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12/7/2009
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Oracle To Plead Sun Acquisition Case Before EC

The company will make its case with support from the likes of Eben Moglen of the Software Freedom Law Center, the Justice Department, and an Oracle users group.

Oracle will go before the European Commission on Thursday to argue that it should be permitted to continue with its $5.6 billion acquisition of Sun Microsystems.

As it does so, it will have support from Eben Moglen, Columbia University law professor and director of the Software Freedom Law Center, the legal advisor to Richard Stallman's Free Software Foundation.

And in another development, the European Commission has announced that Neelie Kroes' five-year term as commissioner supervising anti-trust issues will be up in January. She will be assigned at that point to another area of responsibility and the anti-trust office assigned to Joaquin Almunia, a former minister in the Spanish government during the rule of the Socialist party in the 1980s and 1990s. Almunia emphasized achieving "financial stability" in a recent bailout of banks and didn't press as hard as Kroes for tough sanctions on the banks, according to an online report by the Wall Street Journal Friday.

Kroes will still be around to influence the case. She will move up to VP of the EC, the commission announced Nov. 30. Oracle president Safra Catz earlier this year flew to Brussels to meet with Kroes but no accord emerged from the encounter.

The entry of Moglen into the case appears to strengthen Oracle's hand. In a Nov. 19 letter to the commission, he asserted that the issues raised by Oracle's prospective ownership of MySQL "do not warrant a conclusion that this transaction threatens significant anti-competitive consequences." Moglen acknowledged that he was asked to submit an opinion by Oracle's legal counsel but he wasn't being paid for the opinion. Oracle is a contributor to the Software Freedom Law Center. Another contributor is MySQL founder Michael "Monty" Widenius, who opposes the acquisition, Moglen told the Wall Street Journal.

Kroes had criticized the proposed deal as anti-competitive because it put the most widely used open source database system into the hands of the largest commercial database vendor. Oracle needed to find a way to ensure that ongoing development of MySQL was assured, even if it competed with Oracle's flagship product, she said.

"All scenarios likely to result from Oracle's acquisition of the [MySQL] copyrights, whatever Oracle's business intentions may be, are tolerable from the point of view of securing the freedom of the codebase," Moglen wrote.

An advisor to Widenius, Florian Mueller, took issue with Moglen and has submitted a response to Moglen's analysis of the case. "There are various technical and marketing-related things in his paper that are not right, such as discounting the critical role the brand plays here... He provides examples of open source business models pursued by other companies and those don't fit MySQL's specific situation," Mueller said to InformationWeek after submitting a 31-page rebuttal to the commission.

Owning copyrights is important, even with open source code, because it offers a line of defense if anyone challenges the code as infringing on someone else's patented or copyrighted code. Copies of MySQL would doubtlessly continue to circulate as open source code, even if Oracle bottled up development efforts and refused to continue them. But forming a company, such as MySQL AB, based on providing technical leadership and support, would be extremely difficult if the copyrights were owned by Oracle.

The U.S. Department of Justice and 59 U.S. Senators have issued statements in support of Oracle's acquisition. Sun Microsystems newsletter, Systems News, on Dec. 3 cited the Oracle Applications Users Group as urging the commission to approve the acquisition as well. President Raymond Payne said his group "believes Oracle consistently maintains and enhances the use of open standards and expects a continued commitment to these principles with regard to MySQL."

Oracle chairman Larry Ellison has complained that Sun loses another $100 million each month the deal doesn't go through.

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