EC Has ‘Incorrect’ Facts Concerning Oracle-Sun Case

A legal expert on open source software has lent his support to the planned merger of Oracle Corp and Sun Microsystems in a letter to the European Commission. But his views are not proving popular in some circles.

Eben Moglen is a professor of law and legal history at Columbia University, and is the founder and Chairman of Software Freedom Law Center.

In a letter to the Commission, Moglen has said that European antitrust regulators are delaying the $7.4 billion (£4.5bn) acquisition of Sun because their analysis of the deal is partly flawed.

EU regulators are concerned that the deal includes the acquisition of Sun’s MySQL database, which they feel could hurt competition as Oracle is already the world’s largest database provider with its own database software.

“The issues raised (by the commission) concerning the GPLv2 status of the MySQL code base do not warrant a conclusion that this transaction threatens significant anti-competitive consequences,” Moglen told EU regulators in a letter dated 19 November.

Moglen says in the letter that the GPL was designed to be effective no matter who owns the copyrights. The letter effectively dismisses the analysis of the GPL, carried out by Florian Mueller and Monty Widenius. The European Commission has apparently used this analysis as the basis for its opposition to the deal.

But it seems that Moglen’s criticism of this analysis has struck a nerve with the authors, and Florian Mueller’s reply was posted on the Groklaw legal website.

“Compared to Richard Stallman he’s very unimportant in a GPL context because Richard really founded the movement and developed the concept, Richard is the giant on whose shoulders a lot of people stand and the best ones of those admit that this is the case, while some midgets try to deny that fact,” wrote Mueller.

“I met Eben Moglen in 2004 to talk about a legislative process in the EU on software patents and back then it was already clear that he had a GPL-centric not market-oriented agenda,” Mueller wrote. “I disagreed with his approach back then (a year later I became the European Campaigner of the Year with my approach) and so I do now. I also got the impression at the time that he was primarily interested in obtaining funding (at the time from MySQL, on whose behalf I met with him) for some initiatives of his (at the time “patent busting”, a pretty pointless approach that never got anywhere but some lawyers made some money with it).”

“He is now probably just afraid of a possible license change away from the GPL to another open source license entering the remedies discussion, something that I don’t propose anyway because a divestiture would be the only approach that entirely eliminates the competition concerns identified,” Mueller added.

“I am wholeheartedly convinced that the Commission has perfectly understood all GPL-related issues and the fact of the matter is that if Oracle buys MySQL on the current basis, it will get as much control over an open source project as money can possibly buy. That’s why there are serious competition issues,” he concluded.

The Commission is due to make a decision on whether to sanction Oracle’s acquisition of Sun on 27 January, 2010.