The growth of the esports industry and the use of video game content on streaming and video content websites raises questions in copyright law. Esports is an industry that is growing in popularity and revenue. With an expanding audience and current predictions that the global esports market will exceed $1 billion by 2021, there are a significant number of business opportunities available in the gaming industry. One area driving growth is the use of content creators to promote esports. Most, if not all, esports organizations sponsor popular internet content creators because they attract viewers, with some of the most popular streamers having millions of followers. Content creators in this industry typically broadcast themselves playing games casually or competitively. The visibility of these content creators, in conjunction with their partnership with esports organizations, will typically result in increased opportunities to attract other sponsors and advertisers.
This increased visibility of the video game and esports industries has brought attention to a unique challenge in regards to the copyright and re-production of material on internet websites. YouTube is one of the most popular platforms on which content creators broadcast themselves playing video games, and has undergone significant changes to address the copyright and ownership issues that streaming presents. In February 2019, YouTube updated its copyright strike system, a three-strike system used to penalize alleged copyright infringements, for the first time in a decade, with the intention of bringing clarity and consistency to users. The update revised the three-strike system to specify its increasing penalties ranging from warnings and video removal to account termination, with the goal of making its guidelines uniform and transparent for users. It also included a warning strike, separate from the three-strike system and designed to provide a warning with no penalty except removal of the content at issue with the goal of allowing users to learn more about YouTube’s Community Guidelines.
A YouTube copyright strike, or copy strike, occurs when a video has been removed after a copyright owner submits a valid legal request claiming that the content uploader did not have their permission to post the copyrighted content on the site. However, many questions remain unresolved, such as what constitutes “strikable” content under this copyright regime? Generally, copyright law is designed to protect original works of authorship fixed in any tangible medium of expression, including online creations. Under the Constitution, the goal of copyright law is to “promote the Progress of Science and useful Arts”. Yet, what it means to be an original work in light of the goals of copyright law, can be difficult to determine, especially with fair use arguments and the expansion of content on the internet.
Many individuals argue that their use of copyrighted content is not “strikable” because it counts as fair use. Fair use is an affirmative defense to infringement claims whereby users may “reuse copyright-protected material under certain circumstances without receiving permission from the copyright owner.” In the United States, works of commentary, criticism, research, teaching, news reports, and certain other materials can be considered fair use. Courts will typically consider the purpose of the use, the nature of the copyrighted work, the amount and substantiality of the portion of the work used, and the potential market effect of the use when determining whether content falls within the fair use defense. Content creators who stream video game content online may argue that they are using an unsubstantial portion of the content, and creating their own work from it based on their commentary. Yet, what constitutes fair use is not always easy to determine. Thus, copyright enforcement policies raise concerns for esports and the gaming industry. These policies can generate problems that are hard to enforce and make user-generated content creation such as YouTube broadcasts—the driving force of esports—difficult and unappealing.
In addition to the difficulty of determining when the fair use defense applies, the sheer volume of content on the internet makes copyright protection incredibly difficult to enforce manually, necessitating the use of automated systems. YouTube uses a system known as “Content ID,” which scans the videos that are uploaded onto the site against its database. Once uploaded videos are scanned by Content ID, copyright owners have the ability to decide what happens to the content in a video that matches their own work, allowing them to submit a claim. The application of automated copyright violation detection can rapidly demonetize channels, and the penalties of enforcement can have serious ramifications for those affected. Some content creators’ entire livelihood depends on creating videos. If they lose ad revenue because of a copyright detection algorithm, they might not be able to continue promoting esports through their content. Considering the public profile of many of these creators, both the sponsorship organization and the individual can face repercussions due to content restrictions, such as a loss of popularity.
Beyond the difficulties with the use of automated copyright violation detection, YouTube’s copyright enforcement mechanism and policy presents other issues. For one, many content creators watch other YouTube videos when they are broadcasting live. While content creators can issue complaints about the use of their content, other creators may claim that they are creating new and transformative content by commenting and adding to the video, which may fall under the fair use defense. Another issue pertains to scammers who abuse YouTube’s policies and take advantage of its enforcement difficulties by blackmailing or extorting channels without a legitimate claim. For many content creators, YouTube’s use of automated detection also appears arbitrary and open to mistakes, which can negatively impact viewership and channel popularity.
Overall, questions arise as to whether the three-strike policy is fair to content creators. Members who, for some reason, have received two copyright strikes are vulnerable when threatened with a third copyright strike and possible termination of their channels. A copy strike expires after 90 days if the user completes YouTube’s Copyright School. However, if the individual receives a second strike before the first strike expires, then that individual will have to wait for the second strike to expire before being restored to a good account standing. There are also possibilities to dispute a Content ID claim before having to go through the process of attending the Copyright School, but when some individuals are completely dependent upon their YouTube earnings, it becomes difficult for them to maintain their business while dealing with scammers who will file copy strikes until payment is received.
In light of the popularity of esports and the significance of user-generated content in driving the growth of a game, copyright strikes and the use of YouTube as a media platform are an industry concern, especially regarding the promotion of content related to competitive gaming. Copyright regulations and the livelihood of those in the gaming industry are inextricably intertwined. When members of the gaming community lose trust in YouTube and similar media platforms due to poor copyright policies, esports and gaming can become less popular overall. Hopefully, companies recognize the concerns of their content creators and users and will begin to work towards responding to these needs.
 Annie Pei, Here’s Why Esports can Become a Billion-Dollar Industry in 2019, CNBC (Jan. 21, 2019, 10:00 AM), https://www.cnbc.com/2019/01/20/heres-why-esports-can-become-a-billion-dollar-industry-in-2019.html
 Andy Williams, Top 10 Biggest Twitch Streamers After Shroud Joins Mixer, Dexerto (Oct. 27, 2019), https://www.dexerto.com/entertainment/biggest-twitch-streamers-top-10-1187205.
 Mitch Reames, Puma Joins Nike and Adidas in the Esports Apparel Sponsorship Chase, Adweek (Oct. 15, 2019), https://www.adweek.com/brand-marketing/puma-joins-nike-and-adidas-in-the-esports-apparel-sponsorship-chase/.
 Making Our Strikes System Clear and Consistent, YouTube Creator Blog (Feb. 19, 2019), https://youtube-creators.googleblog.com/2019/02/making-our-strikes-system-clear-and.html.
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 Copyright in General, U.S. Copyright Off., https://www.copyright.gov/help/faq/faq-general.html (last visited Oct. 28, 2019).
 U.S. Const. art. 1, § 8, cl. 8.
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 Shoshana Wodinsky, YouTube’s Copyright Strikes Have Become a Tool for Extortion, Verge (Feb. 11, 2019, 8:20 AM), https://www.theverge.com/2019/2/11/18220032/youtube-copystrike-blackmail-three-strikes-copyright-violation.
 Richard Priday, YouTube’s Algorithm is Causing Havoc for Gaming Livestreamers, Wired (May 16, 2018), https://www.wired.co.uk/article/youtube-streaming-content-id-ban-algorithm.
 Wodinsky, supra note 14.
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