Friday, January 22, 2010

Your Opinion Please: Did Oracle Make Concessions to the EU?

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.


  1. Apologies to all, I had promised myself that since this is over now, I wouldn't comment or blog about it anymore, but your question is so insightful, I can't resist...

    A Finnish political TV satire recently explained something about the EU, and it has indeed made it much easier for myself to understand how Brussels works:

    Brussels is also the historical capital of Surrealism. The Surrealist artist Rene Magritte once painted a famous painting of an apple, on top of which he wrote: "this is not an apple". Another painting of a pipe claims, "this is not a pipe".

    The Surrealist tradition is still alive and well in Brussels, and it is what makes European politics tick. So honoring this tradition EU recently adopted a new constitution which is not a constitution. (Because a real constitution would never be able to pass all the national referenda.) With that, we also got a new President, who is not a real President. And a Foreign Minister who is not called a Foreign Minister. It is very weird, but to work in Brussels, you have to understand how it works.

    So the answer to your question is simple: "Oracle did not make concessions."

    This still doesn't resolve the bet though. Maybe you can just take your friend for dinner and say: "I'm not paying for this."

  2. Yes, Oracle made concessions. They agreed to a series of things they didn't have to do otherwise. I also believe Oracle will make good on these commitments. Their track record in the past with InnoDB has been exemplary.


  3. You are killing me, the comments currently show a tie.