Just last week, Amazon owned preeminent streaming platform, Twitch, launched a beta program for providing a subscription-only streaming service. Through the program, content creators can provide a stream that is only accessible to viewers who have a paid subscription to the content creator’s channel.
While it may be admirable that Twitch is attempting to create new revenue streams for content creators who can have a hard time generating revenue from their streams, this new program likely runs afoul of the terms of service of many major publishers.
Neither you nor the operator of any website where your Production(s) may be viewed can force a viewer to pay a “fee” to be able to view your Production(s).
We permit individual players to solicit personal donations or offer subscription-based content while live-streaming games, so long as non-subscribers can still watch the games concurrently.
[Videos] must have no commercial (i.e., monetary) objective. As an exception to this, fans are permitted to monetize web videos (such as YouTube) with advertisements, so long as those videos otherwise meet the requirements of this Policy.
Use of our content in videos must be non-commercial. By that we mean you can’t charge users to view or access your videos. You also can’t sell or license your videos to others for a payment of any kind.
Each of these policies seems to restrict the pay-for-subscription streaming model being pushed by Twitch’s new beta program. Some of these Terms of Service do have additional caveats, but none of them specifically address whether a subscription-based model offered by Twitch would be covered by them. For instance, Steam’s Terms of Service notes that, “You are free to monetize your videos via the YouTube partner program and similar programs on other video sharing sites,” but it is unclear whether Steam would view Twitch’s subscription model as something similar to YouTube’s partner program.
One thing to consider as a content creator is that the punishment for violations of these Terms of Service are likely to be only enforced against the content creator using Twitch’s subscriber view only model. Content creators could face restrictions placed on their game accounts, or have their account banned altogether for using the service. A risky proposition for most content creators.
However, banning an account is not the only action a publisher could take. A published could take a content creator to court for copyright infringement and breach of their Terms of Service. While unlikely, it is no longer unheard of. For instance, Epic recently sued two gamers for copyright infringement for modifying Fortnite code. This may be the extreme case, but it would technically be in the publisher’s right to bring content creators to court for making unauthorized derivative works of their copyrighted materials.
Given the size and clout that a platform like Twitch has, it is likely that the publishers will be quickly issuing insight on how Twitch’s subscription model fits into their Terms of Service. Particularly since it is well known that having a large Twitch audience increases game sales.
Until then, it may be advisable for content creators to know the terms of service for the games they intend to stream under the subscription model, and take caution or avoid utilizing the subscription service until such time as the publisher of that game gives guidance on the acceptability of the model with their own Terms of Service.