I wrote the other week about the Google/Twitch thing looking like it was a done deal, but back in May, when the potential purchase was first announced, I wrote this piece, in which I pondered what impact Google acquiring Twitch could potentially have on the vibrant and international gaming community that comprises the latter. To cut a long story short, one of my main concerns was that Twitch would slowly, yet surely, start to operate like YouTube does, particularly in regards to getting all “copyright infringement Po-Po on our assess” and suchlike.
Yesterday, Twitch sent out an email informing its users that it will begin to scan VODs “for music owned or controlled by clients of Audible Magic”, which “includes in-game and ambient music”.
After initially fist-pumping and shouting “CALLED IT!”, I suddenly started to get a sinking feeling, because (petty, short-lived joy at being right notwithstanding) that could easily be the first step on a very slippery, very, erm, slope-y slope.
Now, it’s easy to get ahead of ourselves here, and even the timing of this might just be coincidence (i.e. nothing to do with Google acquiring Twitch), but even though, initially at least, this will only apply to VOD stuff (not live streaming) you don’t have to be that much of a pessimist to see it as an ominous sign of things to come.
And don’t get me wrong, I’m not advocating for a total Copyright-less free-for-all, but there are definite concerns with regards to (dis)proportionality, enforcement, not to mention the sheer imbalance of ‘gamer in their bedroom’ vs ‘a coalition of entertainment conglomerates backed up by a Simpsons-esque army of copyright infringement lawyers’.
So, briefly, let’s say you’re an avid Twitcher, with a reasonable (but not massive) amount of followers/subscribers, who will watch you streaming when they can, and browse your archives when they can’t. Statistically, there’s more chance that it’ll be the latter, because of, like, life and work and shit being, you know, a thing. Now, that’s a bona fide little community, right there, and I think in most cases, it’s fair to say it probably won’t have developed around an intention to defraud, mock or otherwise deny revenue to the “entertainment industry”.
However, when the Audible Magic software starts doing its thing, “intention” (or lack thereof) will mean exactly the square root of eff-all. As it creeps around your archives, it will automatically mute anything it “feels” infringes on its clients’ copyright. BOOM – game over. A few seconds of “uncleared” audio within a 30 minute sample, and that’s a full 30 minutes of silence for you!!
That’s the disproportionality bit!
And in terms of enforcement, Twitch have already stated that “if third party audio is detected anywhere in the 30-minute scanned block” you will be automatically and outright muted, with you then having the right to appeal afterwards. But, they’ve also said that “Audio Recognition is not guaranteed to be 100% accurate”, and that “it may return false positives”.
Essentially, the upshot of all of that, is that you’re automatically guilty until you can prove you’re innocent, which, I’m sure we can all agree, is pretty much the exact opposite of pretty much every judicial system in the civilised world. There’s no warning here, or no, ‘hey, we think you might have an issue with this video, can you sort it out, maybe even just remove those few seconds, please!?’; just 30 minutes of silence.
And this is where we get to the imbalance/David vs Goliath stuff. This right to appeal, is, I’d guess, likely to be a bit of a kerfuffle. The email I got yesterday says:
If you believe that your video has been flagged improperly and that you have cleared the rights to all of the sound recordings in your uploaded video, then we will consider unmuting your video if you send us a counter-notification that is compliant with the provisions of the Digital Millennium Copyright Act (“DMCA”).
Which definitely sounds like a bit of kerfuffle to me, and more importantly, doesn’t really help you AT ALL if you’ve been flagged improperly (still, I’m sure it won’t be a problem, right, what with software always working perfectly – said nobody ever!!). And whilst bigger twitch users (say your IGNs, official developers etc) might have the capacity to either pre-clear stuff, or fight enforcement after the fact, the aforementioned gamer in their bedroom probably won’t. I, for one, wouldn’t even know where to start to get clearance or one of those DMCA whatsits.
To illustrate that point, by the way, it might be worth mentioning here that a big part of the reason Google do this sort of thing on YouTube in the first place is that it’s just sooooo much easier and cheaper to be pre-emptive, rather than deal with all the litigation and legal shenanigans afterwards, so if Bajillionaires Google, with their own army of lawyers struggle, how in the hell would gamer in their bedroom fare, d’ya reckon?!?
Admittedly, that’s an exaggerated scenario built with a fair degree of extrapolation, but nevertheless it highlights the absurdity of copyright stuff, as it currently stands. And let’s be clear, nobody, as far as I know, is using twitch to stream or watch just music or film for free, so we’re not talking about pirating and profiting directly from ‘stolen’ intellectual property either. In the vast majority of cases, infringement is going to be accidental, incidental (i.e. it appears in the effing game anyway), or because of a complex distribution/usage contract made between the game developers and the copyright holders stating x, y or z, but which your average gamer is going to have no idea about at all.
Likewise, I’m also fairly certain that nobody’s ever thought, for example, ‘I can hear song x on gamer in their bedroom‘s Twitch archive, so, like, I’ll never bother buying it or downloading it’ either, so you’ve kind of got to ask why this is such a big deal anyways, right!? If anything, I’d say the opposite would probably happen, and people are more likely to buy/download a track they’ve heard and liked, thus increasing revenue/sales!!
Finally, I get that Twitch (and/or Google) don’t want to get constantly hit with infringement suits, and I get that the Copyright owners themselves don’t want people making money off their shit, but suuuuurely, this is a ridiculous over-reaction, and more importantly, one that hasn’t quite been thought through properly. I mean, if a place that is, essentially, about watching and listening to people playing videogames, starts stopping people listening to videogames because the sound of the games themselves is breaching copyright (even if it was cleared to be in the game initially), hasn’t the whole world just gone daft!?
Anyways, here endeth my rant, but if you’ve got your own opinions, feel free to tell us what you think in the comments below. Am I overreacting, or is this something gamers and Twitch users should be angry or concerned about??