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Opera's antitrust complaint and political control of web standards

Opera's antitrust complaint against Microsoft has become the talk of the town. Right now everybody focuses on Opera's anti-Microsoft stance and the effect Opera's action may or may not have on W3C Working Groups. Jeremy provides a useful summary.

What's lacking in the current discussion is an appreciation of the potentially disastrous consequences of "asking the European Commission to require Microsoft to follow fundamental and open Web standards accepted by the Web-authoring communities."

I found only one article that clearly points out this danger, but the author seems to think that the European Commission is a court of law. It isn't. It's a political body peopled by politicians.

The advanced state of institutional chaos at European Union level has required the Commission to take on some judicial powers in order to get anything decided, but in the end its functions are political, and its members are guided by political considerations—most notably the careful hoarding of powers they have been granted.

So Opera is asking a political body to take control of web standards in the name of "Web-authoring communities" I'm part of—but without considering the consequences of its actions and without consulting said communities.

Opera's request is putting us all in appalling danger. Therefore I'd like to ask Opera to drop it. Now.

(And yes, you're reading the second version of this article. See the note below for an explanation of what happened to the first version.)

The request

Let's see what Opera wants:

Opera requests the Commission to implement two remedies to Microsoft's abusive actions. First, it requests the Commission to obligate Microsoft to unbundle Internet Explorer from Windows and/or carry alternative browsers pre-installed on the desktop. Second, it asks the European Commission to require Microsoft to follow fundamental and open Web standards accepted by the Web-authoring communities.

The first request is nothing new. Microsoft was required to unbundle Windows Media Player in a similar case, so why not try to apply the same logic to the browser, too?

Opera's action is pointless, because nobody cares which browser he's using. Even if IE is unbundled from Windows, few users will actually switch browsers. Anyone who is already aware of the existence of multiple browsers is also able to download and install a new one.

I agree with Eric that Opera's tone of voice is too anti-Microsoft for this new era of detente. Be that as it may, the request is clearly an open competition issue; and judging such cases has been a European Commission prerogative for quite a while now. There's nothing new here.

So even though Opera's first request is pointless and distinctly behind the times, it's also safe. It's, as Zeldman says, a legal issue that will not affect anyone but Microsoft.

The problem

The second request is anything but safe. In fact, I feel that it's the most appalling danger web standards have ever faced.

Why? Because Opera is asking the European Commission to judge Microsoft's implementation of the web standards—thus giving it power in the web standards arena.

(As an aside, Opera's press release doesn't define the web standards it wants the European Commission to require Microsoft to follow. It could easily have pointed to the W3C website to define those standards, but doesn't. In fact, the term "W3C" doesn't occur even once in the entire press release—or in the open letter, for that matter. A curious omission—Opera is essentially requesting a judgement about undefined standards. One assumes the official version that's been sent to Brussels does mention W3C in passing.)

Now I think that the European Commission is going to take the single logical course of action: it's going to declare itself unqualified to judge Microsoft's implementation of the web standards.

If that happens, everybody can breathe again and I'll have written this entry for nothing. Let me be clear: I hope this happens.

Nonetheless, let's for a moment suppose that Opera gets what it wants. Let's suppose that the European Commission decides in favour of Opera. At that moment, web standards will have come under political control.

A new power

"Requiring Microsoft to follow fundamental and open Web standards" is not a competition issue, as the unbundling demand is. It's something entirely new.

It's a proposal to give the European Commission power over web standards—something it hasn't hitherto enjoyed.

Opera is asking the European Commission to judge Microsoft's implementation of the web standards—and punish it if necessary.

By implication, the European Commission has the right to judge anyone's web standards implementation—and punish if necessary.

Without consulting anybody, Opera is trying to turn over the right to judge web standards implementations to a political body.

Judging Opera

One of the funniest consequences of this request is that Opera will have given the European Commission the power to judge Opera's own implementation of the web standards.

After all, if the European Commission can "require Microsoft to follow fundamental and open Web standards," it can "require" Opera to do the same. That's logical and equitable.

Suppose that I, as a European citizen with an interest in as well as an excellent knowledge of web standards implementation, study my compatibility tables and find that Opera doesn't handle :last-child selectors in dynamic cases and doesn't implement getElementsByName() correctly.

Now Opera's own actions have made it possible for me to request the European Commission to require Opera to mend these problems immediately. Or else.

That might sound good, but it isn't. After all, in the new situation that Opera created it's entirely up to the European Commission to decide whether these slight deviations from the web standards are serious enough to require Opera to mend them. Neither the W3C, nor the browser vendors, nor even us web developers, will have a say in the matter.

If Opera gets what it wants, anyone with an axe to grind can bring Microsoft, Mozilla, Apple, or even Opera itself before the European Commission on a charge of breaking web standards and win. After all, no browser supports the web standards perfectly.

If Opera gets what it wants, web standards will be drawn into the political realm forever. Political bodies never give up power. Not because they or their members are evil, but because gathering and jealously guarding such powers is the point of being a political body.

Further dangers

For the first time in history we have entered a period of profound detente where browser vendors cooperate to a significant degree instead of fighting out their differences in any court they can find.

Andy Clarke feels that Opera's complaint could threaten this detente, while Zeldman maintains that legal action doesn't necessarily equate uncooperativeness in standards bodies, and that the detente might hold.

Zeldman is probably right that the detente won't break over Opera's actions. Unfortunately it doesn't matter whether it breaks down now or in five or ten years' time. The point is that we cannot say with certainty that it'll never break down.

And if the detente breaks down when the European Commission has grown into its new role as supreme arbiter of web standards, we have a serious problem on our hands.

If the detente breaks down, market players will revert to naked power to force their proprietary solutions down their competitors' throats. That's nothing new; we've seen that before and survived.

However, this time around the situation will be different. This time around, we'll have a political body that can "require" all other players to implement one proprietary system. This time around, we'll have a higher authority that can decide who "wins."

Deciding what constitutes a web standard

With the European Commission already judging web standards implementation of individual browsers, it's only a small step to giving it the power to decide whether something does or does not constitute a web standard.

When the detente breaks down, all market parties will claim loudly that the European Commission in fact has that power. After all, pushing your proprietary solution becomes much easier when a "higher authority" says you're "right."

Lobbyists from all major players will flock to Brussels to talk the European Commission into recognising their proprietary system as the One True Standard. Protracted battles will ensue and it may take years for a winner to emerge.

Nonetheless—and that's the point—all parties will agree that the European Commission has the power to decide who "wins."

It doesn't matter whether the European Commission caves in to big business without even the shadow of a fight or valiantly upholds the W3C standards for years against all comers.

The point is that it's the European Commission—and only the European Commission—that decides. Web developers, the W3C, even Opera, we'll have no say in the matter.

In my view this power does not belong to the European Commission but to the international web standards community.

In my view Opera is tragically wrong in begging the European Commission to accept this power—and the implicit claim that it acts in the interest of "Web-authoring communities" only adds insult to injury.

Opera, drop it

Therefore Opera should not "ask the European Commission to require Microsoft to follow fundamental and open Web standards accepted by the Web-authoring communities."

This request should be dropped now because it could be construed as giving the European Commission the right to decide which web standard implementations (and maybe even which web standards) are "right" and which ones are "wrong."

I'd like to ask Opera not to take such appalling risks in the name of "Web-authoring communities" that I belong to without asking for our opinions beforehand.

I'd like to ask Opera to henceforth consider the consequences of such blatantly political actions before taking them.

I'd like to ask Opera not to hand over control of web standards to a political body.

Version note

You've read the second version of this article. I published the first version two weeks ago, and removed it one day later. Since I got a few mails of people who didn't understand why I did that, or who even suggested that "censorship" was at work, I'd like to state categorically that nobody pressured me into anything. I removed the first version for two personal reasons:

1. The first version was badly written. I wrote it when I was profoundly tired and needed a holiday. Therefore the first version whined far too much, was too long, and didn't bring my point across very well.
2. I didn't feel up to handling the feedback—positive or negative—that would inevitably come my way. I didn't want to spend a holiday meant for rest and relaxation by sending important mails to important people. I might easily have made a mistake due to extreme tiredness.

For those two reasons I removed the first version. Now that I'm feeling much more rested I decided I still wanted to make this point, and that's why I wrote and published this second version.

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