decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

To read comments to this article, go here
Reasons I Believe the Community Should Support the Oracle-Sun Deal - Updated 3Xs
Wednesday, October 21 2009 @ 05:49 PM EDT

Monty Widenius has posted a press release, urging Oracle to sell MySQL to a third party, and there is a link to the materials that he and Florian Mueller, who is working with him, provided to the EU Commission, which appears to have influenced it to delay approval. I've been reading all I can find on this topic, and I'd like to tell you why I think the community should support the Oracle deal. The most important reason is that opponents are trashing the GPL [PDF] and calling it a source of "infection" in their FUD submission to the EU Commission.

From the last page:
The "copyleft/infection" principle of the GPL license represents a particular obstacle not only to revenue generation by the fork vendor but also to the overall adoption and market penetration of MySQL, MySQL forks and MySQL storage engines.
Now, that's from the version 1.1, dated October 11, that they posted today. But that isn't the only submission they have made. They suggested to the EU Commission in a questionnaire submitted by an August 13th deadline that the license on MySQL be changed to the Apache License. It was sent to me, along with others in the press, to educate us on the issues. Indeed, I found it very educational. Even in the submission made public today, you'll notice on page 21 they mention the BSD and the Apache licenses, after trashing the GPL:
Under such open source licenses as the Berkeley Software Distribution (BSD) license and the Apache license, proprietary derivatives are legal. The only obligation might be attribution.
In contrast, on page 20, they state that the GPL "effectively prevents this from being a commercial opportunity". So the bottom line to me is this: some folks want to make money from MySQL, either by allowing proprietary changes to it or by killing it off. I sincerely hope that the EU Commission looks a bit deeper than this submission's arguments. And I hope they notice that there is a Microsoft shadow in this picture. Let me now try to provide you with more insight by telling you the rest of what I've learned.

In Richard Stallman's letter, which mirrors very closely the arguments made in the August submission, leading me to suspect that he also received a copy of it, there is this:

Many other FLOSS software projects are expected to move to GPLv3, often automatically due to the common use of the "any later version" clause. Because the current MySQL license lacks that clause, it will remain GPLv2 only and it will not be possible to combine its code with the code of many GPLv3-covered projects in the future. Given that forking of the MySQL code base will be particularly dependent on FLOSS community contributions - more so than on in-company development - the lack of a more flexible license for MySQL will present considerable barriers to a new forked development path for MySQL.
"A more flexible license"? Like what? How about GPLv3, if you want to start tinkering with the license? And on what legal basis would anyone have authority to change the license, other than the copyright holder? Are you seriously suggesting that a regulatory body decide the license instead of the copyright owner? What a reckless idea.

Now, let's look at the Monty Says materials. From the press release:

Michael 'Monty' Widenius, the creator of open source database MySQL and founder of the namesake company later acquired by Sun, today suggested Oracle should resolve antitrust concerns over its US$7.4 billion acquisition of Sun by committing to sell MySQL to a suitable third party. The proposed takeover has not yet been consummated because it is being investigated in depth by the European Commission as well as competition authorities in several other jurisdictions.

Widenius, who posted this press release to his blog, believes the EU's antitrust regulator is "absolutely right to be concerned" and called on Oracle "to be constructive and commit to sell MySQL to a suitable third party, enabling an instant solution instead of letting Sun suffer much longer."...

In order to support the regulators' work on the case, Widenius' new company, Monty Program Ab, works closely with Florian Mueller, a MySQL and EU affairs expert....

In August, Mueller authored a position paper that Monty Program provided to the EC along with several other submissions. The latest version of the document was published today on the Internet.

It must, however, be pointed out that also on Monty's blog is his acceptance of the role as advisor to Microsoft's new Codeplex Foundation and on his blog he tells why he thinks it's swell. Microsoft opposes the Oracle-Sun deal, I might add. His reasons include:
  • Microsoft is already contributing quite a lot of Open Source code into many projects, including the Linux kernel.

  • Being a big public company with a lot of lawyers creates a lot of bureaucracy and it becomes very hard for a developer in the company to participate in an Open Source project because of the many different contributor agreements / licenses / project policies that exits. (I can easily relate to this after seeing how hard it was to do release something as Open Source even at Sun).
I suspect many other software companies have similar issues.

Personally, I believe it was in order to solve the above that Microsoft created the CodePlex Foundation. By having a single independent entity, verified and approved by the Microsoft lawyers, to which to donate code, the whole process of being involved with Open Source projects becomes so much easier for Microsoft developers. CodePlex allows Microsoft developers to more easily participate in Open Source projects, without a lot of red tape. There are many developers at Microsoft that are very pro Open Source, and would like to participate more than they are able to at present. Note that since CodePlex supports all relevant Open Source licenses, there is nothing hindering contributions to CodePlex to find its way into projects elsewhere in the FOSS ecosystem from there.

But why should Microsoft be trusted to have good intentions with the CodePlex Foundation? Simply, I believe that it's in Microsoft's direct interest that the CodePlex foundations becomes a success. Of course, we all know that Microsoft will primarily ensure that the Open Source projects in which they participate will run better on Windows and with Microsoft products. But this doesn't change the fact that this is a still a great thing for Open Source software.

Of course, people will continue to worry about Microsoft's intents and maybe that is understandable. In my experience, Microsoft as a big company seems to be a "company divided," with some segments appearing to understand and embrace Open Source, and others acting against these understandings. (In fact, this is another thing I can relate to from my personal history.) But now we have an opportunity to see Microsoft at their best as regards Open Source and Free Software, and even help them out in the effort. This is, indeed, an unusual opportunity.

Clearly developers and users of software, be it Open Source or proprietary, benefit from Microsoft's benevolence toward and understanding of the Open Source ecosystem.

Is he kidding? Naive? Misinformed? Or something else? Well, maybe developers like Monty will benefit from Microsoft's benevolence, but I doubt I ever will. And Microsoft contributed to the kernel because it had to. The GPL forced it to.

As for Florian, he's the guy who delayed adoption of Linux by Munich by pulling a PR stunt and then bragged about it, if you recall:

In the book, No Lobbyists As Such, published on Tuesday, Mueller tells the story of how anti-patent campaigners successfully fought against the software patent directive, which was eventually rejected by the European Parliament in July 2005.

Anti-patent campaigners initially struggled to attract much press attention around the software patent directive, so decided to take drastic action, according to Mueller.

"If the media hadn't reported much on what had happened so far with respect to software patents, then we had to make something happen that they would report on. We had to provoke a real crisis. Right away," he claims.

Mueller, along with a few others, came up with the idea of the Green Party drafting written questions to the mayor of Munich, to ask about software patents and their impact on the Munich's Linux migration project, known as LiMux.

Mueller helped the Green Party draft the questions, which were then put to the mayor of Munich at the end of July. A few days later, Mueller was made aware of an email sent to the LiMux project mailing list by Wilhelm Hoegner, the head of the data processing office at the City of Munich. This email said that due to the questions tabled by the Green party the project has been put on ice.

Mueller publicised this email, which resulted in a lot of press attention, including coverage in mainstream publications, such as Der Spiegel, a German weekly news magazine.

Various members of the free and open source community who were aware of this stunt reportedly criticised Mueller, saying that he had endangered a major implementation of Linux and had raised concerns among customers that using open source software was risky.

But Mueller had no regrets about his actions. "I understood the concerns that others had, but to me it was obvious that open source would suffer more from the legalisation of software patents than from the LiMux fallout. It seemed better to draw attention to the issue while it could still be fixed than to remain silent and face the consequences later," he states in the book.

The end justifies the means kind of guy? I don't trust anyone who would pull a stunt like that. I hope the EU Commission knows that neither Monty nor Florian represents the community as a whole. They definitely don't represent me.

And I have a question for Monty and Florian: who do you have in mind to buy MySQL? Anyone? Nobody? Patent trolls? Who? Microsoft? This latest tips me to believing that, rms notwithstanding, Carlo Piana is right: the community should support Oracle's bid. He is now Oracle's co-counsel and explains his reasons on that page. I urge you to read it. In fact, thanks to the CC license, I can put a relevant chunk here:

In my previous blog entry I have briefly discussed that I intended to take actions to help the Sun/Oracle merger to be cleared by the EC Antitrust authorities. Indeed I have offered my dispassionate help as a Free Software and digital liberties advocate to the legal team assisting Oracle. They have gladly accepted my offer to help. It was discussed if I could also take the position of co-counsel to Oracle in the procedure, and so was decided.

This could be perhaps a surprise to casual readers. I take the opportunity to clarify what my motives are. It could be regarded as odd that I feel like I have to justify why I am accepting instructions that some of my colleagues would simply kill for. The point is that – unlike many – I am not a hired gun for whomever can afford to pay me. And I am quite fond of saying that I am in a position to refuse cases that are against my beliefs as a Free Software advocate.

Competition problems? Look at the alternatives!

Sun is a company that has lately been known for its huge contributions to Free Software. Indeed one could go as far as saying that amongst the big corporations Sun has been the most friendly to the community in terms of code released under Free Software licenses and general support. After cashing in perhaps too quickly a settlement on the same antitrust case against Microsoft that it had initiated in the first place (the one I have been deeply involved during the last five years), Sun has gained again good recognition and trust from the Community.

Sun has four important projects to Free Software and to a healthier and competitive environment in the software market. I am speaking about, Java, Open Solaris, MySQL.

Sun is also financially bleeding, and its share price has been considerably dropping over the years. This, combined with its huge and easily cashable assets, made it a too obvious target for a takeover. The candidate for it are quite limited. Friendly takeovers could be made by IBM – who reportedly was involved in acquisition talks – and Oracle. Hostile takeovers could be made by Microsoft (subject to huge competition problems in most of the concerned markets) and by investment funds. The latter option is the one that frightens me most.

Sun has a huge patent portfolio too. Some of its patents have been pledged for instance to OASIS not to be asserted against any implementation of ODF. An investment fund would have no incentive to keep the company as a whole and, absent an overall industrial plan, the easiest cash-in move would be that of arranging an auction, one similar to that where luckily (the uninvited) OIN was able to recover the patents (dumped off by Microsoft) from the highest bidder. In other words, Sun or parts of it would become a litigation company, a pain similar to what SCO has been lately, but multiplied n-times.

We don't need to offer patent trolls any patents that are deeply embedded in core Free Software projects. We should remove the software patents from the equation, and we would be better off, but the threat is out there and ignoring it would do no good. Patent trolls, or technology investment companies – as they sometimes define themselves – could simply act on their own accord with the aim to force market players to pay through the nose or – much, much worse – could be a useful instrument to seed more FUD and to raise hurdles to the success of Free Software projects. To the best of my knowledge, Oracle is not asserting its patents against Free Software projects. But others could.

I think there is more than one reason to avoid all of that!

What is the sticking point in the investigation?

It's MySQL.

The Swedish database company has been acquired by Sun last year for a sum short of one billion euro. Not bad for a company whose best yearly turnover hardly reaches 50 million euros. MySQL and Oracle are databases. This is more or less where the similarity ends. Their products are significantly dissimilar from each other because they are at the opposite ends of the market. I happened to speak with people at Ingres recently, and they confirmed that, notwithstanding that they are also Free Software vendors with a business model similar to that of MySQL, they regard themelves as competing with Oracle and PostgreSQL, rather than with MySQL. but I don't want to argue that here. Complainants have sought to present a different view. The Commission decided that this point shall be further investigated and that's it.

MySQL is a very successful project in terms of deployment. I myself have no less than three MySQL instances in place and you are reading this blog from a LAMP installation – where "M" stands for "MySQL". It is very important that the project remains Free Software (it is licensed under a slightly modified GNU GPL V.2 on a dual licensing scheme) and a lively one. Yet I fail to see how a disbanded and broken-up Sun would do a better job at it than a company like Oracle.

Here we see the force and how dramatically Free Software departs from the proprietary setting. A product is very likely to survive despite the fortunes – or even against the will – of its founding company, because everybody is invited to take over or to fork. Forks are less frequent than one can think only because the simple threat of forking works in the direction of finding consensus among leading developers. Linux has never been forked. Samba has been forked (into Samba-TNG), but there is a constructive exchange between the two projects. Mambo has been forked into Joomla, and Joomla seems to be more successful than Mambo. More or less the same happened to Xfree86. When the developers changed the licensing, a new project suddenly was born – – and in six months it has swept away Xfree86 from the entirety of the GNU/Linux distributions out there.

Nothing substantially prevents the success of forks, apart from the success of the original product. We could say that the licensing reduces the barriers to entry in the market for that individual product, allowing third parties not only to take it as it is distributed by the project leaders, but to depart from it and make it – or parts of it – even an entirely different project. This is a terrific democracy-enforcer. The lack of democracy issue in the MySQL project has been latent for quite a long time, this is why a fork has already happened, into MariaDB, and if things get worse in the core development team of MySQL, it is easy to predict that the fork will have better chances to replace it – as it is drop-in replacement to the forked project. Nature abhors a vacuum.

If Oracle were hypothetically to bend the project away from competition in the high end or simply make it a stale project, it is clear to me that the declining fortunes of the original work would leave room (and disgruntled developers) to further the success of the fork(s).

Another misconception is that a Free Software project cannot succeed without a strong corporation as its proponent. All the evidence is to the opposite. lives out a very lively and diverse community: while it has roots deep into Sun, many corporate users (including IBM) heavily contribute to its development. Linux prospers thanks to a wide community where no single company is relevant, leave alone dominant. Gnome and KDE the same. Again this is the strength of Free Software, that it permits many different development models, including the "bazaar".

Dual license is a moot problem

If I understand the point correctly, the objections on what I have just said is that – because MySQL is a dual-licensed product – a fork only relying on the GNU GPL licensing of the code would miss the revenues and investments coming from the proprietary licensing, which is out of reach of the fork.

This is absolutely frivolous, and it reflects a misconception of how the forces in the Free Software space work. It is not that a successful dual licensing enables a successful Free Software project, it is a successful Free Software project that permits to a dual licensing strategy to survive. The idea behind a dual licensing scheme is twofold. First you spread around a software application that becomes widely adopted, distributed, and where developers hurry up to develop for. And you offer it under the most restrictive copyleft license. Second, you offer a separate deal to all those who want to use the code but they are not willing to embed it into their products because they would be derivatives of the GPL'ed product, thus GPL themselves.

While dual licensing is often portrayed as the only successful business model for Free Software, this assertion is consistently disproved. And interestingly, this assertion comes from proprietary-intense (or proprietary-only) software makers. Its underlying assumption is that one can only make money out of selling licenses. So if somebody makes money out of Free Software, they must be offering proprietary licenses too. This misunderstanding results in frequent incorrect statements, such as – this is absolutely the most widespread myth – that Red Hat sells "commercial licenses" of its operating system.

This is the problem with Free Software: it changes any common-sense reference, it requires a change in the mindset. 2+2 = +∞ !

Dual licensing is hardly a viable model per se. MySQL Ab's revenues are pitiful in comparison with the market adoption of its project, and a considerable part of its turnover comes from other sources than licensing. MySQL is so good that it can be used via a lot of interoperability tools and via network without suffering big loss of performances, therefore the incentives to use a proprietary version come from the licensing issues of the very limited cases when a derivative product is to be distributed on proprietary terms. A proprietary standalone version of MySQL has no appeal compared to the Free Software licensed one. But in general, I know of very few cases of companies keeping a healthy dual licensed scheme (the only one I know for sure is Funambol). Dual licensing is very complicated to maintain, it requires copyright assignment, and this assignment is very hard to obtain from developers (this is at least my experience in drafting assignment agreements for clients).

Dual licensing is irrelevant in the success of the variety of Free Software business propositions, its fortunes will decline even more, and it can be seen at best as an interim setting to legal migrations from proprietary to Free Software.

Guess who's complaining

Oddly enough, the main complainants are two companies whose interest collide against the persistence of a competitive pressure coming from Sun. This is entirely appropriate, of course. Only, one could question how true the grounds are to complain of at least one of them, the one which competes directly with MySQL. It bugs me that they now portray themselves as advocates for the success of MySQL. They are quite likely afraid that the Sun acquisition will reinvigorate MySQL to compete with them for instance in the SME's space, which is not Oracle’s strength. Another reason for them to fight against the Oracle/Sun merger is the resulting increased competitive pressure in the high-end part of the IT market. Especially that of large database installations for the cloud, a sector where it is no mystery Microsoft is trying to find a new expansion area, and which could be a very good sector where Oracle + Sun Solaris + Java could set the goalpost, while establishing a platform-diversity, under-the-hood interoperable ecosystem, with Oracle and Google and IBM on the upper hand, as well as benefiting the overall industry with huge Free Software spillovers.

The bitter end

Persistent delay as to the final clearance is sucking the breath from Sun, and rumors of people leaving are spreading. This cannot last. Continuing uncertainty damages Sun's developement teams. I have the pleasure to know a number of executives in Sun and – if perhaps they are not delighted by the prospect acquisition – they realize that it must be passed through as soon as possible, or the company will die. And with it, some of the good development teams that have considerably contributed to the success of Free Software.

It is time to take sides, and I know perfectly well where to stand.

Me too. I stand with Carlo and Oracle on this one. Because something smells very, very wrong in this picture.

Update: I see Matt Asay has jumped on board the antiGPL FUD too. Folks, there is no difference between Sun owning MySQL and Oracle, as far as forking rights. Duh. What is this? An elaborate Microsoft production by proxy?

Update 2: Kirk Wylie has some interesting information on Monty and Oracle:

First of all, let's get the obvious out of the way: Oracle bought BerkeleyDB, and continued to enhance it; Oracle bought InnoDB, and continued to enhance it. At no point did they crush them to drive Oracle database revenues, or change the licenses, or stop forward momentum. So when you look at the actual track record of the company, they're in the clear.

But they might do, because they're an evil, scary corporation that MySQL turned down once before (from the Stallman piece):

Oracle made an earlier effort to buy MySQL in 2006, but the management rejected Oracle's offer, in part because Oracle would not disclose its plan for MySQL, and some members of the MySQL management team were concerned that Oracle was only acquiring MySQL to curb its advances in the marketplace.
I know a number of people involved with MySQL when it was an independent organization. While there were people who worried about that fact, senior management wasn't. More importantly, Monty was willing to sell MySQL to Oracle in 2006 for the right price. The use of the words "in part" there are telling, because the primary consideration that MySQL's senior management had wasn't some happy-clappy love for the Libre Software Movement, it was money.

I'm sorry, but I fail to see what's changed in between 2006 and 2009 except that Monty is a whole heck of a lot richer. Why in 2005 and 2006 were offers ultimately rejected from Oracle based primarily on money, but now Oracle is an evil corporation that can't be trusted with MySQL? Larry's the same guy he was then, Oracle has bought BEA but they don't compete in any way with MySQL, it's the same company. Why would Monty trust Oracle back in 2006 but not now?

Get the picture? He makes a list of who would have the money to buy MySQL. Guess who is number one on the list? Microsoft.

Update 3: For completeness, here is former MySQL CEO Mεrten Mickos' letter to the EU Commission, in support of Oracle. By all means read the entire letter, but note in particular the reasons that motivated him to write:

The impetus to write this letter comes from my concern with the talented teams of the MySQL business unit and of Sun Microsystems in general. I am also troubled by certain factual distortions about a subject matter that I am intimately familiar with: MySQL and its business model. Open-source business models are complicated and quite different, and it took many years to fully understand and shape the one of MySQL....

In this discussion, the term "MySQL" refers to two things. On the one hand, there is the huge phenomenon MySQL--an estimated 12 million active installations under a free and open-source software license, millions, if not tens of millions, of skilled users and developers, and tens of thousands of corporations who use MySQL one way or the other.

On the other hand, there is the business of MySQL, which is growing rapidly, thus rewarding the owners of the assets (currently Sun Microsystems).

Those two meanings of the term "MySQL" stand in a close mutually beneficial interaction with each other. But most importantly, this interaction is voluntary and cannot be directly controlled by the vendor.

What I mean is that the vast and free installed base of MySQL is using it of their own free choice, unencumbered by the vendor and under no obligation or restraint. That is the nature of open source. And conversely, the MySQL business is supporting the free installed base of MySQL (by improving the product) voluntarily and in the hope of deriving benefit from the installed base.

This is the paradox of an open-source business, and it took me a long time to truly understand how powerful a force it is. It is unlike any traditional business. The key point is that both the users and the vendors of open source are engaged in a powerful free-market dynamic that cannot be contained by any single entity.

That would include Oracle. Incidentally, Groklaw uses MySQL, the Free version, so I am very, very interested in what happens to it.

  View Printable Version

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )