Re: The GPL and Patents: ROFL

[Alexander Terekhov]

> http://fosspatents.blogspot.com/2010/08/oracle-sues-google-says-android.html
> 
> ". . . .
> 
> 6. Where are the free software activists, lawyers and paralegals who
> supported Oracle's acquisition of Sun?

Related post on LWN:

http://lwn.net/Articles/399840/#Comments

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So what do the proponents of Oracle's acquisition of Sun think now?

Posted Aug 13, 2010 21:02 UTC (Fri) by hingo (subscriber, #14792) [Link] 

I had already decided to stay away from this thread, but since it goes
directly back to the Oracle-Sun merger case, I will make a few
statements to complement Florian. 

Disclaimer: I'm currently on a long paternity leave from Monty's
company, where we develop MariaDB, a MySQL fork. Before my leave I
worked as COO and worked together with Florian during the process. We
used Florian as our EU competition policy advisor, for one because he is
a leading expert in Europe in this area, but also because he worked with
MySQL AB and thus knew the history very well. (Better than most other
"advisors" I saw in Brussels, have to say.) The position paper discussed
on Groklaw and now here was mainly authored by Florian and submitted in
our name, as part of this engagement. We only retained Florian for some
specific occasions, on and off, the other submissions were mainly
authored by myself, using Florian's initial crash course into
competition regulation best I could. (We are a small company, so this
was the best compromise solution for us.) 

At the moment there is no affiliation between Florian and myself or our
company. 

Then for the comment: Hm. PJ's criticism appeared to be that you were
trying to get the license of MySQL changed away from GPL. At least
that's how I understood her. 

Like Florian already said, this is what PJ wants you to understand, and
it is completely wrong. The position paper is public, and you can see we
do not endorse license change as something that would solve competition
concerns. Since this became such a hot topic, I once reviewed everything
we submitted to the EU, including the documents not written with
Florian's help, plus the email exchanges with PJ, plus email exchanges
with Eben (Oracle didn't allow Carlo to talk to us, so no email exchange
there). I can honestly say in these documents we never proposed to
anyone that changing the license would be a good solution to the
problem. Like Florian says, it was not something we even could have
done, but since we at times acted without his advice, it is of course
possible we could have written silly things too. We didn't. We
consistently advocated that Oracle shouldn't be allowed to own MySQL,
period. Also very close to the part that PJ selectively quotes, we
immediately said that changing the license still wouldn't solve most of
the problems. (Arguably, it would have changed one of many problems, see
below.) 

The back story to how this debacle erupted is as follows: 

1. Oracle had said to the EU that it doesn't really matter who owns
MySQL, because it is open source, so they should get to keep it. 

2. As part of standard procedure, EU asked competitors and customers
what they think of this. In fact, Oracle had specifically mentioned our
company and our fork of MySQL as proof that they are right. This was the
main reason how we ended up in this in the first place. 

3. While emphasizing that competition is mainly about other things that
some code existing under some license (such as active marketing and
sales organization) we explained to the EU that Oracle's statement is
wrong, we explained about MySQL's dual licensing model, etc. Essentially
what we tried to say was that the GPL is not the same as public domain.
We used as example other Sun software which are under the Apache License
to illustrate how Oracle's claim actually would be more true if MySQL
was available to everyone under such a license too. 

...but we never wrote anything that said a different license is
something we wanted. In fact in the first round of submissions the EU
specifically asked for things that are problematic from a fork's point
of view. We gave a very long list (such as MySQL's manual is not open
source), but the GPL is not on this list. 

PJ had access early on to these documents, and she had access to me by
email. I have no idea why she chose to attack us - on the other hand it
took me completely by surprise that many other people also came out and
said that Oracle is this lovely open source company that will never do
anything bad to MySQL or other Sun software. 

Carlo's blog post suggests these people were approached by Oracle and
selectively shown things from the documents EU collected (these where
confidential and only available to Oracle). Carlo seems to have made his
decision under the impression that the EU was working against Oracle
only because Microsoft and Monty Program in some kind of partnership
opposed the deal and everyone else loved it. In reality it is more
likely the EU started the investigation because all four of Europe's
biggest ICT companies were against it. (One was neutral in opinion, but
factual answers indicated major competition concerns for them too.) It
seems in Carlo's blog post he has not seen these submissions, and access
to this information was completely controlled by Oracle. 

...or there could be any other explanation. As for Groklaw, her
expertise seems to be in how the US judicial system works, which was
very useful in the SCO case since that was mostly about abusing that
system. This case was a) in Europe, b) not a court case anyway and c)
about MySQL, none of which she should know much at all about. As far as
I know she made her decision mostly based on trusting other people she
talked to and not trusting me. (And this seems to be a pattern at
Groklaw, so it makes sense.) Oh, and there is the fact that Monty was on
the advisory board for the Codeplex Foundation, which at Groklaw is
proof that you are a bad person. 

(Trivia: Windows is still today the most popular development platform
for MySQL, and AFAIK also PHP and most popular PHP apps. One explanation
probably is that web developers need to test with Internet Explorer.) 

Since I ended up writing anyway and I know nobody will read my blog post
Florian referred to, I might as well add that: 1) It was written some
time ago completely unrelated to todays discussion. 2) I'm not aware of
any public statement or writing from either Eben or SFLC that would tie
them into the same kind of "Oracle is a good home for Sun's patents"
motivation that Carlo mentions in his blog, but 3) without naming names,
it is true from private conversations that Carlo was not the only
prominent FOSS lawyer to hold that view, he was just the only one
blogging it. The point of my blog post was not to name names, rather
that I observed a dividing line in that our lawyer friends (and a
paralegal) tended to side with Oracle while hackers also outside the
MySQL sphere sided with keeping MySQL free. 

Regarding Carlo I've always emphasized that as a lawyer he is free to
work for any client that needs his FOSS expertise and this doesn't make
him more or less a friend of FOSS, it is just what he is supposed to do
as a lawyer. I can honestly say I wish Oracle had let him help them even
more, we will never know if the painful process could have been handled
faster in that case. 

Henrik Ingo
formerly Monty Program COO, now Dad
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regards,
alexander.

--
http://gng.z505.com/index.htm 
(GNG is a derecursive recursive derecursion which pwns GNU since it can 
be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards 
too, whereas GNU cannot.)