The Music Industry Says Twitch's Music Licensing Is Skirting the Rules - Rolling Stone
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Twitch Licenses Music Now. But the Music Industry Says It’s Skirting the Rules

Industry leaders are concerned that Twitch’s new feature, Soundtrack, may be designed to avoid paying for sync licenses — which generate significant revenue for labels, publishers and artists

SAN DIEGO, CA - SEPTEMBER 29: Fans entering TwitchCon at San Diego Convention Center on September 29, 2019 in San Diego, California. (Photo by Martin Garcia/ESPAT Media/Getty Images)

Fans entering TwitchCon at San Diego Convention Center on September 29, 2019 in San Diego, California.

Martin Garcia/ESPAT Media/Getty Images

Twitch unveiled a new feature on Wednesday to give streamers easy access to rights-cleared music, after months of being criticized for not licensing music. Named “Soundtrack,” the feature is essentially an in-house streaming platform: It arrives with a sizable library from artists like Porter Robinson, Above and Beyond and Mxmtoon, as well as label and distribution partners like Steve Aoki’s Dim Mak, Anjunabeats and Future Classic. Like on Spotify, there will be genre stations and playlists curated by Twitch’s music staff.

But also like Spotify, the Amazon-owned gaming and streaming platform is facing a number of questions around how much musicians and songwriters are actually getting paid for their work.

At issue is why Twitch has only secured licenses for livestreams and not recorded video. Quick licensing lesson: To make a song “stream-safe,” a platform has to secure master recorded rights and publishing rights, usually from record labels and publishers, and mechanical licenses to “release” the music. (These are requirements for any music-streaming service). Additionally, parties that want to use music in a public setting, like in a café, have to get a public performance license. Lastly, if music is used in a video setting such as an advertisement, film, or recorded livestream, the party responsible needs to pay for a synchronization license.

Industry figures allege that Twitch has not taken out sync licenses — the most expensive of the bunch, and most revenue-generating for musicians. That, multiple sources say, both publicly and to Rolling Stone, is why Soundtrack has such a limited scope.

“It is a huge step backward for musicians,” Nate Beck, the founder of third-party livestream music player Pretzel Rocks, wrote in a blog post Wednesday evening criticizing the way Soundtrack is structured. “Synchronization comes from early days of talking pictures,” Beck tells Rolling Stone, referring to early 20th-century efforts to line up music and sound effects on discs to motion pictures. “In the truest sense of a sync — that’s what they’re doing.”

Twitch Soundtrack is designed so that music played will only be audible during the actual livestream. It separates audio into its own channel, so that no music appears in any archived versions of streams that are available to watch on-demand afterward — or in any clips fans make of their favorite streamers. Beck says Twitch takes advantage of “ephemeral use,” a tic in music law that allows for the brief airing of not-fully-licensed music in certain situations, like a song playing at an arena during a televised basketball game.

Beck also points out that Twitch also made Soundtrack non-interactive, which means users can’t select particular songs — and so the company may also be skirting mechanical licenses.

“Twitch Soundtrack is a workaround that isn’t designed or meant to pay artists, and it doesn’t fully protect the creators. It’s an attempt to protect Twitch.” — gaming lawyer Noah Downs

Twitch did not return comment regarding the Pretzel Rocks blog post, and declined to confirm which specific licenses were acquired for Twitch Soundtrack. But a person familiar with the matter says that Twitch has the “correct licenses for live” and that video-on-demand requires “a different set of licenses.”

Twitch’s head of music Tracy Chan tells Rolling Stone only that “our label partners and aggregators have given us rights that cover the use of their catalogs in live broadcasts worldwide through Soundtrack.”

Noah Downs, a lawyer at Morrison Rothman LLP who works in the gaming industry (and serves as general counsel for Pretzel Rocks), tells Rolling Stone: “The idea that playing music during a livestream does not require a synchronization license is wrong. It’s a bad interpretation of copyright law. It’s one that, quite frankly, reeks of desperation to solve the music problem, because the music is definitely synchronized in timed relation with images and video. Twitch Soundtrack is a workaround that isn’t designed or meant to pay artists, and it doesn’t fully protect the creators. It’s an attempt to protect Twitch.”

Many in the music industry have long been wary of the way Twitch and its parent company Amazon have approached music licensing issues. David Israelite, head of the National Music Publishers Association, notes that Amazon Music and Spotify are still fighting a pay increase to songwriters ordered by the Copyright Royalty Board.

And in July, Amazon CEO Jeff Bezos raised eyebrows when he said during his testimony before a House Antitrust Subcommittee that he didn’t know whether Twitch paid music royalties.

“Watching a video on Twitch is really no different than watching a television show or a movie,” Israelite says. “The people making television programing or movies — there’s no question that before they use music, they go out and secure the proper rights and they negotiate a fair compensation for the people who made the music, because they recognize they need that music to make the programing attractive to the viewer. Somehow, these giant Internet companies have convinced themselves that they should be playing under different rules.”

He adds: “Instead of acting like someone broadcasting television or movie content to consumers, they want to pretend that it’s the users making the content that somehow have all the responsibility, and not the platform — despite the fact that they are making significant amounts of money from the activity.”

In quarantine, with concerts axed, Twitch has also ramped up its music-industry ambitions — wooing artists who don’t otherwise have ways of reaching their fanbase. Logic signed an exclusive deal with Twitch, for instance, and Linkin Park’s Mike Shinoda made a whole album on Twitch this summer; many others are signing on to chat with fans. Twitch could see increased pressure on this front from its rivals, like Facebook Gaming, which announced full licenses for a library of music that includes selections from the three major labels, Universal Music Group, Warner Music Group and Sony Music Entertainment.

“Other competitors like YouTube and Facebook have confronted the exact same issue, and they’ve embraced the idea that they should license songwriters and pay them,” Israelite says. “Now, what we’re looking toward is for Twitch to take a similar action, or there’s likely to be conflict with Twitch over their use of music and their failure to do it properly. We’re not targeting this toward the consumer who is posting the content. This is really targeted toward the platform that easily can afford and knows how to get music licenses, but they choose not to.”

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