Policy Ain't the Only Way to Change the Game

By Nathaniel James, Community Engagement Specialist, Mozilla
At the risk of being accused of changing the subject, or worse, heresy, I want to offer the following:

Fighting on the policy front is not the only way for artists (or "creators" going forward) to maintain and expand their creative rights in our communications system. 

I'm going to argue that there are many points of intervention when it comes to the evolution of technology in society, that artists are already taking the lead on these other fronts (in addition to policy), and that recognizing and leveraging creators' strengths outside of policy-focused strategies will make the policy battles go much better for us.

Why am I doing this?  I have spent a few years fighting the good policy battle in the media and communications sectors.  As one of the wonkier NAMAC board members, I still do.  I can't argue with a lot of what's already been said...

Policy is hard. Check.
Big money tends to win in Washington. Check.
The groups working on cultural and communication policies for the public benefit need more resources. Check.
Representing and empowering "artists" in policy debates is a non-trivial proposition. Check.

However, I see at least two problematic trends in the conversation so far.  First, I don't want us to get stuck on what I would call policy determinism.  The idea that "getting the policy right" will make the world a better place for creators doesn't always work.  As the political is the art of compromise, no one wins 100% of what they want out of a policy debate.  Reforms come with new loopholes baked in (see campaign finance).  The result of government action are never predictable (see, ARPANET).  Regulators are captured by the industries they were meant to oversee (see, well, any regulator).

The bottom line is that policy changes are not the sole (or often the most important) mechanisms shaping the structure and impact of any technology or industry.

Second, I'm afraid we could run in endless circles trying to find the magic bullet that would strengthen the creator's voice in the policy debate.  I hope we have some great ideas, but we're up against several limiting factors. 

Leaders in every policy change effort are trying to get everyone, including creators, involved in their thing.  As I sat down to write this piece, I got an email asking me to help involve artists in the climate change fight.  There's only so much activism time in the day.
While I support the idea of an awesome iPhone app for creator activism, and I really like what I read about Fractured Atlas's Bay Area Cultural Asset Map in Ian's post, I'm always wary of Shiny Object Syndrome.  Online tools are just tools, and a hammer is only going to get you so far without a blueprint.  

Worst of all, we're limited by the fact that, when push comes to shove, policy fights just aren't that sexy, especially when technology is at the heart of the debate.  Put as much lipstick on that pig as you want, making law has too much in common with making sausage to turn most people on.  I suppose I slaughtered that analogy.

For all these reasons, we have to understand what else creators can do and what they are already doing that can play into creating the world of boundless creative freedom that we'd like to see.  In the immortal words of President Bartlett, as he gave Sam Seaborn a priceless chess lesson (Season 3, Episode 58), before you make your next move, you need to "See the whole board."

So, what other tools and sites for intervention are there when it comes to creative freedom online (or on the airwaves)? To get there, it's important to have a working theory of technological change and evolution.  

There are a lot of theories to choose from.  For working out social change strategies, I always return to Lawrence Lessig's argument at the beginning of his first book, Code and Other Laws of Cyberspace.  To make his first and now famous point that "code is law," he first offered a model of how any complex system or subject, like the internet, is regulated through four modes or "constraints."  These are:

  • Architecture: the "code" or design of the system.
  • Markets: the interplay of choice and competition within a system.
  • Norms: how people act upon and within the system.
  • Law: what the government wants the system to do.
This gets really complex if you think about how each of these modes shapes the others, but we'll leave that aside.  

Primarily, this model suggests that law (or policy) is just 25% of the picture when it comes to regulating the internet (or the health care system, etc, etc.).  At all times, complex systems like the internet are malleable forms of potential being poked, prodded, deformed, and constantly reformed by these powerful forces. 

And I'm going to tell you this is really good news.  It means there are at least four points of entry for those of us who want our communication system to evolve to reflect our values on creative expression, even more if we start mixing and matching.  It means that your engagement strategy with the creative communities you touch can be nimble, responsive to change, and value multiple forms of participation.  Even better news: creators are acting through every mode already.  If you're reading this, chances are you too are shaping our communications system through multiple means.  It's time to name it, claim it, and think through how each mode of impact can support the others.

Following are some examples of creators at work on each non-policy front.  Full disclosure, I am involved in some of these efforts; that's just how I know about them.

  • Architecture: A new project, Web Made Movies is a laboratory bringing together film makers and web developers to explore the full potential of HTML5 for the online video experience.  Together video producers and developers can embed video with metadata that interacts with other streams of information and users online, making internet video a more webby (and more exciting) experience for audience/participants than ever before, all based on free, open standards.

  • Markets: Every time a recording artist opts to use a Creative Commons license and explains their choice to their audience, they are adding a new element to the music marketplace, daring to share (and share alike), and increasing mindshare for the concepts of radical online openness and new business models for working musicians.
  • Norms: At next year's digital arts and culture festival Transmediale in Berlin, an artist (or artists) will win the first Open Web Award of 5000 Euro for works that are on the web and about the web, use open and free technology, and incite participation and collaboration.  There are many artists working along these lines, and nothing creates incentives for leaders pioneering new norms like a cash prize and recognition!
There are many more examples of creators influencing the direction of communications technology through non-policy interventions.  In fact, I hope that respondents or those leaving comments can link to other efforts.  Creators are good at creating: new designs, new markets, and new norms - we need to recognize those strengths and add them to our strategic toolbox with deep intention.  

Now, back to policy.  Why am I bringing these ideas into a discussion on artist's creative rights and policy?  

First off, on principle, if you don't like the system, innovate.  Break some rules, slay some sacred cows, claim your rights in practice, and let the legal realm follow.  Artists and creators have always done this (see the Howl trials). 

Secondly, the big players in media, IT, and communications, the Microsofts, Comcasts, Apples, and Googles, are always playing all four fields.  Each shapes the design of the communication systems through their technologies, each has a market strategy, each spends millions on advertising as just one intervention in shaping norms, and each has a government affairs team.  It reminds me of a pep talk at an elections training for activists who normally work on issue advocacy (as opposed to party types focused on elections).  The speaker said, "If you don't do elections, elections will do you."  If we, as a community of arts advocates, aren't bringing strategic interventions into the realms of architecture, markets, and norms, those realms will do us. in.

Finally, we've got an amazing story to tell.  Let me repeat, "creators are demanding, and building, the open future of creative freedom in communications."  As several participants in this group blog have pointed out, narrative is one of our constantly renewable, effective resources in the policy battle.  I think Casey from FMC brought this up first.  That makes a lot of sense, as FMC is very good at bringing musicians to the table to tell their stories.  

This is especially relevant in the Obama era.  Nothing wins in the rhetorical war over technology policy right now more than the innovation appeal.  Fact: when the new President needed someone to lead the FCC and, in theory, defend net neutrality, he did not go knocking on the doors of the dozen or so established and qualified public interest communications lawyers.  Why pick a confirmation fight for someone with a public record of controversial positions when you can get a leader from the innovation-obsessed culture of Silicon Valley, with just enough government experience, at half the political price?  This bent toward perceived innovators vs. public interest champs was a recurring theme in the Obama appointments in the information and communication technology space.

Fact: for a long time, the big ISPs (Comcast, AT&T, etc.) were beating Google all around the FCC on the net neutrality issue, because at the end of the day, Google was providing Web services and "didn't know what it was talking about" concerning network provision and management.  So Google called their bluff, and decided to build their own damn network, open access and network neutral and promised to share everything they learn along the way with the public and regulators.  It's a powerful gamble, and I hope it pays off.  

I'm not suggesting that the arts advocacy community build a fiber network, of course (although...).  I'm just trying to make the point that, in this policy environment, arguments premised on values like creative freedom are only going to get us so far.  Government decision makers are looking for proof in the pudding.  They want people at the table who are building the future as innovators.  I believe we have those people.

Apologies for the long piece.  To close what may be my one contribution to this group blog (busy week), I hope we see winning policy battles as just one means to a greater end: ever-expanding creative rights for everyone.  I hope we take a good look at all of our communities' strengths as change agents in the world, and how to leverage each strength to support the others.  And I hope this helps us expand our notion of creators as activists and what it means to offer engagement opportunities for creators.      
July 20, 2010 9:44 PM | | Comments (1) |


This is a wonderful and informative overview of how activity on the web evolves. But after studying the whole chess board there still comes that moment when we need to make the next move. You mention the Transmediale in Berlin. There’s also Ars Electronica in Austria, and Ircam in Paris (along with the Ensemble Comtemporain and the Centre Pompidu.) As long as Europeans continue to massively fund institutions for digital arts like these and Americans don’t, American artists will continue to be put in a losing position. We are being screwed. It’s telling that Americans do all the work to create the Internet and develop digital technology, while Europeans sweep up the cultural prestige. This is a direct result of cultural policy. They’re making the better moves.

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