Watson & Chervokas

Why, exactly, do Tom Watson and Jason Chervokas over at Inside practically never make any sense?

We’ve dissed them before and have name-dropped the dyslexic duo a few times, but mostly we just frown and try to decipher the distinctive English-like language-encoding system Watson and Chervokas hammer out on their Smith-Coronas. It’s like decoding the nasal mutterings of a dwarf on Twin Peaks.

What are the little christers up to now?

Well, apparently “content” is the original open-source sector.

Think about music. What’s the “source code” of popular music? The 32-bar, AABA song form? Diatonic melody? The blues? Well, sure. On top of those basic innovations, which are owned by no one, succeeding generations of creators have built specific copy-protected works that they’ve marketed, but which in turn became the basis for future inventions. Did George Gershwin sue every be-bopper who wrote songs on top of “I Got Rhythm” chord changes? Of course not. Because the arts have always worked this way. How many times have western writers plundered The Odyssey for themes, drama, situations, characters?

(Question: Did the dyslexic duo come up with this harebrained analogy upon stumbling out of a liquid-lunch matinée of O Brother, Where Art Thou?)

Watson and Chervokas appear to be proposing a Quest for Fire theory of intellectual property: Everything evolved from grunts, which can’t be protected, so nothing today should be protected, either.

Irreducible atomic particles of a communication system, like an alphabet or kanji or sound waves at a specific hertz, can no more be protected by intellectual-property law than can hydrogen, an octopus, or the sun. (Yes, OK, alphabets and kanji and even sound waves can be subdivided, but not in general practice. They’re the building blocks. And yes, you can patent living organisms – but we’ll see how long that lasts.) It is oxymoronic to equate any of this to open-sourcing. You can’t choose to open-source intellectual property if it isn’t intellectual property in the first place.

Further, Watson and Chervokas mistake sampling and inspiration for duplication and adaptation.

Gershwin’s heirs indeed might not sue anybody. Why bother? We’ve had excellent systems for clearing samples in musical works for a good decade now. (Yet again, experts in “new” media forget the lessons of preceding media. Copyright-infringement lawsuits were filed in a flurry in the 1990s over the issue of sampling. A few actually got through the courts. Industry practice altered to simply pay for samples in new recordings – on the bigger labels, in any event.) The owners of Gershwin’s estate can live quite comfortably on sampling fees alone. And rightly so. They own the work.
Entire films have been inspired by something as simple as a the title of a pop song (My Own Private Idaho) or as divergent from the cinematic medium as a painter’s œuvre (La La La Human Steps’ wordless dance film Velázquez’s Little Museum). This too has nothing to do with copyright protection, let alone open-sourcing.
- You can’t copyright a song title, though it might be possible to trademark it. (Lyrics can be and are copyrighted.) Only under certain circumstances do you need permission to film an ancient painting, which Velázquez’s Little Museum didn’t even do.
- The source of an inspiration is not the sort of thing you want to protect in the first place. (Your imagination is your own. It does not require pre-licensing.) You cannot then opt to remove the protection via an open-source license; protection was never there to remove.
Meanwhile, open-sourcing is manifestly relevant to duplication and adaptation. If you want to rip a DVD (one you bought fair and squre) to watch it on your Linux box, you’re duplicating protected works. (You may nonetheless have the right to do it. Copyright newbies tend to assume “copyright” means “copying is never permitted.” These are invariably the people who do it anyway.) If you want to shoot a remake of Psycho, you need permission. Efficiencies can be built into the system: You don’t need permission from Jennifer Lopez, her label, or her songwriter to record a grindcore cover version of “Waiting for Tonight”; you just have to pay certain fees and royalties. Rightsholders can opt to open-source such property.

While “the arts have [not] always worked this way,” that’s how they work now. Sure, file-sharing and even the simple display of Web pages in a computer will require the touching up of copyright laws, but let’s not throw the baby out with the bathwater here.

And let’s stay on topic. Even if some irreducible base concepts could be traced back from every copyrighted work, it does not follow that the copyright is void. (If you find out at age 20 that you were adopted, do your parents suddenly cease to be your parents?)

We understand why geeks and teenage boys seek the wholesale overthrow of copyright law, which they declare passé: They want to steal Microsoft Office and Limp Bizkit albums (or vice-versa) and don’t want to be bothered with the vagaries of, and decades of case law surrounding, concepts like fair use and fair dealing. Yet two writer/intellectuals, two seasoned veterans of the “content” biz, two well-funded conference presenters and consultants, seem to be reaching for nearly the same goal. The difference? Watson and Chervokas are trying to define copyright out of existence. Isn’t this actually worse than ignoring copyright completely?

Posted on 2001-02-27