Will Twitch Users Face Prison Time for ‘Felony Streaming’?

Photo Credit: Caspar Camille Rubin

Yesterday, it came to light that Congress had slipped a felony streaming law into the 5,539-page-long COVID-19 relief and government-spending bill. Now, some are asking whether Twitch users will face prison time if they violate the regulation.

The felony streaming portion of the decidedly lengthy bill begins on page 2,539 and proposes to add to chapter 113 of the U.S. Code’s title 18 a section entitled “§2319C. Illicit digital transmission services.” We’ve taken an in-depth look at the approximately four-page-long law, which details, among other things, possible fines and up to 10-year prison sentences for repeat offenders. (Lawmakers also included the CASE Act in the stimulus bill.)

Even ahead of the felony streaming law’s appearance in the $2.3 trillion spending package ($1.4 trillion to fund the government through September’s end as well as almost $900 billion worth of aid), there was speculation that Twitch users could face prison time for featuring even small pieces of protected works in their streams.

Senator Thom Tillis – who proposed the felony streaming law and held a hearing on DMCA reform – pushed back against the criticism, specifying that the legislation is “narrowly tailored” and would allow the Department of Justice “to prosecute commercial criminal organizations, not individual streamers.”

Based upon the measure’s text, it appears that streaming platforms and their owners, as opposed to individual users on services such as Twitch and YouTube, would be subject to punishment under the felony streaming law.

Specifically, the proposal says that it is “unlawful” for a “person to willfully, and for purposes of commercial advantage or private financial gain, offer or provide to the public a digital transmission service” that violates the law. Moreover, a service would violate the law if it is “primarily designed or provided for” publicly performing works without the permission of the rightsholder(s).

Plus, digital transmission services that “have no commercially significant purpose” aside from infringing upon protected works, and services that are “intentionally marketed” to promote their function in hosting protected content, would break the law. Accordingly, it seems as though the felony streaming measure, if signed, would largely target services themselves.

Pivoting from its longstanding practice of forwarding DMCA takedown notices to users whose streams contain music, Twitch in September launched a pre-cleared catalog for creators, “Soundtrack by Twitch.” Unlike Facebook Gaming, the Amazon-owned streaming platform didn’t ink licensing deals with the Big Three labels or Merlin, however, and has also instituted a “no recorded music” policy.