Livestreaming and IP Law: Reaction Meta Meets the DMCA

In the online world, the Digital Millenium Copyright Act (DMCA) is the prevailing intellectual property (IP) doctrine. It criminalizes the distribution of copyrighted works via digital technologies. But there’s more to the story. The DMCA has its limits. Fair use limits the reach of the copyright law and allows, in specific contexts, for the display of copyrighted works without licensing it.

You can read more about the DMCA, fair use, and IP in our previous blog. There, we discussed how livestreaming poses unique questions in an unchartered legal landscape.

Now – what happens then when a live streamer displays copyrighted materials within a 4-8 hour stream? Where does fair use end and the DMCA begin? These questions were at the crux of a recent controversy between hegemonic Twitch livestreamers and the IP giant Fox.

 

What is Reaction Meta?

“Reaction content” is a popular form of user-generated content on YouTube and Twitch; this genre is defined by a content creator reacting to content ranging from user-generated content by other creators or traditional media such as the news, TV shows, and movies.

As platforms become more saturated with creators, reaction metas become increasingly ubiquitous. It’s not uncommon to see a reaction of a reaction of a reaction: a multifold meta.

 

The Copyright Battleground of TV Reaction Meta

Social media platforms rely on user-generated content; it populates feeds and fixates users’ attention. Content is king. And for live streamers, react content is the king of kings. However, due to the nature of the genre, broadcasting copyrighted material is inherent. You cannot produce react content without something to react to. 

And this tension made national news when ‘Fox’ delivered a mass of DMCA strikes against top Twitch streamer Hasan Piker for live reacting to “Masterchef.” These strikes have severe ramifications for creators. Many streamers and YouTubers who receive strikes can be subject to temporary suspensions or total bans. If social media is your job, bans are like being fired without severance.

In Piker’s case, he was not suspended but did cease his “Masterchef” meta until a startling revelation: the claim was fraudulent. Twitch retracted the DMCA notice from ‘Fox’ after reviewing evidence that pointed to its fakeness. Alternatively, Twitch streamer Imane Anys was suspended for streaming episodes of the anime “Avatar: The Last Airbender” per a DMCA strike by Viacom.

 

Lacking Legal Precedent

There is little legal guidance in determining fair use in livestreams. Broadcasting video gameplay – one of the most popular genres of livestreams – went mostly unchecked until Nintendo requested DMCA takedowns of nearly 400 gameplays. However, for the most part, gameplay of the pure source material has consistently dodged the hammer of the DMCA by enmeshing itself into the safe zone of fair use.

But for TV reaction meta, its status as ‘fair use’ or ‘infringement’ is still being contested. Because DMCA strikes allow creators and copyright holders to avoid litigation, the courts have had little opportunity to establish a precedent.

Beyond react content being arguably transformative, many copyright holders see the benefit of exposure from livestreamers. The DMCA relies on copyright holders to seek remedy for infringement. If they see no violation, this does not necessarily mean the usage of copyrighted content would be considered fair use in court. However, it still gives content creators freedom to utilize content without formally licensing it; It’s a silent gesture of approval.

Intellectual property law and the DMCA are constantly being tested in our ever-evolving digital world. And there are no easy answers. But we’re here to help. The IP attorneys at Richard Rodriguez and Skeith can help you navigate IP law and help you protect your assets or yourself. Contact us today to get started.