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Oracle-Sun: Statements and observations
Matthew Aslett, November 30, 2009 @ 10:36 am ETI’ve been trying to dig a bit deeper into the European Commission’s investigation of Oracle’s proposed acquisition of Sun Microsystems, to look beyond the received wisdom about the EC’s concerns about the deal.
We know they revolve around the open source MySQL database, the European Commission has said that much. But the Statement of Objections weighs in at 155 pages, and even those that have read it admit to being confused by it. Meanwhile some of the most vocal parties in the public debate have vested interests in encouraging opinions for or against the deal.
Without knowing precisely what the European Commission wants to achieve it is impossible to come to any conclusions about the investigation. However, here are a few statements and observations:
- Anyone who claims to completely understand the European Competition Commission’s concerns with regards to Oracle-Sun either works for the European Competition Commission or is lying.
- The EC is evidently concerned about the ongoing availability of the GPL-licensed MySQL code.
- However, there are also concerns about the contracts related to non-GPL licenses used to make the code available to software vendors for use with proprietary software.
- The public debate about the Oracle-Sun deal has focused disproportionately on the impact of the deal on forks of the open source MySQL code base.
- The impact of the proposed deal on competition is just as likely to revolve around the proprietary contracts.
- Statements from MontyWidenius/Florian Mueller objecting to the proposed merger and the European Commission’s Statement of Objections against the merger are *not* the same thing.
- The Widenius/Mueller case against Oracle owning Sun/MySQL is entirely dependent on the theory that Oracle will not invest in the ongoing development of MySQL, which is something it has publicly committed to doing.
- There are forces at work that are not immediately obvious. You can probably guess what they are though.
A formal report covering the latest twists and turns in the proposed acquisition is available to 451 Group clients.
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Is the 155 page Statement of Objections available to the public?
Unfortunately not.
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“But the Statement of Objections weighs in at 155 pages, and even those that have read it admit to being confused by it.”
Really? Who in particular is confused? Sadly, I can’t comment on the content as long as the SO isn’t public, but “confusing” is not something I would use to describe it.
Of course, the amount of confusion in this case has surprised me - I’m amazed at how many *legal experts* have a hard time understanding that GPLv2 and GPLv3 are not compatible, just to take a trivial and non-contentious example.
My impression on reading it that as an analysis of the database market it beats any analyst report (on any topic) that I’ve ver seen.
Sorry, forgot you’re an analyst too
Well, I was thinking of Gartner etc… But as for 451, you wouldn’t have the same resources to put into creating a report either as the Commission has.
“Statements from MontyWidenius/Florian Mueller objecting to the proposed merger and the European Commission’s Statement of Objections against the merger are *not* the same thing.”
Yes, and it makes me smile when I think about the fact that you need to point this out to people
You could further add that the Commission’s work isn’t dependent on what we have said or didn’t say.
Henrik,
Why should we accept your opinion on the contents of this report?
How can we judge the dependency of the contents of the report?
It has not been shared with most of us.
Hi Henrik,
The confusing thing, I am told, is trying to work out what the EC would like Oracle to do to appease its concerns. I know that is very straightforward to you but, as you note, the EC isn’t dependent on what you say
Ah, ok. Yes, if one tries to read the SO that way, then it is bound to be confusing, because it is not a question an SO is supposed to answer! (I’m trying to put the previous sentence in general terms, without commenting on what this particular SO may or may not say.)
I’m not an expert on European law, so don’t quote me in an analyst report or anything… But *I’ve been told* that the formal process is pretty simple. The Commission investigates whether a merger could have harmful effects on competition in the market or not. Then they either approve the merger or not, if they don’t, they have to explain (or justify/prove) why, and that is what the SO does.
In practice of course it is not all or nothing. So Oracle has been told long ago - and the SO of course makes it clear too - that out of all of Sun’s products, it is only MySQL that presents anti-trusts problems. The normal thing to do then is for the acquirer to spin off such a business, after which there are no grounds for an SO and the merger can proceed.
But technically such an initiative needs to come from Oracle, formally the Commission doesn’t say anything else than yes or no. In practice Oracle and the EU have had meetings to discuss “what the EC would like Oracle to do” at least since early October. It would of course be silly if Oracle had to guess what the problem is, without getting any hints. So the formal SO is more a result of those talks not succeeding, rather than in itself telling Oracle what it should already have done by now. Again, the SO just presents the evidence why the Commission has to object to the merger, not what Oracle should or shouldn’t do.
I agree with you Henrik. I can’t believe that Eben Moglen <a href=”https://news.fidelity.com/news/news.jhtml?cat=Corp.MNA&articleid=200912031634RTRSNEWSCOMBINED_N03103764_1&IMG=N”doesn’t understand the GPL.
I know this is sarcasm from your side, but yes, it is surreal to read it, I’m not kidding. Stallman advices Moglen on legal issues. But let’s give Eben the benefit of the doubt. He is a lawyer and is working for Oracle here. There is nothing wrong about that, it is a lawyer’s job, and both sides in a case have the right to get advice from lawyers. He is arguing Oracle’s case best he can, maybe we shouldn’t assume more than that from his text.
But did you notice the good news: Apparently Oracle is at liberty to discuss the SO in public and at least partially even quote it. Maybe they could even publish all of it? It is possible since the only reason it is confidential is to protect Oracle and Sun, there is nothing for EU itself that is confidential. So now you know who you should ask to publish the SO!
Your statement that Moglen is “working for Oracle here” is at best misleading and at worst (taken in consideration alongside Florian Mueller’s statement about Moglen) a slur on his integrity.
The SFLC has stated the the opinion was provided “pro bono publico and without fee, at the request of Oracle’s counsel”. That is not the same thing as “arguing Oracle’s case best he can”
The statement from Moglen and the SFLC is not, therefore, a statement from Oracle. Clearly Moglen has discussed the SO and partially quoted it, but Oracle has not.
[...] Oracle-Sun: Statements and observations We know they revolve around the open source MySQL database, the European Commission has said that much. But the Statement of Objections weighs in at 155 pages, and even those that have read it admit to being confused by it. Meanwhile some of the most vocal parties in the public debate have vested interests in encouraging opinions for or against the deal. [...]
[...] previously noted that the Widenius/Mueller case against Oracle owning Sun/MySQL is entirely dependent on the theory [...]
[...] What does this mean besides a few more months of uncertainty for people at Sun/MySQL? Do they compete for customers? Or do they compete based on technology? We can only guess as the report is not public. I am sure it is a great document, at least that is what I have been told. [...]