendants breached the Terms of Service by developing and selling their services and by inducing content creators on Twitch to use the platform in an illegitimate manner. Twitch’s fraud claims are based on the fact that the defendants represented that they intended to abide by the Terms of Service when they signed up for a Twitch account despite their illicit intentions.

While researching this post, I visited each of the websites listed in the complaint. The websites of two of the defendants, Twitchswiss.com and Streamhomies.com, have already been taken down. Regardless of the outcome of the lawsuit, by making a show of strength Twitch may already be getting what it really wants: for illegitimate bot services to go out of business.

Jacquilynne Schlesier is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.

[1] Twitch Interactive, Inc. v. Justin Johnston et al, California Northern District Court case number 5:2016cv03404, filed June 17, 2016.

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