Former RIAA Executive Attacks Fair Use

Correction: As some of you have noticed, we made a silly mistake in this post. Neil Turkewitz is not with the MPAA, but rather a former RIAA executive who is now with the International Center for Law & Economics, a think tank that reliably advocates for the MPAA & RIAA's positions.

This week has been dubbed fair use week by a whole bunch of organizations (mostly universities and libraries) as a chance to celebrate the usefulness and wonder that is fair use in protecting free speech, enabling creativity and inspiring innovation. As we've said many times in the past, fair use is an incredibly important concept -- if often misunderstood -- so it's good to see these organizations working together to better educate the public on why fair use is so key.

However, not everyone is so enthralled with fair use. The MPAA and RIAA are apparently so frightened by fair use that they, and some of its friends, have been posting weirdly uninformed screeds against fair use over the past few days. Some are more silly than others (such as one that tries to claim that the MPAA has never been against fair use, ignoring that the MPAA's long-time boss Jack Valenti once declared -- totally incorrectly -- that fair use wasn't in the law), but let's focus on the one that comes straight from a former RIAA top exec.

Neil Turkewitz, formerly of the RIAA and now the International Center for Law & Economics Senior Policy Counsel, has published a piece at Medium (a site that relies heavily on fair use to protect it from being sued into oblivion) pretending to honor fair use while actually criticizing it.

In honor of Fair Use Week, let’s begin by unmasking the false premise underlying much of the celebration of fair use — that is, that the basic objective of the copyright system is to achieve a balance between the “public interest” on the one hand, and the interest of private copyright owners on the other. In this formulation, the “public” interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option.

Well, here's something where we actually sort of agree -- though for different reasons. I actually disagree with many fair use supporters in arguing that it's about "balance." I've been saying for a decade now that balance is clearly the wrong standard and it unfortunately presupposes that there are two parties in conflict here. That's not true. I still believe, strongly, that a more optimal copyright policy maximizes benefits for creators and the public (though it may squeeze out some gatekeepers...). The idea that there's some tug of war between two sides has poisoned the copyright debate, unfortunately.

But... that's not what the Turkewitz is really arguing here. The end of that paragraph is telling. Those who support fair use aren't just talking about "the ability to get copyrighted materials as cheaply as possible." They're talking about basic concepts such as freedom of expression and access to knowledge and information. That's different than just getting stuff cheaply. We're talking about education and learning and expression -- and rely on fair use not to infringe on someone's copyright (remember: fair use isn't infringement), but to be able to better express ourselves and to better educate.

But Turkewitz is building up a head of steam with this pretty massive strawman he's building, and nothing's going to slow him down:

Groups like EFF, Public Knowledge and re:Create employ emotive rhetoric in an attempt to demonize copyright, and to suggest that “copyright” protection is somehow a “special interest.” They say that they care about “creativity,” and that fair use is critical to the interests of society. Copyright owners agree, but unlike most declared champions of fair use, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process.

What the hell does "preserving the creative process" even mean? Remember, first of all, that despite all the massive amounts of copyright infringement going on these days (which the legacy entertainment industry constantly reminds us about), we're actually seeing more music, more movies, more video, more books, more written works than ever before in human history. If it's truly the "creative process" that Turkewitz is worried about, well, then there's nothing to worry about. We're witnessing a golden age of content creation, much of it relying on fair use, despite the decades of "sky is falling" rhetoric from Turkewitz and his friends about