xQc was briefly banned from Twitch last week after he streamed several Olympic highlight videos with his own commentary on his channel. While he has since been unbanned, the situation is not over, as xQc is countering the copyright claim and standing his ground for fair use in the process. Next, the International Olympic Committee will either sue xQc or let the matter die.
"I was doing the Olympics, and I was doing some react content, and then I got striked," the streamed said on stream Sunday. "Normally strikes don't get you banned, but because its a live strike they ban you so there is no further damage, or whatever. . . normally its 24 hours, but for some reason this time for me it was a two-day ban. . . Then I looked at it, and I talked to my team and asked "can you do anything about this, two days seems like a crazy amount of time for this."
He went on to explain, "we issued a counter-claim, which is pretty ballsy. . . this is transformative content, this is fair use and this is not what you guys claim it is. So we counter-claimed it, which removes the strike, but we are fighting back. If this escalates, it will get crazy."
He continued, "my lawyer said . . . it could cost millions."
Fair use is an American legal doctrine that states people are able to use unlicensed copyrighted works for non-commercial and commercial purposes under some narrowly defined circumstances. Fair use is commonly used as a defense for online content creators who comment, critique, parody, or otherwise transform an original work in their content without paying the original creator to use their work.
According to the US Copyright Office, fair use is judged upon four factors:
- The purpose and character of the use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken
- the effect of the use upon the potential market
Based on the comments made by xQc, his position is that his reaction to the Olympics constitutes commentary and is thereby transformative. A number of well-known YouTubers, including H3 Productions and Jim Sterling, have successfully litigated their own copyright lawsuits using similar defenses in the past. Of course, every case has a unique set of facts and circumstances.
Ryan Morrison, AKA the Video Game Attorney, took to Twitter on Sunday to offer some clarification about xQc's legal situation and to warn others not to automatically counter DMCAs without speaking with an attorney first.
"We see countless DMCAs come in for our clients, and we normally advise not to counter due to the extreme risks," Morrison explained on Twitter. "We discussed all options with Felix and he is confident, as are we, that the content in question was fair use. As such, he made the call to take a stand. When you counter a DMCA, the rights holder's only option is to sue you. As such, Felix is taking on an incredible risk to stand up for what is right here. That said, DO NOT COUNTER your own DMCAs without speaking to an attorney. Even if you are right, it can be VERY costly to win."
He concluded, "We are not suing anyone here, and we expect the IOC to make the right decision and let this die. If that is the case, this is a done deal and nothing more to the story. However, we are ready to defend Felix no matter how they choose to proceed."
By inviting a lawsuit from the IOC, xQc is taking a stand for fair use and drawing a line in the sand for the Twitch react meta. We will have to wait and see if the IOC backs off their claim as Morrison has suggested they should, or if we have a court battle on our hands. If a lawsuit were to materialize, it could have major implications for the precedent surrounding live streamers' right to watch and react to other people's content.
Aaron is an esports reporter with a background in media, technology, and communication education.