Safe Harboring eSports Broadcasting
A primary player within the eSports arena is the League of Legends, which is currently in the center of a complicated copyright dispute. Among the participants in this issue are Twitch, Azubu, and Riot. The dispute centers around “SpectateFaker,” a Twitch stream that released raw footage of Lee “Faker” Sang-hyeok’s games through OP.GG. The stream became increasingly popular, thus creating frustration for the copyright holder.
As the exclusive right holder for Faker’s streaming platform, Azubu believed that the Twitch stream was effectively draining its business. Due to the perceived hindrance on its business, Azubu filed a complaint, under the Digital Millennium Copyright Act (DMCA), against Twitch. The complaint alleged that SpectateFaker infringed Azubu’s intellectual property (IP) rights. Subsequently, Twitch place a 24-hour restriction on SpectateFaker broadcasting and cleared its archives, episodes, and highlights from its website. Although this may seem like a straightforward lawsuit, Azubu is only the exclusive IP right holder to Faker’s broadcasting. Riot is the IP holder to the game’s actual content.
Copyright infringement within eSports
The Copyright Act provides copyright holders with the exclusive right to publicly, perform the work, and to reproduce copies of the work. Along with those rights, copyright holders may license their protected work to others for use within the holder’s discretion.
Twitch streams usually include a substantial amount of content. Specifically, the streams display the game, commentary by the individual player, the name of the player, video showing the face of the player and background music. Each of the various types of content implicates a separate copyright. Riot owns an exclusive IP right to the game; however, the game’s publisher solely owns the game’s images, sounds, and code. Although Riot has the right to prevent others from streaming its game, it retained a blanket policy that allows anyone to use the League of Legends IP for fan purpose whether it’s free or generating ad revenue.
The DMCA’s Safe Harbor provision
The safe harbor provision of the DMCA shields service providers from liability for copyright infringement under several circumstances. A service provider may not be liable if it does not have actual knowledge of the infringement. Further, liability may not be imposed if the provider is not aware of facts or circumstances surrounding the infringement, but upon obtaining such knowledge or awareness, acts quickly to remove or disable access to the infringing material. The reason for the safe harbor provision is that service providers have a high volume of work placed on their platforms that contain copyright infringing material that they are unaware of and unknowingly publish. Without the provision, many service providers would incur copyright liability.
How does this provision apply to this dispute?
SpectateFaker has express rights to broadcast the stream as stated on Riot’s website. Since Azubu does not hold a valid copyright to the game’s content, SpectateFaker’s use of the material is not violating Azubu’s rights. In order to have a successful claim against SpectateFaker and demand removal of game’s content, Azubu would have to be the copyright owner. Subsequently, Azubu’s action created self-imposed liability through a misrepresentation because it knew it was not the copyright holder of the content.
Although Azubu pays a substantial amount of money for exclusive broadcasting of Faker, it does not have the legal claim against SpectateFaker. Azubu’s lack of IP rights prevents it from having any successful claim of infringement that would remove the content from Twitch. However, there’s possibly a conflict with the use of the name Faker. Azubu has personality rights to use Faker’s name when streaming his content, and SpectateFaker is also using the name to promote its own stream. The problem with a claim in that instance is that Azubu only has exclusive rights to the name for each individual streaming session and SpectateFaker has not impact on that right.
Twitch receives direct protection from the DMCA
Twitch is allowed to continue providing content under the DMCA framework without receiving direct liability that may be imposed under copyright law. Since Twitch is such a large provider of various eSports content, it is nearly impossible to monitor the site for all infringing content. The best way for Twitch to avoid liability is to remove any infringing content from its site once the content is identified. Although some critics expect a site like Twitch to be held to a higher standard for infringement, this is the first incident of this nature for Twitch which means it implies that it functions in accord with IP law.
A customer support member of Riot, the actual IP right holder of the game’s content, believes that SpectateFaker should have asked for Faker’s permission before streaming his gameplay. The importance of seeking permission is the courtesy of notifying the gamer that his gameplay is being broadcasted to a large eSports audience on the internet. Riot’s president also provided his own opinion on the dispute, stating that the company loves the content that the community creates, but it is important that players are protected when they create content for the League community.
Riot’s legal team has allowed players to present their own content on platforms like Twitch and YouTube. With the rebroadcasting of player’s specific games becoming an issue, it is essential that companies combat it strategically because of all the parties involved, as shown in this dispute. Riot is working with its partners to ensure that they are aware of Riot’s stance on player creative content to prevent third party copyright claims for content that Riot itself owns.
Riot should be investing in finding a solution to this issue. Companies like Azubu create a potential risk for limiting the scope of Riot’s IP rights in relation to the content it chooses to publish.
Image courtesy of Flickr user Sam Churchill