The Memory Remains
By: Dan Brioli
Tags: Gaming, Streaming, Music, Twitch, Features

IRONY MAIDEN

The Memory Remains

Why Metallica was interrupted live at BlizzCon by copyright-free music — and how they laid the groundwork for this to happen 20 years ago Dan Brioli Follow Feb 27 · 8 min read

There are a number of ironic song titles that Metallica has produced over the years that could fit an article title about this topic, depending on your perspective. “For Whom The Bell Tolls,” “Sad But True,” “Seek & Destroy,” “Am I Evil,” “Harvester of Sorrow,” and “Damage, Inc.” all seem to be applicable in some way, depending on how you approach recent events at BlizzCon as streamed on Twitch.

But I went with “The Memory Remains.” Why? Because, for many of us, the memory still does remain. We remember Metallica’s lawsuit against Napster in 2000, and we get to look back on it all and consider where big business’ push towards full DMCA control of all media has taken us.

BlizzConline, live music, and Twitch

And just where is that, exactly? Where has the DMCA taken us recently? Well, in the shortest and most bare-bones explanation possible:

Blizzard starts streaming BlizzCon (known as BlizzConline this year) on their YouTube channel, their official BlizzCon site, and their official Twitch channel. The Twitch Gaming channel then begins streaming BlizzCon as well since it is Twitch’s channel built for just these types of events. Twitch freaks out upon hearing Metallica play during the opening ceremony — whether via an overzealous algorithm or a terrified intern — and then dubs over Metallica’s live performance with some generic streamer background beat that they know won’t generate a copyright takedown claim.

(Unfortunately, I couldn’t secure the original stream in time from Twitch Gaming’s channel for the full effect of watching chat collectively lose its mind — Twitch Gaming cut that video from their channel, it seems. That said, feel free to check out Twitter gaming threads from around that time for bits and pieces of peoples’ opinion on it, as well as watching the hilarious chat responses.)

So, in a nutshell: Metallica plays their music during the BlizzCon introductory ceremony, and Twitch (who streams BlizzCon anyway) has to cover it up during their own broadcast of the event with generic, non-copyright-infringing streaming chillhop.

It didn’t have to be this way. DMCA and copyright could be handled in a much fairer way, or more efficiently at the very least. But we don’t have that system, in large part due to the complaints of big-brand musical groups with armies of music-industry lawyers — groups just like Metallica.

DMCA and abuse

I understand the need for copyright law in a market-based economy with protections for intellectual property. However, I also see the hilarious bureaucratic and administrative mechanisms that then grow up around this need, like the vines you see of some weeds that grow among larger, more stable plants. They are middleman weeds, though, simply trying to take light and water from anything around that will support them.

DMCA has a long history by now, being old enough to vote, smoke cigarettes, drink (well, soon enough, anyway,) and die for its country if it wants to. A history filled with both powerful proponents and numerous opponents. A history of both good protections for creators and bad pitfalls for performers or re-platformers of content.

There has been a growing trend of scam-based takedown claims that plenty of people have been raising alarms about, only to be (generally) met with silence by various platforms that enable the takedown claims. There is likewise a growing trend of increasingly bizarre takedowns that either appear to be automated or made by companies or third parties in bad faith. An awkward and still-unfolding drama is this thread which was literally started during the editing process of this article, where Activision appears to be using DMCA to preferentially have a negative effect on accounts it considers “info leakers” while leaving others alone. This is a terrible side effect of our legal and entertainment industry structure as it stands today.

Every year or two, people think the problem is solved, only for a new issue to pop up. A new scam to be invented. A new service to be adopted to clear up confusion and to interpret quietly ignored and misunderstood case law. A new algorithm that will supposedly detect DMCA violations but ends up going haywire and collectively raising the blood pressure of everyone on a platform for a month. These are all yet more weeds growing up around DMCA — no matter how many times you pull them out by what you think are their roots, they pop back up due to being given a perfect environment to grow in.

And Metallica was instrumental in forming our current system of copyright takedowns. Twitter users were quick to jump on the irony of the situation. Here’s a well-linked article from ultimateclassicrock.com as well as a great one from KERRANG! that should both give a bit of context to Metallica’s involvement in the lawsuits surrounding streaming music in the early 2000s.

Metallica v. Napster

Metallica’s history in influencing the DMCA is rooted in the fact that they were possibly the highest-profile group that could have taken meaningful action against Napster, the file-sharing behemoth of the time.

In a time of CDs, to be able to simply send other people files with a simple interface was revolutionary. Up until the Napster service was created, file sharing was generally a more technical affair, requiring FTP server setups and having at least some level of inherent friction to massive and widespread sharing of files. But Napster? Anyone could just install the software, and be sending and receiving files anonymously from anyone else — immediately and effortlessly. This was file sharing, but distributed, and on a massive scale.

The RIAA had filed the initial suit against Napster, but this was all out of the public’s eye at the start. It’s pretty hard to get the general population interested in the machinations of the legal world and public policy, with dry, dense language and constant references to prior case law.

That all changed when Metallica learned of a single they had written for Mission: Impossible 2. Thanks to Napster, the single was being listened to on radio stations, which is what really chaffed their leather chaps. Shortly afterward on April 13th, 2000, Metallica v. Napster was filed. This was the vanguard to a host of legal troubles for Napster, ultimately ending in their bankruptcy.

The name-brand recognition of a band like Metallica during that time can’t be overstated. Here is some cryptic Silicon Valley tech service, stealing from one of the most famous bands in American rock and metal history. Metallica alone shaped the public’s perception of the lawsuit, for both good and bad. Televised news channels couldn’t get enough of the courtroom drama.

Many of the general public — particularly the computer-savvy among them — loved both Metallica and Napster. (I was one of those.) To us, Metallica was once the anti-establishment crowd, and they were now traitors striking out at their fans who were just trying to share the music they loved. To others, Metallica was now a corporate pop-rock band, finally taking care of business interests, a real band that the suits could appreciate.

Various high-profile musicians and artists came out for the lawsuit, or against it. Dr. Dre joined Metallica in the suit. The Dave Matthews Band released exclusive music on Napster in support of the service. Mötley Crüe made both comments and animated videos against Metallica’s lawsuit. The Offspring took Napster’s side. (We don’t talk about Limp Bizkit though. They never existed.)

In the end, Metallica claimed it was never about the money, despite former fans and current enemies claiming it was merely greed that drove their actions against the short-lived streaming service.

“I was stunned that people thought it was about money. People used the word ​‘greed’ all the time, which was so bizarre. The whole thing was about one thing and one thing only — control. Not about the internet, not about money, not about file sharing, not about giving shit away for free or not, but about whose choice it was. If I wanna give my shit away for free, I’ll give it away for free. That choice was taken away from me.” — Kirk Hammett

Was it about the money? Probably not, at least not to Metallica, who by the late ‘90s had more money than God. It certainly was about the money for RIAA executives, of course. Unfortunately, the laws haven’t been revisited and given clarification much if at all since their inception, and they still remain a relic of how the internet was viewed in the late ‘90s. Our copyright laws allow for a lot of abuse in many different areas and in many different ways, and a lot of services, companies, and individual streamers go out of their way to avoid any trouble whatsoever because the laws are just that difficult to parse and apply to the reality of streaming on the internet in 2021.

Great critiques of our copyright laws are out there

This, of course, is just a short Medium article pointing out the humor of Metallica, Twitch, and Blizzard all becoming embroiled in a device of their own making with the help of our byzantine copyright laws. I can’t hope to go over it all here — you’d be bored and zoned out and clicking on literally any other link to get away from it. But if you’d like some deeper critical and legal dives into DMCA which may or may not still be entertaining, check out any of Legal Eagle’s videos related to copyright, or Tom Scott’s critique of the world’s various copyright laws and agreements, copyright.gov’s introductory text to the bill, or the text of the actual bill itself.

And for a bit more proof that plenty of services will rise up among the rest like those middleman weeds mentioned above, taking advantage of the vagueness and uncertainty surrounding copyright law, there are plenty of people out there willing to hock solutions at you for a monthly fee. They’re all a waste of money that you shouldn’t support by buying into their (completely legal, in this case) scams.

But that doesn’t matter — DMCA will continue to foster these types of systems blossoming around it until we address the flaws we currently allow to exist in our legal system. Plenty of creators will purchase their services, not knowing that they’re just middlemen taking a cut of the action while providing no useful service, enough to keep the light and water flowing and their roots alive. It’s how weeds make their money.

Get informed with the EFF

If you are a creator concerned about DMCA takedowns and copyright violation claims, feel free to check out the EFF, which has great documents designed just for you and your platform of choice, or at least related to your platform. They’re a foundation dedicated to digital rights, and they won’t charge you for this assistance.