Quirks and bugs are not only for geeks
Web pages riddled with quirks and bugs threaten end-users’ web accessibility. They are “enemies” of free, open and fair internet. However, a country’s institutional and regulatory frameworks may also be mired with quirks and bugs. They threaten competing software companies’ market access to the country. Local software companies suffer as well. End-users, too.
These are problems which cannot be dealt with by “technical” support staff. They are not a “user support” issue. And yet, one cannot hope to “open the web” without sorting out these institutional quirks and bugs. Community-driven web standard movement, which has so far been pursued with the best of intentions and enthusiasm, simply cannot cope with this type of “bugs”. But it is not only web pages which require debugging. Each country’s institutional and regulatory frameworks are also in need of proper investigation and bug-fixing.
Internet technology is international. But each country’s institutional and regulatory frameworks shaping that country’s internet environment, are not. Software developers (especially their marketing team) might have no clue why in some countries, their product is gaining market share, whereas in others it is languishing. The answer does not lie in technical support or consumer taste. The secret is in the legal and institutional arrangement.
Building on the splendid resources and know-how accumulated over the years, web standard movement should now be “upgraded” to version 2.0 with substantially enhanced features: managerial participation with reinforced legal support. In order to achieve this, some serious re-thinking is necessary.
‘open web’ v. ‘closed web’
The conventional divide between open source community and proprietary software companies would need a subtle re-alignment. The new divide should be between those who thrive in the “open web” and those who thrive in a “closed web”. Mozilla community should embrace and welcome Opera’s real contributions to “open the web”. Mozilla has been energetically campaigning for standard compliance; Opera has put in real money to make the difference. Open source community should not, and I think does not, claim to be the sole standard bearer for the honourable cause of open and fair internet. Nor is Opera the only company with legitimate business reasons to support the open web. Countless other companies, such as Apple, Nokia, Orange, etc., are in the same position. They should all rally forces with open source community in order to achieve the “open web”.
A new front should be drawn between all those who support the “open web” and a single company which is trying to lock itself in a “closed web” together with its clients.
“Open source” legal resources
Lawyers can also emulate open source community’s laudable initiative in the spirit of public service and sharing. In some sense, lawyers are also “technical” and “engineering” people. They deal with a different type of “technicality”; and they often play a vitally important role in “social engineering”.
For years, thousands of end-users in Korea have repeatedly expressed their grievances and frustration. “Technical” community could easily spot the “technical” causes of the problem. But as far as legal and regulatory quirks are concerned, they’re no different from end-users. They all had no idea where to look into. Open Web Korea has changed this. We now know where to look for solutions for the institutional failures and leaks.
This is a task which can only be done at the local level. “Technical” bug-fixing can, and must, be done internationally and uniformly. But institutional and legal quirks are local in nature. But we can provide internationally managed and concerted support for local legal experts to uncover their local problems and diagnose possible solutions. In fact, we must. We might even have to put in some money for this. This is not because lawyers are inherently lacking in aspirations for public service. The example of Professor Lawrence Lessig should be enough to dispel this sort of misconception, if any.
The simple reason why lawyers need some “extra” encouragements for this task is because there are relatively fewer lawyers who have an expertise in internet technology. We should actively seek potential candidates in each country and, if necessary, provide technical education in the form of scholarships, special courses or workshops. These local legal experts can then study their local case and make the information freely available for the international community. The horrible situation in Korea remained unknown except perhaps to Microsoft who can afford to spend an incomparable amount of legal budget. Smaller companies attempting to compete in Korea simply cannot have a level playing field. Even bigger competitors were left in the dark. If Opera, Nokia, Apple, etc. were already fully aware of what I made available in Korean Saga, please let me know. I shall withdraw this proposal.
Can we be sure that Korea is an exceptional case? What about Japan? Taiwan? Malaysia? Or France, for that matter. I don’t know whether other countries are any better or worse (which would truly be a remarkable feat!). Taiwan, for example, seems to be energetically pushing for hardware compatibility for Linux: “Government says all new PCs must be Linux-friendly”, Taipei Times, 3 June 2006. Oh, well, Korea has had even more glowing news coverage, hasn’t it? “Korea jettisons Windows for Linux”
Free legal resources v. Payable legal resources
If there are local or international law firms which feel threatened by availability of community-provided free legal resources, these firms are second or third rate law firms whose existence should rightly be threatened. There is an interesting parallel. Open source software has been regarded by some misguided commercial software companies as if it could threaten their prosperity. But open source software does not aim to annihilate proprietary software companies. It will provide a wider and more fertile market where even more commercial software companies can share the increased amount of business. Law firms which are afraid of community-provided legal resources are misguided in the same manner. Their fear stems from their professional inadequacy. Top quality law firms’ professional services will only start from the level of legal information contained in the community-provided legal resources. They are the minimum basis which all competitors, big and small, should be entitled to have for a starter. They should not be the main course. Law firms whose business is likely to be diminished by this level of open legal resources are the ones who have so far been selling low quality services at a high price; a practice which is rampant in a fragmented and closed market where disparity of resources and information is relatively high.
Why local efforts should be supported by international community?
Because this is where international software companies do their business. They do business in the locality, not in some “international space”. But there are far more cogent grounds for pooling resources and use them in a concentrated manner in each case. End-users or local software companies wishing to take a stand will have to face formidable foes: their own government and a gigantic company which can mobilise unparalleled legal resources. In a country where the legal market is relatively small, these two entities are among the main sources of income for major law firms in the capital city. It is not easy to find decent law firms which can take up this matter without conflict of interests. Moreover, in a country where pro bono legal service in civil matters is almost unheard of (like Korea), end-users have no chance of starting a legal battle.
The scale of resources required for each case will vary depending on the country’s legal system. Legal fees vary from country to country. In some countries, the winning party may be able to claim all or a substantial part of its legal fees from the losing party. In others, each party should pay for most of its own legal fees regardless of the outcome. The strength of the case and the prospect of success should be carefully assessed and a decision should be made to support a case which is most likely to produce effective results. No doubt, individual software companies which have business presence in the country may all join in as the parties. The community can co-ordinate this joint effort.
The local or international law firms retained by the community to take up the case must make the work it has done for the case available for the community once the case is over. The cloak of confidentiality which is cast over the communications between lawyer and client, is for the protection of client, not for the lawyer. If the client wishes to make the information freely available for the international community, lawyers have no ground to refuse to do so. Some law firms, like some software companies, might take the view that the prosperity of their business relies on keeping their hard-earned knowledge hidden from the rest of the world. As if they lost their ability to gain more knowledge. As if knowledge has a finite quantum and you lose your knowledge by sharing it. As if they can thrive only when others are ignorant rather than knowledgeable. As if their expertise consists in hoarding up knowledge rather than sharing it and demonstrating their superior ability to use it. Such law firms will not accept the job. And we are happy for it.
Reasons for the new approach
“Technical” approach to promote web standards made sense while governments took little notice or had no clear idea about what to do with the internet. While provision of web-based services were being experimented largely at the initiative of private entities, there were no clear legal rules about how the country’s internet environment should be shaped.
Things have changed now. Almost all governments in the world have realised that internet is bound to be the crucially important infrastructure for good governance. E-government is mushrooming everywhere in the world. Electronic Signature Act of Korea came into force in July 1999. The Ley de firma electrónica of Spain was enacted in December 2003. Korean E-government Act came into force in July 2001. All these efforts have recently begun. In many countries, the institutional and regulatory frameworks for their internet and e-government are, as it were, still in “Beta stage”. It is hardly surprising that there are a lot of “institutional and legal” bug-fixing to do.
I hope my proposal will sound anything but revolutionary. If it does appear to be a novelty to some readers, it is not because of the proposed solutions. It is due to the novelty of the problems.
Internet started as a military effort to experiment new means of communication. It was subsequently used mainly to promote porn industry. It has now become the basis of government. All of these are capable of bringing out the best and worst in human nature. The pace of change has been rapid. Our approach to cope with the problems should also swiftly adapt to the new challenges.