By: Talya Torres
YouTube, founded in 2005, receives over 2 billion monthly viewers. Twitch, founded in 2011, receives over 140 million monthly viewers. If you are wondering the difference between the two sites, besides the 6-year difference in founding and millions of viewers, you might not be shocked to find that YouTube is mainly known for edited video content, where Twitch solely produces livestreams. The other difference— there has historically been much more discourse over fair use on YouTube than on Twitch with articles going all the way back to the year Twitch was founded.
The language of fair use can be found in Title 17 Copyright Law of the United States. Section 107 of Title 17 states that fair use of copyrighted work used for the purpose of “criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.” In determining if the use made of work is a fair use, four factors are considered:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Ethan Klein of H3 Podcast is known for championing his opinions on fair use, especially after he himself was sued in 2017 for a commentary video he made, resulting in the YouTube commentary fair use case Hosseinzadeh v. Klein. The suit against Klein was dismissed for a number of reasons. First, the court notes that the Klein video “Opens with commentary and discussion between Ethan and Hila Klein, followed by segments of the Hoss video which they play, stop, and continue to comment on and criticize.” The court also notes the length of the Klein video being 14 minutes in comparison with the short clips of the video they are commenting on that are interspersed throughout that run time, using 3 minutes of the 5-minute run time. The court cites to another case in saying that determining fair use cannot be simplified to the four factors, and instead should be examined on a case-by-case analysis.
The conversation surrounding fair use and commentary in livestreams grew in January of 2022, when two of the top live streamers at the time on Twitch, Pokimane and Disguised Toast received 48 hour bans for watching full episodes of shows like Avatar: The Last Airbender and Master Chef live for their upwards of 20,000 viewers to see. But beyond content made for television and film, people create content every day on platforms like YouTube, Instagram, and TikTok. Content that streamers watch to fill up stream time.
Towards the end of the summer of 2023, 27 year old Félix Lengyel, known as “xQc” on Twitch and a new streaming site called Kick, received criticism for his reactions (or lack thereof) to online content. Specifically, the issue started when he reacted to a YouTube video titled “The Kennedy Assassination” by a creator names LEMMiNO. xQc, who gets 45,000 viewers on average, streams about 9 hours a day, is active 6 out of 7 days a week, and is estimated to make anywhere from $226,434 to $303,113 a month.
While streamers and YouTubers have various opinions on the situation, Klein invited xQc onto his podcast and had a two hour debate about his content and fair use. While the debate was not entirely productive, as xQc did the worm on the floor after shouting that his viewers would rather see him do that than debate, Klein brought up a number of issues he had with xQc’s content. One of those issues was the fact that he watched the hour long LEMMiNO video with only seconds of commentary, even leaving the room at one point with the video playing while he used the restroom. The biggest issue Klein had with xQc was that he re-uploaded the stream in its entirety to YouTube instead of only viewing it on Twitch during his live stream. Klein stated “I want to focus on the YouTube uploads, because the Twitch streaming itself, I feel like is too much of a grey zone, and there’s industry standard. I would be less… I would be more hesitant to call what happens on Twitch a violation of any kind.”
When a streamer is silently watching content with no substantive commentary, how is that different from reposting the original video? When it comes to fair use, should the differences matter? Is there really a substantive difference between live streaming the entirety of a copyrighted video and republishing that same stream?
The landscape on YouTube compared to Twitch, is fundamentally different. Streamers normally are live and unedited for hours on end, some streamers even hosting events like a sub-a-thon where they stream for days at a time. It is a lot easier to transform content and edit out dead air when the content is filmed and prepared ahead of time, and more difficult when you are in your 8th hour of stream trying to think of things to say.
The issue that Klein brought up is when creators upload their streams in entirety without editing to YouTube as a “Video on Demand” or “VOD”. The discourse surrounding this issue mainly concerns the third and fourth factors of fair use which considers the “amount and substantiality” of the copyrighted work used compared to the original work and the effect of the use of the original work on the potential market of the copyrighted work. Boiled down, the factors combined amount to if the content is transformative enough to act as a different work.
Looking specifically at xQc’s VOD upload of his stream to YouTube of him watching the LEMMiNO video, it is clear that he uploaded the entirety of the 1 hour, 38-minute video, with minutes of “commentary” added to a total run time of 1 hour 53 minutes. The commentary that xQc makes is minimal; he makes a number of brief comments over the video like “okay” and “he’s bald” but he does not pause the video until he eventually pauses for roughly two minutes to use the restroom, and get food.
While going through the factors of fair use in comparison to this specific video, it is important to recognize that as this analysis is on a case-by-case basis, it can shift depending on the judge or jury looking at the facts. That being said, it is hard to believe that a court would see the entirety of the video re-uploaded with only minutes of commentary and consider that to transform the original video enough to make it fair use. The court in Hosseinzadeh specifically mentioned that Klein paused throughout the video for long periods of time to comment on it, only 3 of his 14-minute video was the original video, and that he opened with commentary to set up the video.
While each issue should be examined on a case-by-case analysis, it is quite clear that some of the commentary on Twitch, especially those uploaded unedited to YouTube, would not likely hold up to the standards of fair use.
As video commentary and livestreaming continue to grow and change, thoughts on fair use will likely shift as well. In reality, sometimes the legal implications of a person’s actions do not matter to them if they are not sued for it like Klein was. Klein, acknowledging that fair use is decided “on a case-by-case basis by a judge or jury” asks xQc, “Do you care at all about like IP or Copyright? Or, like, the fact that it’s illegal… or that it might be illegal? Does that matter to you?” xQc responded by saying, “Uh, no. Well- it flat out doesn’t… I actually believe that usually the people who enforce it are the people who have a problem with it. Right? A problem with the nature of the content itself.”
Student Bio: Talya Torres is a second-year law student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law and is a member of the Executive Board of the Child and Family Law Association (CAFLA). Talya received a Bachelor of Arts in Journalism from the University of Massachusetts, Amherst.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
