Many people love watching other people play games. Sometimes, it’s even more fun to watch a high-level player give their input on an upcoming major release or provide strategies and tips for difficult challenges in current releases. With the ability to stream live gameplay via twitch.tv, let’s discuss if you can stream emulators with any type of copyrighted ROMs, homebrew, or indie games as well as whether you should stream those types of games.
In my research, I have come across several articles that claim that streaming emulators are not a breach of copyright law due to the legality of owning a personal emulator and being able to play your ROMS. However, with Nintendo recently shutting down nearly 200 with DMCA notices – citing that they were streaming copyrighted games – it is important to understand what the law states and your rights as a streamer.
A common term in copyright law is “fair use.” According to Title 17, Chapter 1, Section 107 of U.S. Copyright Law:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include (1) the purpose and character of the use, including whether such use is commercial or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used with the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
The law states that it is legal to stream emulation with personal, original ROMs – which includes homebrew games – if it’s non-profit, educational, won’t affect future game sales after release, only uses an “amount and substantiality” of the game relative to its full-length title, doesn’t grant new viewers access to the full game, and doesn’t otherwise negatively affect sales of the original property.
With these factors in mind, we will explore several different types of games and how they may or may not be streamed on twitch.tv. For purposes of this article, I’m going to provide two separate scenarios: live-streaming over twitch.tv without commentary (known as “Let’s Play”), and live streaming with commentary (known as “Quick Looks” or simply “Facecam”).
Copyrighted Retail Games [offline play]: A streamer who owns a retail copy of a copyrighted game can stream through Twitch provided that it is non-profit, educational, won’t affect future game sales after release, only uses an amount of the game relative to its full-length title, doesn’t grant new viewers access to the full game, and doesn’t otherwise negatively affect sales of the original property. In addition, they must create their content rather than use content created by others (game-play capture with commentary is considered “creating your own content”).
Copyrighted Indie Titles: This is an emulated copy of an indie game that has already been released falls into a legal grey area. Some say that it’s fine as long as you don’t stream large portions of the game at once (slowing down gameplay or rewinding plays no part in this determination). Others claim that any streaming of the game grants public access to the full product and is illegal. It’s important to note that the ESRB and many indie games require creators of content based on their properties (such as Minecraft) to obtain a licensing agreement with the original developer before releasing any streaming, video reviews, or other monetized content related to it.