By now you are probably aware that the European Commission has decided to launch an extended investigation into Oracle’s acquisition of Sun based on concerns over MySQL.

The new has prompted a lot of criticism of the EC, much of it suggesting that the delay will do considerable harm to Sun (and therefore Oracle). This argument is valid – Sun’s already declining revenue has been in freefall since the deal was announced and one wonders how far it will fall in another 90 days of stasis.

Other criticism, (such as this from Matt Asay) focuses on the suggestion that the delay will do little to help MySQL or its users, and that the EC fails to understand open source.

This also has some validity. The EC talks about “Oracle’s incentive to further develop MySQL as an open source database” but as Matt points out “even Oracle can’t put the open-source genie back in the bottle once it has been released, as MySQL has, under the GNU General Public License.”

This is true. although I would argue, that Oracle’s potential control over MySQL is not about licensing, but copyright. The FT states that Oracle “doesn’t control the IP, since the software is available under the GPL”. That is not entirely true. The existing code will always be under the GPL but as the copyright for that code would be fully-owned by Oracle it is under no obligation to release future developments under the GPL.

I do not expect that to happen, but copyright ownership does not just impact the ability to license code, it also provides control over potential commercial uses of that code. This is where it could be argued that the EC could be right to have anti-competitive concerns over Oracle’s future ownership of MySQL (even if it doesn’t understand why, or hasn’t articulated that it does).

Criticism of the EC has also suggested that it is disproportionately focusing on a products with a tiny market share. There are various suggestions as to quite how small MySQL’s market share is, with the WSJ citing 0.2%, but also 1.5%, AHN 0.04%, the FT “around half a percentage point”.

What all these reports overlook is that MySQL’s influence is much greater than its market share, not only in terms of more widespread unpaid usage, but also in terms of the ecosystem of vendors that are building products based on MySQL to tap into its widespread adoption.

Examples include Kickfire, Infobright and Calpont in data warehousing, ScaleDB in shared-disk clustering, Tokutek in Web-application querying, and Schooner Information Technology and Virident Systems in caching appliances.

All of these products enable mySQL to better compete with Oracle’s database products, and many of these have commercial relationships with Sun that enable them to use MySQL in proprietary products (while Infobright is itself open source, it also has a relationship with Sun).

Calpont also plans to offer an open source data warehouse based on MySQL but has put is plans on hold while it waits to see what Oracle will do with the MySQL database. Calpont’s concern is that Oracle will choose not to promote commercial relationships that use MySQL to compete more directly with Oracle’s Database business.

The MariaDB fork provides a potential alternative for these vendors, but as we previously discussed on this blog there are questions as to whether closed-source MySQL storage engines are compatible with MariaDB.

As noted in that post, ScaleDB’s Mike Hogan has argued that it can be done via an open source intermediary layer (and given that ScaleDB does not have a commercial arrangement with Sun, the company will be hoping that its analysis is correct), but MariaDB and MySQL creator Monty Widenius is not convinced: “This can only be done by buying MySQL licenses from Sun for each copy of MariaDB that is distributed.”

If Monty is correct then Oracle’s impending ownership of MySQL could theoretically have a significant impact on the emerging market for commercial products based on MySQL and their ability to compete with the Oracle Database.

As we noted in a report on the wider implications of Oracle’s impending ownership of MySQL (451 subscribers only) “For the commercial arrangements between these vendors and Oracle to survive, they will have to show that they can provide value to MySQL without impacting Oracle.”

Is that anti-competitive? Perhaps. I would argue that it certainly warrants further investigation.

UPDATE
I’ve just been asked a question on this that has highlighted something else I was thinking about this morning: BusinessWeek reports that “Oracle could spin off or sell the business to satisfy regulators if necessary”.

I do not think that Oracle would be prepared to do that – we previously argued that MySQL represents a more significant business opportunity for Oracle alive than dead – nor do I think it would need to do so if the issue was Oracle’s relationship with the ecosystem of commercial vendors using MySQL to compete with the Oracle Database.

Oracle could get around that without needing to sell MySQL by contributing the code and the copyright to an independent foundation, which would also have the side benefit of increasing developer involvement in the project following the departure of many MySQL developers from Sun. Oracle would of course retain the support and service expertise.

Just a thought.
UPDATE

2ND UPDATE
Monty Program AB, which has been bending the ears of regulators about Oracle-Sun as well as creating MariaDB, suggests to Ars Technica that copyright and dual licensing is a significant concern.

“Monty Program Ab Chief Community and Communications Officer Kurt von Finck… points out that MySQL’s licensing model gives the copyright holder a higher level of control than the rest of the community and the exclusive ability to provide certain kinds of products and services that third-party vendors cannot. This means that Oracle’s acquisition of Sun would still have significant implications for competition in the database market.”

Of course this comment comes from the company set up by the creator of MySQL, Monty Widenius, who no doubt trousered a significant share of $1bn based on MySQL AB’s successful exploitation of the dual licensing model and copyright ownership.

As Kirk Wylie has said: “Look At The Balls On That Guy”!
2ND UPDATE