US music industry urges Amazon's Jeff Bezos to fix Twitch's licensing status

By Emmanuel Legrand 

The conflict between Amazon-owned live gaming platform Twitch and the US music industry has escalated over the platform's current lack of licensing agreements in place for both recordings and publishing. 

  ​In a letter sent to Amazon Founder and CEO Jeff Bezos and cc-ed to Emmet Shear, Chief Executive Officer of Twitch​, organisations representing artists, songwriters, musicians, vocalists, managers, producers, audio engineers, major and independent labels and publishers in the United States reacted to the news of Twitch’s recently launched its Soundtrack tool, which according to Twitch, gives the service's users "the ability to feature a curated library of licensed music in their live streams." 

  "We appreciate that Twitch has acknowledged that it is good business to offer licensed music for use by its streamers, and we welcome that Twitch has started to enter into some agreements with rights holders to provide licensed music for use by its streamers," reads the letter. "However, we are confounded by Twitch’s apparent stance that neither synch nor mechanical licenses are necessary for its Soundtrack tool. We are also deeply disappointed that Twitch continues to allow and enable its streamers to use our respective members’ music without authorisation, in violation of Twitch’s music guidelines." 

Appears to be doing nothing

  It continues: "We are further concerned that Twitch continues to host and widely make available unlicensed music on its platform despite the company’s announcements, most recently in June 2020, that it would remove such unlicensed music. Twitch appears to do nothing in response to the thousands of notices of music infringement that it has received nor does it currently even acknowledge that it received them, as it has done in the past." 

  The signatories add that they are "concerned" by Bezos's responses to questions regarding licensing made during a House Judiciary Committee hearing in July, during which Bezos was clearly asked if Twitch had been licensed. Bezos responded that he didn't know the answer to the question. "We note that you failed to confirm whether Twitch has acquired any licenses to make copies of musical compositions or digital performances of any sound recordings on your platform," reads the letter. "You also failed to state what action Twitch is taking to prevent unauthorised copies and performances." 

  They conclude by stating that Twitch’s "neglect of the fundamental rights of musicians, songwriters, sound recording artists, and many others whose music is exploited on Twitch without due compensation stands in stark contrast to Twitch’s competitors and to the support of such interests extended by Amazon’s own Amazon Music services. We hope you appreciate the gravity of the situation and will take proactive efforts to ensure that unlicensed music is not available on Twitch."

Agreements with rights holders

  The letter was signed by music organisations such as A2IM (American Association of Independent Music), NMPA (National Music Publishers’ Association), Recording Academy, RIAA (Recording Industry Association of America), rights societies such as Global Music Rights and SoundExchange​, and artist's representatives such as NSAI (Nashville Songwriters Association International), SONA (Songwriters of North America), Music Managers’ Forum and entertainment union SAG-AFTRA. 

  In a statement, Twitch refuted different points raised in the letter. First, for Twitch, Soundtrack "is a fully licensed service," and claims to have "entered into agreements with rights holders for the recordings and compositions included in the service. Soundtrack is not only a fully-licensed way for streamers to play great music in their live streams but also an important discovery tool for independent artists and labels." 

  Secondly, on the overall accusations of not being properly licensed, Twitch said it has "partnered" with dozens of labels, music distributors and promoters to ensure artists and songwriters have the opportunities to "connect with their fans, and generate income during the global pandemic." 

Compliance with DMCA requirements

  The platform also said it has "continued to support the music economy by paying royalties to performing rights organisations like ASCAP, BMI, SESAC, and GMR, and licensing fees to labels and publishers for the use of music in Twitch’s own productions and projects." It added: "We are contributing to the health of the music community, and we are proud of that." 

  Finally, Twitch concluded: “Let’s be absolutely clear, Twitch responds to each valid DMCA notification it receives by removing the allegedly infringing content expeditiously in compliance with DMCA requirements.” The row with Twitch coincided with an increasing number of Twitch users receiving Digital Millennium Copyright Act takedown notifications from the platform for copyright infringement. In many cases, the infringing content was deleted, which drew criticism from users. 

  Twitch's response does not appear to have lifted the concerns from the music sector. Speaking to Creative Industries Newsletter, Richard James Burgess (pictured, below), President and CEO of A2IM, said the issue with Twitch was "simply about the unlicensed use of music by a division of the largest, or one of the two largest companies of all time." Burgess said he had written to Bezos himself "several weeks prior to this letter and did not get a response," although, he added, he did get "a call" from Twitch. "They were intransigent, [so] A2IM is considering its options," he said. "All options are on the table," according to Burgess, including litigation.

  "It is worth noting that we have been down this path too many times in the music industry: In 1942 when radio started to use recordings for free and we still don't get paid for that use, in 1982 with MTV, 2005 with YouTube, and there are many other examples," said Burgess. "The tech company's 'ask forgiveness, not permission' doctrine, has not produced a fair and equitable result for artists, musicians, singers, producers, songwriters, labels or publishers."

Twitch is not a start-up!

  He added: "What it has produced is gigantic corporations with unassailable lobbying power that they use against the recorded music industry. The idea of giving a company a break in the beginning has always resulted in a lack of leverage later for the recorded music industry and less than optimum treatment by the tech companies when they achieve scale."

  For Burgess, the "incontrovertible fact here is that Twitch is not a start-up with limited angel investment or VC capital and a short runway; they are not building towards an IPO for which they might need to clean up their act." The solution is simple, according to the A2IM leader: "They need to negotiate market rate deals with the organisations that negotiate such deals. They need to not offload this responsibility on to the gamers/content creators on their platform. They too are creating value for Twitch and, undoubtedly, being under rewarded for doing so. Twitch needs to do what some other big platforms have done and demonstrate an understanding of the symbiotic relationship and goodwill towards all creators by paying them a fair share of revenues generated by their work."