The video game streaming business looks highly appealing in theory. However, like any business, you must stay privy to potential legal liabilities to keep things running smoothly. In the streaming world, this especially pertains to copyright law, so is streaming video games legal?
Is Streaming Video Games Legal?
Streaming video games is legal. Most game streams fall under the “Fair Use” rule of copyright law. However, there are exceptions. For example, streaming pirated games is illegal. Copyright holders can also file a DMCA notification with Twitch at any time if they feel the stream violates “Fair Use.”
Read on to learn when it’s legal or illegal to stream video games. We’ll also address why other media, like movies and TV shows, aren’t permitted to stream. If you do violate copyright law on Twitch, you’ll learn about the disciplinary actions you might face!
Note: None of the views in this article is a substitute for legal advice. Please consult a legal expert for counseling specific copyright cases.
Do You Need Special Permission To Stream Video Games?
You may need special permission to stream video games, contingent on the circumstance. For example, streamers need special permissions to stream game betas and demos not released to the general public. Some publishers also have restrictions regarding what parts of a game you can stream.
With so many video game streams airing online, it’s hard to believe that any of it could be illegal. After all, game streaming can be a mutually beneficial practice for streamers and publishers because it gives streamers something to stream and helps get publishers games out to the public.
With this being said, most video game streams fall under what’s called the “Fair Use” rule in copyright law. So, what exactly constitutes “Fair Use?”
“Fair Use” allows unlicensed use of copyright-protected works for specific purposes. Some examples include criticism, commentary, education, news reporting, or research, among other things.
If you’re still unsure if your game streaming meets these standards, here are some tenets to follow:
Purpose and Character of the Use
Intentionality is a significant tenet of fair use. Most of the time, non-profit and noncommercial use falls under this tenet, but not always.
Instead, a more likely factor is whether the use is ‘transformative’ or adds new meaning to the original work. For example, video game streamers showcase their perspective and connect with other players to create a community experience.
Nature of the Copyrighted Work
When analyzing a copyrighted work’s nature, consider if the work is a creative expression itself. Factual pieces, like news articles, often fall under fair use.
Furthermore, using unpublished works is usually not considered fair. Video games are creative expressions, so streaming technically violates this tenet. However, this tenet weighs against others and won’t disqualify your use on its own most of the time.
The Portion of the Work Used
How much of a work you use determines whether that use is fair. For example, small excerpts of the work usually constitute fair use.
On the other hand, larger sections of the work often skew unfairly.
How Said Use Affects the Potential Market or Value of the Work
The last tenet asks if an unlicensed use hurts the creator’s profit by displacing its sales in the market. For the most part, video game streaming usually boosts game sales by providing free publicity.
Plus, some companies, like Nintendo, sometimes get a cut of streaming revenue. Still, if a stream spoils the game’s story for future players too early in its release, that may hurt sales.
As you can see, “fair use” isn’t clear-cut. So if you’re unsure about the game you’re streaming, it’s best to do your research. Watch what reputable streamers are doing, be wary of copyrighted music, and reach out to the game publisher’s PR team for specifics if you are uncertain.
Why Is It Legal To Stream Video Games And Not Movies, Shows, Etc.?
It’s legal to stream video games and not movies, shows, etc., because TV/movie streams are likely to violate “Fair Use” rules. Sharing TV and film on peer-to-peer apps is prohibited because the streamer doesn’t own the rights to the footage and is essentially producing illegal copies.
Copyright law is very intention-specific when it comes to streaming different media. Therefore, you cannot legally stream movies or TV shows like you would video games. So, why is that the case?
There are more conflicts of interest when streaming a movie or TV show than streaming a video game. For example, streaming an unlicensed film on YouTube for ad revenue counts as commercial use.
Furthermore, TV shows and films are creative expressions, making unlicensed use unfair. If you stream the whole show or film, you distribute complete works without the creator’s consent. In turn, viewers who watch for free divert sales from the rights holder.
Unlike streaming video games, which have a transformative purpose and mutually benefits streamers and publishers, streaming film and TV violates every tenet of fair use.
However, while streaming film and TV is illegal, watching an unlicensed stream is not. This legality exists because viewers aren’t making or distributing copies of the unlicensed media. Therefore, you shouldn’t face any disciplinary action by watching an unlicensed live stream of a film or show.
Downloading unlicensed media, on the other hand, is highly illegal. Furthermore, watching a stream through a peer-to-peer network, like BitTorrent Live, is unlawful because participants must upload content in return for viewing content.
Can You Get In Trouble For Illegal Streaming?
You can get in trouble for illegal streaming. For example, VODs violating copyright law will get taken down by Twitch. Violations can result in an account’s permanent suspension. Copyright infringement can also open creators up to civil and, in some cases, criminal legal charges.
Everyone has a different moral compass. To some, illegal streaming may not feel like a wrongful thing to do. Still, streaming copyrighted material without a license or “Fair Use” will result in disciplinary action.
While Twitch doesn’t consider itself a court of law, it does have internal methods of handling copyright disputes. For example, say a copyright holder feels their work is being used unlawfully. In that scenario, they can file a DMCA notification with Twitch.
Then, Twitch will inform the channel creator, who can respond by either taking the copyrighted content down or appealing the copyright strike with a counter-notification.
Twitch also provides services to avoid accidental copyright infringement. For example, the company uses Audible Magic to mute any videos on demand that may contain unlicensed copyrighted material.
Still, it’s solely your responsibility to avoid copyright infringement. And violating Twitch’s DMCA Guidelines can result in media takedowns, suspensions, or even permanent account termination.
However, disciplinary action from Twitch is nothing compared to the legal battles that come from copyright infringement.
Usually, these battles come from civil suits that could cost you a lot of money. However, more broad and severe cases can result in criminal prosecution punishable by up to 5 years in federal prison and a fine of up to $250,000.
Most video game streaming falls under the “Fair Use” rule of copyright law. After all, video game streaming is a transformative use of copyrighted work that creates a mutually beneficial relationship between streamers and publishers.
However, there are always exceptions. If you’re ever unsure, it’s best to research the game in question by reaching out to the publisher’s PR team. Neglecting these details could result in disciplinary blowback.
As always, if you have any questions or just want to hang with me, stop by my Twitch channel here and say what’s up!
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Eric streams 3 days a week on Twitch and uploads weekly to Youtube under the moniker, StreamersPlaybook. He loves gaming, PCs, and anything else related to tech. He’s the founder of the website StreamersPlaybook and loves helping people answer their streaming, gaming, and PC questions.
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