Daniel Bunting Street Performers on the Information Superhighway: A Secondary Liability Theory for Mediashare on Twitch I. INTRODUCTION Perhaps no industry has had more trouble coping with emerging technologies than the music industry. In a field once dominated by sales of records and CDs, the ease with which the Internet allows potential customers to access files free of cost has fundamentally altered the relationship between musicians and consumers. In some cases, musicians can ally themselves with emergent technology and seek some share of the benefits. The industry has done a marvelous job doing this with YouTube, for example. 1 In other cases, such as Napster, the music industry has had to seek legal remedies to protect its interests. 2 Every time a new technology potentially infringes the rights of copyright holders, those copyright holders have a spectrum of legal and business options to deal with the threat; the above examples represent the poles of this spectrum. The decision on how to proceed with any given technology is driven by a variety of legal and business considerations including what the legal options actually are, how much economic benefit there is to any one option, and whether that solution is going to be a permanent fix to a problem to name only a few. This paper deals with this question of copyright holders’ options in the context of StreamLabs’ mediashare program for use on the multimedia platform Twitch. The first part of this analysis breaks down the parties involved and explain the role they play in the analysis. The second part of this analysis outlines the legal theories which form the 1 Robert Elder, YouTube Distributed Over $1 Billion in Ad Revenue to the Music Industry This Year, Business Insider, http://www.businessinsider.com/youtube-pays-out-1-billion-to-music-industry-2016-12. 2 A&M Records, Inc. v. Napster, Inc, 284 F.3d 1091 (9th Cir. 2002). basis of any action against StreamLabs. The final part of this analysis discusses the application of those legal theories to StreamLabs’ mediashare program. Twitch is a multimedia website similar to YouTube, but focused on hosting live-streaming content rather than videos. There is no legal distinction between a live-stream and a video for the purposes of copyright; the differences are more factual in nature. The Twitch service consists of both a video window displaying live-streamed content and a text-based chatroom that viewers can use to discuss the live-streamed content in real time. The chatroom is one of the key elements distinguishing Twitch from YouTube; it allows viewers of a broadcast to discuss what is happening on a stream both with each other and with the streamer in real time. This feature creates a dynamic where viewers can impact a broadcast while it is happening by having real time discussions with a broadcaster. This has the effect of massively increasing the audience’s emotional investment in a particular broadcaster by creating a much more personal relationship than exists in traditional pre-recorded media. While not as large as YouTube, Twitch has grown rapidly and now hosts 15 million active daily users watching content produced by over 2 million individual broadcasters or “streamers.” 3 Streamers are like street performers on the information superhighway. They broadcast live streams on websites like Twitch or YouTube, and those streams are freely accessible to any who want to watch. Many of these streamers attempt, either successfully or not, to make a living out of their broadcast through various methods of monetization. Mediashare is one of these methods of monetization, but not the only one. Members of a streamer’s audience can “subscribe” to a particular twitch streamer for a small monthly payment, part of which goes to the Twitch website 3 Twitch, https://www.twitch.tv/p/about (last visited Oct. 29, 2017). 2 and part to the streamer. 4 Streamers also often have links on their page through which audience members can donate money if they enjoy a particular broadcast, similar to throwing a few dollars into a street musician’s guitar case. The viability of these methods of monetization, which rely significantly on audience generosity, is tied to the personal relationship created between a streamer and his or her audience. Viewers are those people who choose to watch a streamer’s broadcast. For the purposes of this analysis there are two types of viewers: the purchasing viewer and non-purchasing viewer. The non-purchasing viewer is essentially just a passive audience member, all he or she is doing is watching the broadcast. The purchasing viewer is one who chooses to pay money through the mediashare program in order to have his or her chosen song play live on stream. The key difference between these two types of viewers is one of passivity versus activity. A viewer is a passive consumer of a streamer’s media, while a purchasing viewer is taking active steps to impact the broadcast as it happening, particularly the affirmative step of sharing a song using the mediashare program. Which song a purchasing viewer chooses will likely depend on that person’s individual tastes, but there are no technological limits to what a viewer can choose as long as the song is on YouTube. This purchasing viewer’s action will constitute the direct act of infringement because mediashare is totally inert until a viewer chooses to pay money in order to play a song on stream. Without this direct act by the viewer no copy will be made; it is the equivalent of, for example, using a word processor to copy and paste the text of a novel. The word processor may technically be creating the copy, but that act of creation is instigated by the person operating the technology. That same example holds in the case of mediashare as well. 4 Id. 3 The growth potential of Twitch and its ability to have a significant impact on the market has been recognized by larger entities, and in 2014 Twitch was acquired by Amazon for $970 million.5 All of this potential growth is driven by Twitch’s streamers and the interactivity, which differentiates them from static videos. Twitch encourages streamers to engage with their viewers and create an interactive community, giving preferential monetization treatment to those streamers who accomplish this. 6 The most common example of interactivity is as simple as streamers answering questions that viewers pose through the live chat. Interactivity may also include a streamer raffling off prizes like gift cards, computer components, or video games to members of chat that are present to enter the raffle. An example of interactivity at issue in this analysis is mediashare itself, which allows a purchasing viewer to play a song of his or her choosing and receive an instantaneous reaction from a streamer. StreamLabs is a company that develops software tools that help streamers interact more effectively with their viewers. 7 StreamLabs only directly monetizes through the sale of its subscription pro service, which offers a wider variety of streaming tools than the free to use base StreamLabs program. 8 The StreamLabs company’s product is also called StreamLabs, and taken as a whole they offer such services as having the name of viewers who donate money appear on screen in real time, having the names of people who purchase Twitch subscriptions appear on screen in real time, and other such real time alerts. 9 The value of these alerts is tied to the 5 Douglas MacMillan and Greg Bensinger, Amazon to Buy Video Site Twitch for $970 Million, WallStreet Journal (Sept. 27, 2017), https://www.wsj.com/articles/amazon-to-buy-video-site- twitch-for-more-than-1-billion-1408988885. 6 Twitch, https://www.twitch.tv/p/about (last visited Oct. 29, 2017). 7 StreamLabs, https://streamlabs.com/features (last visited Nov. 13, 2017). 8 StreamLabs, https://support.streamlabs.com/hc/en-us/articles/223485348-Streamlabs-PRO (last visited Nov. 13, 2017). 9 Id. 4 importance of the real time chatroom that accompanies a Twitch viewing window. Having his or her name show up on screen draws attention to one particular viewer and allows that person a moment of appreciation from both the streamer and other audience members. One particular facet of the StreamLabs product platform is a program called mediashare. 10 Mediashare is a program that allows viewers who donate money to a Twitch streamer to attach a YouTube link to their donation and then have the audio for the music from that link automatically play on stream for all viewers to hear. 11 This technology transmits song data from YouTube to an individual streamer’s computer and from there to that streamer’s entire audience at the behest of a purchasing viewer. This process also leaves neither individual streamers nor StreamLabs any control over the data that is routed through mediashare; the underlying data exists on on YouTube and cannot be modified by an individual streamer or Streamlabs. Individual streamers enabling mediashare set the rate for this service on a dollars-per-second basis. 12 A streamer has full control over the specific cost-per-second that playing a song on stream will cost; the rate is set within the mediashare program. StreamLabs offers a webpage with an in-depth guide on how to set up and run mediashare, and this page mentions nothing whatsoever about copyrighted material. 13 It seems strange that a viewer of a stream would pay money to play a song that is freely available on YouTube, but this view ignores the emotional connection between streamer and audience as well as the importance of the chatroom.