Tuesday, June 23, 2015

Twitch Has Rules Too

I know a fair bit about real money trading and the EVE Online EULA, but trying to figure out the ins and outs of Twitch is a new experience. I won't try to dissect the entire Twitch Terms of Service today. Instead, I will stick with the subject of giveaways involving real world currency.

From what I read while researching this post, I believe the advice that CCP's Lead GM Lelouch gave to Twitch streamers in order to comply with the EVE Online EULA also applies for those wishing to comply with Twitch's ToS:
"My advice to Twitch/Youtube users would be to stick to advertisement monetization instead of tying giveaways into donations. Those that want to do giveaways are welcome to do so as long as any viewer is eligible and no payment in real life currency is asked for."
In trying to get reactions to GM Lelouch's response to Wiggles' petition, I contacted Chance Ravinne for comment. Not only is Chance a member of EVE Online's Council of Stellar Management, but he also runs the Wingspantt YouTube channel with over 25,000 subscribers. I asked him for his position on giveaways done by content creators on YouTube and Twitter in general and he provided the following answer:
"In the broadest sense, I don't take any issue with content creators giving out any item, real or virtual, as an incentive to draw audiences or as a reward to those who have been part of the audience in the past. This is something that is an basic part of business promotion, down to the level of giving out free mints to shop patrons or a chance to win a free lunch to people who drop business cards into a fishbowl.

"I myself have, in the past, used giveaways to promote my videos, blogs, and other endeavors -- sometimes ineffectively, and other times to great effect. Sometimes a giveaway is simply a convenient means of disposing of extra gaming-related swag you have accumulated via trade shows or product reviews, or bad Christmas presents.

"However, there is a very distinct line that is being crossed recently on Twitch, the line of 'subscribers/donors only' raffles or giveaways. Anyone who has worked in marketing, or anyone who listens to enough commercials, knows that in almost all US states (and surely in many other countries) there is a clause associated with all sweepstakes: 'No purchase necessary.'

"This clause exists to prevent all manner of illegal or otherwise shady activities: bypassing laws on lotteries and gambling, prevention of the laundering of money, consumer rights advocacy, transparency of contests and raffles, prevention of giveaways as direct fundrasing activities, and many other misdeeds.

"So, regardless of implications of potential RMT, I believe the actual line that is being crossed here is one of ethical marketing and, potentially, contest legality. Call me a skeptic, but I highly doubt the content creators engaging in these types of giveaways have all taken precautions to comply with their own sweepstakes laws, nor have they screened participants to ensure contest participation in the winners' jurisdictions is in the letter or spirit of local law.

"Any manner of giveaways that fails to comply with 'no purchase necessary' clauses opens everyone involved up to scrutiny for all of the potential abuses I've named, and many others. This includes RMT which, while not illegal, is certainly not acceptable within the confines of EVE Online player behavior."
I am not an expert on internet gambling laws, but I imagine that giveaways of in-game objects that involve no money at all are safe to conduct. But what about random giveaways in which participants receive a weighted chance to win based on real life cash? Or if some of the prizes are awarded to everyone but some others are subscriber-only?

From a purely philosophical standpoint, I don't care about the gambling aspects of the issue. However, governments around the world tend to disagree. The Twitch ToS does contain a section on promotions, Section 11F, that states that Twitch streamers:
"...may carry out Promotions to the extent permitted by applicable local law and you are solely responsible for ensuring that you and any Promotions comply with any and all applicable local law obligations and restrictions."
I believe that Section 11F is just standard boiler-plate legal language designed to protect Twitch from the legal consequences of a Twitch streamer doing something so outrageous that the local authorities become involved. With the number of active Twitch streamers, I seriously doubt Twitch possesses the manpower to enforce that section of its Terms of Service.

Two sections of the Twitch ToS that could come into play are sections 7 and 8. Section 7 concerns violations of the Digital Millennium Copyright Act and Section 8 refers to violations of non-U.S. laws like the E-Commerce Directive of the European Union. Also, in Section 9, the terms of service states:
"Twitch may also at our sole discretion limit access to the Twitch Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement."
The Twitch ToS states in Section 9 that:
"Twitch may also at our sole discretion limit access to the Twitch Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement."
Further, in Section 11C, the ToS states:
"(2) your Broadcaster Content does not and will not (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right..." (emphasis mine)
Why bring up these sections of the Twitch ToS? Because the wording fits so well with Section 6B of the EVE Online EULA:
"You may not transfer, sell or auction, or buy or accept any offer to transfer, sell or auction (or offer to do any of the foregoing), any content appearing within the Game environment, including without limitation characters, character attributes, items, currency, and objects, other than via a permitted Character Transfer as described in section 3 above. You may not encourage or induce any other person to participate in such a prohibited transaction. The buying, selling or auctioning (or any attempt at doing so) of characters, character attributes, items, currency, or objects, whether through online auctions, newsgroups, postings on message boards or any other means is prohibited by the EULA and a violation of CCP's proprietary rights in the Game." (emphasis mine)
CCP considers illicit RMT or any other non-approved way of monetizing the EVE Online IP a violation of its proprietary rights. So if a Twitch streamer chooses to violate the prohibitions in the EULA against illicit real money trading, CCP could file a complaint with Twitch and get the streamer banned.

As I stated at the top of this post, I am not an expert on the Twitch Terms of Service. Perhaps my analysis is wrong. But the thought of someone conducting illicit RMT losing the ability to not only log into EVE but losing the ability to stream on Twitch at all brings a smile to my face. And if I were a Twitch streamer, I would take great care not to upset CCP by conducting any shady dealings.

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