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.

This is the blog of Peter-Paul Koch, mobile platform strategist, consultant, and trainer. You can also follow him on Twitter.
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1 Posted by Will on 3 January 2008 | Permalink

Thank you for saying what I have been thinking.

Adherence to standards will be worked out by the marketplace (ie8 for example), and the involvement of an "arbitrary" political body will rob the user of power over their web experience.

And isn't that very power the point of web standards?

2 Posted by Josh Stodola on 3 January 2008 | Permalink

Agreed. Fully. Thank you!

3 Posted by Oliver on 3 January 2008 | Permalink

I'm sorry but despite the amount of commentary to the effect that Opera shouldn't be asking for the EC's help I don't follow.

The consequence of the worst case scenario you depict - the European Commission acquiring control of web standards and then requiring vendors to implement standards they haven't yet - is bad because...?

It's 2008 and IE is *still* making web development difficult and expensive. IE8 renders the Acid2 Test correctly but isn't out, and when it finally does get released we'll *still* have IE6 to contend with for the foreseeable future.

It seems to me that the assumption that the EC - for all that it's a political body - will necessarily make a bad job of providing some kind of oversight (that isn't utterly toothless) is unwarranted. Why presume that they wouldn't simply take the extant standards published by the W3C as the benchmark? Who else can drive the change?

4 Posted by Aaron H on 3 January 2008 | Permalink

Agreed

5 Posted by Georg on 3 January 2008 | Permalink

Nobody is "handing over control" of web standards to the European Commission. Either the EC has (some) control already, or it hasn't. Either way, it would be good to know what kind of control the EC has or has not when it comes to web standards, sooner rather than later.

6 Posted by Dean Edwards on 4 January 2008 | Permalink

I'm glad you put this article back up. You raise some interesting points.

7 Posted by Pete b on 4 January 2008 | Permalink

Opera are really looking a bit foolish now that Microsoft are clearly implementing and taking standards seriously (see IE8 video).

Last year they were so smug about passing the acid2 test and rubbing microsoft's face in it. Now they just look like they're acting out of sheer desperation now that their market share hasn't increased at all.

8 Posted by Barney on 4 January 2008 | Permalink

Making web standards a legal affair is madness, granted. They don't belong to Opera to give over to the EC in the first place, and I'm entirely certain the EC doesn't want this privilege/mind-boggling hassle that likely won't help anyone, nor would it partake in whatever bargain Opera seem to be proposing if they did.

Unbundling IE is a fair demand though, and I think your counter-argument is pretty tenuous. It's the one serious argument there, and the logic is fair: if the consumer freedom of the user to get their first browser of choice is fair enough (and I for one really do), let that happen. If you want to get out of dubious magnanimous statements about how much of our vision the user needs to benefit from, then you might cite the impossible job of competing as a financial entity for Omni's browser.

I think that particular motion deserves supporting.

9 Posted by BARTdG on 4 January 2008 | Permalink

I agree with Barney. Of course the EC will declare itself unqualified to judge Microsoft's implementation of the web standards. Nothing to worry about.

And I do think Opera has a point in the unbundling question. It's quite strange that the EC has taken action against bundling Media Player with Windows, while the far more obvious case of Internet Explorer has been ignored.

10 Posted by Will on 4 January 2008 | Permalink

Oliver,

We are going to have to content with ie6 for the foreseeable future regardless of the outcome here.

Maybe it's my American slant on things, but I don't want to see us also have to contend with a *new* standard that a governmental body has decided (with or without expert opinion) should be the standard worldwide. The market is the right place for the future of our fledgling craft to be decided. Over here (USA), any time a new political/governmental body takes something over, they make new problems worse than the old, and never relinquish their powers to their rightful owners (the people).

A bad outcome here will institutionalize the very things we rail against: lack of user control, weakening our (web professionals, W3C, WCAG, etc) control over our craft, and a slow-moving unqualified group controlling the web.

I don't want politics to rule the web. We're on the verge of bringing M$ onto our side with ie8. The marketplace is winning.

11 Posted by Dan Knapp on 4 January 2008 | Permalink

I was one of the ones who sent you a thank-you note after noticing the original article had been taken down. I definitely understand not wanting to deal with everyone's reactions! I am very happy to see that you revised it and put it back up, though.

I completely agree with your point, and it needs saying, and yours is an important voice in this community. So. Thanks for weighing in!

12 Posted by David Storey on 5 January 2008 | Permalink

Thanks for putting the post back up. It adds an important point of view, that should be expressed.

The whole issue is something that is fustrating to me, as I know details that can't be said in public. I would say in general that I'm personally not in favour of this, but I very much understand why it happened.

Sadly, the text of the complaint can't be seen yet, so most opinions are based on guess work and the text of our press release. Both texts are not exactly the same.

Haakon also spelt out more on the standards support:

Who should write the list? Fortunately, we don't need for someone to decide on a list. This is what Microsoft wrote in 1998:

"Microsoft has a deep commitment to working with the W3C on HTML and CSS...We are still committed to complete implementations of the Recommendations of the W3C in this area (CSS and HTML and the DOM)."

As you can see, Microsoft picked the standards themselves and there is no need for the European Commission or Opera to do so.
--

I don't think Opera are asking in the complaint for the courts to choose.

You also have to worry how much more MS are pushing Silverlight than IE. Look at what things Silverlight support than IE doesn't that are in W3C specs.

13 Posted by ppk on 5 January 2008 | Permalink

Thanks, David, for the clarifications. It's good to know that the official text of the complaint cannot be found online yet. It wasn't just me not searching hard enough.

As to the exact nature of the standards involved: everybody (maybe including the EC) understands that Opera means the W3C standards. However (and that's my point) if the EC gets so much new power it might change its mind later on and decide that, for instance, Silverlight is the True Standard. And by then they'll have the right to require all browsers to implement it. That's my fear.

14 Posted by Ann Bradley on 5 January 2008 | Permalink

I couldn't find the full text of the complaint as well, now I at least know why :) Any ideas when it will be published as a whole?

15 Posted by David Storey on 6 January 2008 | Permalink

I've no idea when it will be published. I've nt even read it myself. I suppose there is legal things that have to be followed first.

As far as I know, I don't think Opera is asking in the complaint for the EC to pick the standards, but I can't comment any more on that. I very much doubt the EC would ever force browsers to implement Silverlight, as it would have to be an open standards, with a spec so that we can implement it, and be royalty free and patent free so we could without getting sued by MS for implementing it. I would guess anyway. I'm not well versed in such things, but I'm sure our lawyers and whoever at Opera that filed the complaint, do know about such matters. The EC also doesn't have any control of other markets outside the EU too, so I would also guess if they did force certain technologies, then they wouldn't have to be included in browsers shipped in Asia or America or Africa. That being the case, if browsers removed that support outside the EU, then no global site would ever be able to use that technology in a way that reached all of its user base. Silverlight may be an exception to this as IE would never remove support for this outside the EU, and I expect it allways to be the dominant browser.

16 Posted by sk on 7 January 2008 | Permalink

IMHO Opera will share the netscape's finish.

17 Posted by Kevin Weibell on 8 January 2008 | Permalink

I do have to admit that I did not think far enough. Thank you for publishing you article, your points are well argumented and they sound quite logic. This will be very interesting...

18 Posted by Maya on 9 January 2008 | Permalink

"In fact, the term "W3C" doesn't occur even once in the entire press release—or in the open letter, for that matter" <<< that is heavy. i would like to know what Tim Berners-Lee think or say about that. why opera think that they can "change everything" and "rule the world".

the thing with unbundle IE from windows is also mad, the netscape navigator has just give up and who leaves there? only a handfull.

19 Posted by Thorsten on 10 January 2008 | Permalink

I can imagine that Opera is asking the EC for unbundling IE from Windows. But it makes no sense to ask the EC to make a decision about webstandards. As David wrote, there must be something more that is not said at the moment.

20 Posted by Andrea on 13 January 2008 | Permalink

For me too it seems that handing the power of web standards into the hands of a single (and in this case also political) organisation involves a serious risks. So far standards were shaped by web experience of the users themselves, and that approach may change into a more market-oriented one when the standards are controlled by such bodies as EU commitees.

21 Posted by Mitch 74 on 21 January 2008 | Permalink

Your reasoning is sound. However, I wonder if, by any chance, Opera didn't do that just to point a finger at Microsoft.

In short, now that Microsoft is showing a teeny tiny bit of interest towards implementing W3C standards properly for the first time in 6 years, Opera, through this flimsy claim, shouts out loud to all communities that Microsoft can't start boasting about supporting standards if it does, and can't afford to stop supporting standards if it doesn't.

Even shorter: it's a cheap PR stunt, that can't go much further than that, and in which Opera can't lose.

With Microsoft losing the SaMBa battle recently, it was the best time to do it: before it would have looked ridiculous and not worth the attention, now it appears all over the press.