MySQL Journal on Ulitzer

From the thin reports out of Brussels about the closed-door hearing at the European Commission Thursday, it appears that Oracle - which is supposed to be trying to convince the regulator to let it swallow Sun whole MySQL and all - has gone on the offensive and accused the EC of twisting the results of its investigation to suit its MySQL bias by misrepresenting, cherry-picking or ignoring what users said about the market and the competitive scene.

The Financial Times was shown Oracle's days-old written rebuttal to the EC's statement of objections where the paper says Oracle claims "many if not most" of the two dozen customers cited in the SO "do not support the Commission's theory of harm."

Oracle also reportedly claims that the pro-merger opinions of customers such as General Electric, Fujitsu Siemens and the NASDAQ were simply ignored.

Oracle's contention somewhat mirrors a charge made by Intel, the subject of the largest single fine in EC history - $1.5 billion - that the EC ignored or failed to pursue exculpatory evidence. And Europe's ombudsman, the EC's only overseer, slapped the agency up side the head this summer for failing to take notes when a senior Dell executive testified that Dell buying chips from Intel rather than the AMD was a reflection on AMD's poor product line, not Dell being bought off by Intel's pricing perks.

The Wall Street Journal, which saw Oracle's filing too, also said that Oracle charged the EC with distorting the views of major database users and "selectively" quoting from the surveys it sent them seeking their opinion of Oracle's proposed purchase of Sun and its open source MySQL database property.

According to the Journal, Oracle says that the responses of at least two customers were used as evidence against the deal although the companies wrote letters to the EC in support of it. The Deutsche Boerse Group, another user, apparently told the EC to its face that the agency was manipulating its response.

It's Oracle's contention that the "great majority of customers" do not oppose the deal and besides bringing eight big users to the hearing to testify Thursday and Friday, the Journal says more than 200 are writing letters.

Since the survey findings the EC used to support its SO are a big secret, it's impossible to substantiate the picture Oracle paints.

However, in Oracle's corner at the hearing are reportedly Ericsson of Sweden, Vodafone of Great Britain, the British Atomic Weapons Agency; the British National Health Service; Sabre Holdings of the United States; Banco Bilbao Vizcaya Argentaria of Spain and Carnegie Mellon University.

The U.S. Department of Justice, which cleared the Oracle-Sun merger this summer and publicly snapped - in diplomatic language of course - at the European Commission when it objected, has sent an observer.

Presumably the DOJ is there as a reminder that if the EC keeps going in the direction it's been going - and it's more than likely to - it might provoke an international incident like it nearly did when it blocked the GE-Honeywell merger a few years back.

The EC has apparently been persuaded - although it probably didn't take much given its open source leanings and desire to unseat the American software goliath - that MySQL is an important competitive force.

This of course is the view of MySQL creator Monty Widenius, who after a few unhappy months inside the Sun bureaucracy, returned to Europe to try to hit the jackpot again with the MariaDB fork of MySQL, an adventure paid for by his share of the billion dollars Sun - in a moment of insanity - spent buying MySQL, worth only $25 million in revenues according to what Sun told the U.S. Senate.

Widenius wants Oracle to be forced to divest MySQL to somebody who would preferably change its open source license from the GPL to Apache.

To neutralize Widenius Oracle's got the world's leading expert on the GPL, Eben Moglin, the lawyer who wrote it and enforces it, on its side as well as former MySQL CEO Marten Mickos. Both are reportedly independent expert witnesses.

Monty will get to support the EC's case Friday along with Microsoft and the German SAP, two of Oracle's greatest competitors.

SAP's got a dog in this race simply because it writes applications on top of Oracle databases and Oracle is out to kill it but Microsoft's appearance is payback.

It's not just that Oracle has posed MySQL as a competitor to Microsoft's SQL Server rather than its own database. Business reason enough for it to show up but it was also Oracle and Sun that pushed the Justice Department into bringing the antitrust suit against Microsoft that opened the floodgates to Microsoft being heaped with lèse majesté abuse ever since. There would never have been a DOJ suit without their lobbying efforts.

It's also payback time for Sun's complaint to the EC about the scarcity of Windows interoperability information that eventually led to an expanded EC probe of Microsoft, its first statement of objections against the company and the first whopping great fine Microsoft had to pay.

A guy that isn't even there could have some truck with the EC. IBM Software chief Steve Mills, who thinks Oracle is going to get its way in the end, told the Financial Times the other day that IBM's DB2 database never runs into MySQL, supporting Oracle's contention that traditional back-office databases like DB2 and its own stuff don't compete with the webby, less sophisticated, "bottom-of-the-market" MySQL, as Mills described it.

In response Widenius' spokesman Florian Mueller circulated an e-mail reiterating what he told the FT - "that IBM's comments were an indication that competition concerns were well founded. They would like MySQL to be confined and lose relevance because they, too, feel competitive pressure from it."

The EC's whole theory rests on the contention that Oracle and MySQL are direct competitors and the notion that Oracle means to subvert the thing at some point down the road.

The deadline for the EC's decision is January 27. Oracle currently has until Monday December 14 to submit a remedy.

Reuters reported after an EC press conference Wednesday that its lame duck antitrust chief Neelie Kroes said she was "still optimistic that we can reach a satisfactory outcome that will ensure there is no adverse impact on effective competition in the European market."

It's unclear why she would be optimistic in the face of Oracle's insistence on her unconditional surrender. It looks more like a Mexican standoff.

Oracle attorney Thomas Vinje professed himself "extremely happy" after the first day of the two-day hearing but then Mueller also said, "I'm in an excellent mood this evening."

If the EC refuses to give the merger safe passage Oracle is likely to try to fight its decision in the European courts.