Former RIAA Executive Attacks Fair Use
from the i-beg-to-differ dept
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 how strong fair use and new internet innovations will somehow make all the content creators disappear.
Hasn't happened. Maybe it's time for the legacy entertainment industry to try something new, rather than just constantly rebooting or creating sequels to its own failed attack strategy?
We recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. But standing on the shoulders of giants doesn’t require misappropriation, and anyone who tells you differently is selling something. Unfortunately, for Fairuseweek.org, and its allies, fair use tends to be little more than a useful slogan that has little to do with fairness, and which frequently masks commercial interests that want to distribute or otherwise make creative works available without licensing.
Yeah. Sure. Who might be "standing on the shoulders of giants" by misappropriation in order to "sell something"? Could it be... say, Disney? The company that copied the works of others willy nilly without licensing at all, and then claimed copyright over all of it? And, no we're not just talking about the public domain (another important concept that the MPAA has trampled on over the years), but the whole concept of "Steamboat Willy" which launched Disney, which was copied from a film a year earlier. Or... how about the record labels, many of whom got their starts by taking classic songs from African Americans and giving them to white artists, then claiming copyrights over those songs. And those same operations regularly helped out artists like Bob Dylan and Led Zeppelin who were famous for simply rewriting the works of others without giving credits to the original artists. Some of us believe that was pretty creative -- but for a former RIAA exec to whine about "misappropriation... without licensing" is, well, a bit rich.
And then we get this bit of pure unadulterated nonsense:
When was the last time that someone was inspired by fair use? Fair use doesn’t enthrall us…it doesn’t capture our imaginations and transport us to places far away or tucked away deep in our memories. So how about this — why don’t we all recognize that celebration of fair use is actually a celebration of the benefits of fueling original creative expression, for if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant. We have no interest in accessing that which we don’t value.
Of course, one could say the exact same thing about copyright itself. It is not "copyright" that inspires or enthralls. It is content. And, frankly, these days, I find myself inspired and enthralled quite frequently by works that rely on fair use, from mashups to documentaries and the like.
And, yes, if we fail to produce cultural artifacts worth accessing, that's a problem. But it's not a problem, because (again) we're producing more such works than ever before in history, and an awful lot of that is due, either directly or indirectly, to fair use and building on the works of others. How many creators today actually got their starts by messing around and copying the works of others, editing videos they pulled from YouTube, or playing cover songs and posting them on sites like YouTube? The fact that we don't (usually!) sue those people out of existence is often thanks to fair use protections, and that has helped build a new generation of creators who don't rely on the MPAA or the RIAA as gatekeepers (perhaps this is why they are really upset).
Thus, fair use is, on its own, an exceedingly odd thing to celebrate. “Fair” is contextual, and “use” assumes a desire to access. I propose to the folks at fairuseweek.org a renaming ceremony. How about “sustaining creativity week?” If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations. Now that would be something to celebrate.
Again, everything said here applies many more times to copyright itself. And, frankly, if you want to see lots of "sustainable creativity" your best bet is not to look at the MPAAs and RIAAs of the world (shall we point you to the litany of lawsuits over Hollywood accounting and RIAA accounting that highlight how those industries tend to screw over actual creators?) but rather to the technology enablers and platforms that the MPAA and RIAA have fought against for decades. Look at things like Patreon and Kickstarter and YouTube and Spotify and Netflix and Apple: all tech platforms that the industry fought over the years. All of which have helped create new sustainable models where a much higher percentage of the revenue goes to actual creators, and where fair use and greater creativity is celebrated and encouraged. But, I guess, that would conflict just a little bit with the MPAA and RIAA members' business models of being a gatekeeper and keeping all the profits.
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Filed Under: copyright, creativity, fair use, fair use week, free speech, neil turkewitz
Companies: mpaa
Reader Comments
The First Word
“Hey MPAA dude, you know what's the simplest way to create "a wealth of accessible cultural artifacts"?
Stop making them harder to access! That's how.
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Hey MPAA dude, you know what's the simplest way to create "a wealth of accessible cultural artifacts"?
Stop making them harder to access! That's how.
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Speaking of false premises...
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.
Indeed, now wherever could people get the downright absurd idea that copyright is about serving the public, via temporary government granted monopolies? Perhaps from some moldy old document?
'To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.'
Nah, that couldn't be it, I mean everyone knows that copyright is rightful eternal(even if we still have to pretend that 'effectively eternal' isn't the same as 'eternal'), and it's only by the gracious permission that the public is allowed to enjoy any copyrighted works at all(only after paying of course).
When was the last time that someone was inspired by fair use? Fair use doesn’t enthrall us…it doesn’t capture our imaginations and transport us to places far away or tucked away deep in our memories.
This isn't just wrong, it's fractally wrong. I have run across near countless examples of creativity that exists in spite of copyright, works that were built upon what came before, some of which I'd say were as good if not better than the originals, and none of which would likely exist were the MPAA and their ilk able to dictate what forms of creativity were allowed or counted as real creativity.
So how about this — why don’t we all recognize that celebration of fair use is actually a celebration of the benefits of fueling original creative expression, for if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant.
And this of course is just downright hilarious, considering who it's coming from. The movie industry is packed with derivative works, whether they be sequels, reboots, 'film-adaptations' of other works or what have you. To have someone on Hollywood's side deride fair use as not resulting in 'new creations' is like having a serial plagiarist chiding others for not coming up with their own stuff.
If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations.
Assuming the copyright isn't lost in deaths, mergers, purchases and various other shenanigans, such that no-one dares use those 'cultural materials' for fear of being sued into the ground, due to the AA's of the world buying laws to ensure that nothing ever makes it into the public domain, where the public can make with it what they want without fear of legal action for doing so.
A 'wealth of ... cultural materials' doesn't do 'present and future generations' squat if it's all locked up forever, especially if fair use is undermined such that the only way to access it is to pay the parasitic gatekeepers.
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For Limited Times
It's not about balance. Or money. Or profits. Or creativity. Or commerce.
Those are merely temporary side effects of the temporary exclusivity.
Once the exclusivity is over, it is supposed to be over. The exclusive period is supposed to be limited. Not stretched out forever and ever until the heat death of the universe.
Fair use is an exception carved out in law so that certain uses important to society as a whole are still allowed despite the temporary exclusivity of copyright. For instance, news reporting. Criticism. Parody. Among others.
This may be fair use weak. But just a reminder: March is national procrastination week.
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Um... have you met memes? Could those exist with strong copyright? I don't think so... What about SNL? Parody is a form of fair use. Or how about your LOCAL NEWS COVERING A FACEBOOK STORY?!
I think the better question is:
When was the last time copyright stifled someone's inspiration?
*cough* Axanar *cough*
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... and if "EXCLUSIVE" then it means NO ONE ELSE can put up copies on file hosting sites.
SO IF you agree on "exclusive" THEN your use will be limited to small parts and "fair".
Now, you're itching to write that ALL of a small work can be used and it still be "fair use", but we're talking MPAA level major motion pictures, so don't bother: it's irrelevant.
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It also says "limited time". Guess who keeps violating that part of it.
"Now, you're itching to write that ALL of a small work can be used and it still be "fair use", but we're talking MPAA level major motion pictures, so don't bother: it's irrelevant."
Except, of course, that's bullshit. Copying a full movie is not fair use, and nobody is arguing for that.
HOWEVER, taking clips from that movie to use in a review, taking clips to illustrate points in a documentary, using designs or dialogue in a parody, etc. - THAT is fair use, and those are the things that are being attempted to be destroyed.
If you want to argue, at least listen to what people are actually saying. Either you're misconstruing the points, or you're deliberately lying in order to detract from the very valid complaints people are actually making.
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Read that way most of what they say makes perfect sense.
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Re: Re: Constitution says "THE EXCLUSIVE RIGHT" to make copies.
I'm trying to establish a baseline. EXCLUSIVE MEANS EXCLUSIVE, fine.
Now, by not objecting to my actual point, you tacitly agreed that "piracy" meaning putting up on file-hosts or torrent sites all of movies is NOT fair use, and therefore "piracy" is not to be allowed. Thanks! That's enough. -- Just don't spoil it now by hedging "BUT file-sharing must not be punished at all", because we've established a Constitutional right that surely has SOME prohibitions against copying and enforcement mechanisms.
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What this is about
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In a world without fair use...
Hundreds of Hollywood films would be examples of copyright "theft", from The Wizard of Oz, to Disney's Snow White to anything written by Dickens, Verne or any other author of the 19th century.
The estates of classical composers and musicians would be suing film and recording companies for illegal recordings of works such as Bolero, The Nutcracker Suite and The Maple Leaf Rag.
The MPAA and RIAA thought they were the tough guys on the block. Little did they know what they had unleashed!
FU - the movie
(fade to black)
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Fucked up, but corrected...
But the post has been updated to reflect this. Of course, it helps that the MPAA and RIAA are so reliably bad on this stuff, that it's easy to find examples of each of them disproving almost all of the points that Turkewitz dumps here.
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Re: Speaking of false premises...
The MPAA guy is right to call it a false premise. The constitution uses the Progress of Science and useful Arts as its only justification. If the Authors and Inventors happen to benefit, that's just a side-effect.
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Copyright clearly abridges the freedom of speech. Which was fine initially, but once the First Amendment was ratified it should have been judged to have repealed that clause.
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Well, Weird Al's latest album came out in 2014...
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Re: Re: Re: Constitution says "THE EXCLUSIVE RIGHT" to make copies.
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Re: Re: Re: Re: Constitution says "THE EXCLUSIVE RIGHT" to make copies.
I heard that if we allow people of the same gender to marry, then next we'll have people wanting to marry their cat.
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Re: Fucked up, but corrected...
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1) I don't agree that the operative word is 'exclusive'. The single most important part of the copyright clause is actually the part that isn't in the copyright clause. It's at the beginning of Art. I, section 8, and reads "The Congress shall have Power."
The copyright clause sets forth the particular parameters of the power, but what's important is that it is left up to Congress whether or not to use the power (Congress is not obligated to enact copyright laws, it merely can do so if it wishes to) and that it is up to Congress to decide to what extent it wishes to use the power, so long as it does so for the stated purposes and within but not beyond the stated limits.
So if there is going to be copyright at all, it must involve securing exclusive rights to authors (as opposed to initially granting a copyright to a publisher or other third party, as was once done) (n.b. also that this doesn't bar copyrights from being transferred after they are granted) but what the actual exclusive rights are is up to Congress so long as it is generally constitutional.
2) You misquoted the Constitution. It doesn't say "the exclusive right to make copies." It says "...the exclusive Right to their ... Writings...."
Congress doesn't have to give authors any copyright at all, though it can't give them to someone else. And if it does deign to give copyrights to authors, it generally gets to define just what that right consists of. There's no requirement that Congress must give authors an exclusive right to make copies. It's entirely possible to have copyright in which everyone is free to make copies without restriction but not to resell those copies, for example. Copyright law isn't fixed in stone; it can be nearly anything we want it to be.
3) in fact there are provisions in copyright law that allow for freely making copies of certain entire works as either being non-infringing or non-actionable. What you're talking about is really less making copies and more distributing (or technically publicly performing / displaying) copies, though.
4) Fairness does not require small excerpts in all cases. Time shifting and space shifting are both examples of fair uses that allow for copying works in their entirety. Time shifting frequently involves making complete copies of major motion pictures, by the way; that was even a central part of the Betamax case! Your example could not be crappier.
5) Also I suspect you don't understand what 'exclusive' means in this context, but it's not clear from what has been discussed so far, so I'll give you a pass on that for now.
TL;DR -- I do disagree with you actually, you misquoted the law, misunderstood the law, and used an example that actually is directly opposed to your argument, which is poor. Go practice making copyright maximalist arguments under a raging waterfall for ten years then come back when you have developed some competence at it.
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Re: Speaking of false premises...
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Re: Re: Re: Re: Re: Constitution says "THE EXCLUSIVE RIGHT" to make copies.
http://www.mirror.co.uk/news/weird-news/woman-marries-dog-romantic-wedding-3225948
http://www.d ailymail.co.uk/femail/article-2898715/Woman-celebrating-decade-marriage-two-pet-CATS-says-never-happ ier-no-plans-human-husband.html
http://pleated-jeans.com/2010/07/06/how-to-marry-your-pet/
I can also dig up links for marrying buildings if you like. Here's one:
http://www.dailymail.co.uk/news/article-2093016/Im-love-building-Woman-marry-warehouse-bizarre-w edding-ceremony.html
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Re: Re: Speaking of false premises...
As the saying goes,
“It is difficult to get a man to understand something, when his salary depends on his not understanding it.”
More stuff is being created than ever before, much of it in spite of copyright law(especially copyright law according to the AA's), but to admit that would be to admit that copyright does not in fact need to be constantly ratcheted up, and could in fact do with some reduction, which would undermine their whole argument of 'More copyright = More creativity'.
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Re: Fucked up, but corrected...
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Re: Re: Re: Re: Re: Re: Constitution says "THE EXCLUSIVE RIGHT" to make copies.
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Re: Re:
A 'Fair Use' issue made by someone who is attacking the very concept of fair use?
Clearly he's just too lazy and uncreative to come up with his own words to explain the concept, and has to steal them from other people, taking money out of the pockets of those he could have paid to come up with something simply because he's too cheap to do so.
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Re: Re: Re: Constitution says "THE EXCLUSIVE RIGHT" to make copies.
Apart from the stated exceptions, sure. It's not my fault reality is too nuanced for you.
"you tacitly agreed that "piracy" meaning putting up on file-hosts or torrent sites all of movies is NOT fair use, and therefore "piracy" is not to be allowed"
Yep, that's reality.
"Just don't spoil it now by hedging "BUT file-sharing must not be punished at all""
Where did I say that?
If you're finding reality too complicated, stop lying about it and admit you don't understand what people are saying.
"because we've established a Constitutional right that surely has SOME prohibitions against copying and enforcement mechanisms."
Yes, just not the ones you've made up in your head. Objective reality is where the rest of us live, join us it's fun!
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