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The Software Freedom Law Center Submits an Opinion on the Oracle/Sun Merger to the EC

Urges Regulators to Have Faith in GNU GPL

December 4, 2009

New York, NY (12/03/09): The Software Freedom Law Center (SFLC) submitted an independent opinion to European Union regulators to consider in the ongoing merger approval investigation of Oracle's acquisition of Sun Microsystems.

Eben Moglen, the founder and executive director of the SFLC and a leading expert in free software law, sent a letter to the commission on November 19 responding to portions of the Commission's Statement of Objections, issued on November 9, concerning the GNU General Public License Version 2 (GPLv2) and MySQL.

At Issue

The Commission's Statement of Objections argues that MySQL currently imposes "a competitive constraint" on Oracle's pricing and marketing of its flagship Oracle 11 database product. The Committee's statement views the GPLv2 as an inadequate protection of the rights of non-Oracle parties to freely improve and redistribute MySQL.

Moglen believes the Commission has underestimated the robustness the GPL has consistently demonstrated over the past 18 years.

"The GPL was designed specifically to ensure the permanent freedom of software, and the ability of everyone to improve and share their improvements to the program, no matter who acquires the copyrights to the code," Moglen said of the argument he presented to the Commission. "The whole point of GPL as a copyright license is to deal with every contingency that could result in hobbling or destroying the freedom of code shared under it. The drafters of GPL versions 2 and 3 considered scenarios very similar to the ones that the Commission is concerned about now. The design of the license, and the experience we have had using it, show that it can be counted upon to operate as intended in situations like this one."

Historical Perspective

Programs released under the GPL, including Linux, Samba, and the GNU Compiler Collection, have continually proven to be resistant to anti-competitive conduct in the marketplace. "GPL’d programs competing effectively against offerings of the richest and most powerful monopoly in the history of information technology have resisted the efforts of the monopolist to find a chink in its armor," Moglen writes.

Moglen and the SFLC issued their opinion, pro bono publico and without fee, at the request of Oracle's counsel; it has been incorporated in Oracle's response to the Commission's Statement of Objections. A hearing on the Objections, and Oracle's response, is scheduled to occur in Brussels on December 10.

Oracle is a donor to the Software Freedom Law Center, which has also received donations from other parties with diverse views on the merger, and on the future of MySQL. For disclosure of all relevant details, please consult the text of the opinion.

The PDF is available here.

For further inquiries, please contact Lysandra Ohrstrom, SFLC Communications Director, at (212) 461-1915 or by e-mail at lohrstrom@softwarefreedom.org.

UPDATE: Moglen sent a letter to the European Commission on Dec 4, asking to be heard as an independent party at next week's hearing. A copy of the request is available here.

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