Back when the EU started the investigation of the Oracle-Sun deal, I made a bet. The bet hinged on whether Oracle would make concessions to get the EU’s approval. Please review the arguments, pro and con, and help us settle the bet.
Issue #1: The 10-Point Commitment to Customers Developers & Users of MySQL:
PRO CONCESSIONS: After meeting with the EU, Oracle issues this list of 10 concessions. Oracle prefaces the 10 points with the line: “In order further to reassure the Commission, Oracle hereby publicly commits to the following:” It then goes on to make certain commitments including #2 the non-assertion policy where is says “Oracle will change Sun’s current policy” and commit not to assert their copyright against storage engine vendors for 5 years. And continues to say: “Oracle shall reproduce this commitment in contractual commitments to storage vendors who at present have a commercial license with Sun.” Why would ANY company give up their legal rights without pressure. Clearly they made a concession. The press release includes other commitments and then closes with “The geographic scope of these commitments shall be worldwide and these commitments shall continue until the fifth anniversary of the closing of the transaction.”
CON CONCESSIONS: This is a press release and nothing more. There is no binding legal agreement. At the bottom of this simple press release it says: “When used in this press release, the words “shall,” “plans,” “commits” and “will” and other similar expressions and any other statements that are not historical facts are intended to identify those assertions as forward-looking statements. Any such statement is subject to a number of potential risks and uncertainties…”
Issue #2: Oracle’s Press Release About EU Approval
CON CONCESSIONS: It is very clear in the title “European Commission Unconditionally Approves Oracle’s Acquisition of Sun” It is unconditional, case closed, no conditions.
PRO CONCESSIONS: Of course Oracle will say unconditional. This is tantamount to person #1 suing person #2 for $10M. Instead of taking it to court, they settle where neither person admits or denies guilt, but person #2 pays person #1 $5M. Just because it settled out of court, and they “agree” that nobody is guilty, it is pretty clear that if there was no guilt, person #2 wouldn’t have paid $5M. This face-saving way that Oracle presents the approval to the world is meaningless.
Issue #3: The EU’s Press Release About Approval of the Deal
PRO CONCESSIONS: “The Commission also took into account Oracle's public announcement of 14 December 2009 of a series of pledges to customers, users and developers of MySQL concerning issues such as the continued release of future versions of MySQL under the GPL (General Public License) open source license. Oracle has already taken action to implement some of its pledges by making binding offers to third parties who currently have a licensing contract for MySQL with Sun to amend contracts.” The EU took into account “pledges” by Oracle and the fact that Oracle is already changing binding agreements. These steps were clearly a concession and the binding legal agreements that have been fixed are legal and binding proof of these concessions.
CON CONCESSIONS: Oracle did NOT enter into any binding agreement with the EU, therefore they made no concessions to get the deal done. Any flimsy pledges in a press release are not enforceable and therefore, no concessions were made. The fact that they changed individual agreements does not mean that they made a concession to the EU at all.
We have a lunch bet riding on the argument. Did Oracle make concessions under pressure from the EU in order to close the deal to acquire Sun? Please vote in the comments section, leading with YES (Oracle made concessions) or NO (Oracle did not make concessions). Feel free to elaborate on why ;-).
Please vote on the facts, not on your opinion about whether it was sufficient or not ;-)
Thank you for helping us settle this bet.