There is some divergent commentary in the blogosphere about the new-U.S.-Democratic-party Department of Justice (DoJ) taking the Oracle (ORCL) acquisition of Sun (JAVA) off the fast track. Bloggers and technical journalists are asking whether it has to do with a perceived competition between Sun’s open-source-variant MySQL data management software and Oracle’s flagship relational database products, or between Oracle’s or Red Hat’s versions of the Linux operating system, or something related to Oracle’s long-planned Fusion products (updated news is due on that subject on July 1, 2009).
But it’s best to take Oracle’s outside counsel at his word, even if that word was put out in a press release cryptically titled “Oracle Issued the Following Statement” at 5:00 pm Friday nite June 26 at the height of the Michael Jackson drama. This guy wants to keep his law license and probably wants to keep practicing securities law rather than chasing ambulances.
"We've had a very good dialogue with the Department of Justice and we were almost able to resolve everything before the Second Request deadline (which occurred over the June 26 weekend). All that's left is one narrow issue about the way rights to Java are licensed that is never going to get in the way of the deal. I fully expect that the investigation will end soon and not delay the closing of the deal this summer."
Traditionally Democratic-administration DoJs hold up mergers or initiate anti-trust investigations because of alleged illegal tie-ins of product features to the entire information technology (IT) market or to defend failed competitors in the IT market. But there doesn’t seem to be any grounds for either in this case unless the illegal tie-in relates to GNU General Public License (GPL) or the failed competitor is Sun itself.
The GPL, under which open source Java has been licensed since 2006, has restrictions in it that some might find anticompetitive. At one time Java was like most software in that it was its source was "closed," and it was licensed and supported for a fee. Later Java was released “freely” but was not licensed under the GPL—which is one of a couple of score of popular open source licenses. This caused what the GPL’s author, the Free Software Foundation (FSF), called the Java Trap.
The new U.S. Democratic administration's DoJ can be excused for getting caught up in the intrigue of the FSF philosophy, where “free” does not mean at no cost, where “open” does not mean you can do anything you want with the code, and where “copyright” has been replaced by a concept called copyleft. I leave a precise definition of copyleft to the lawyers (and philosophers) but it roughly means that if you use GPL to license a piece of software, you also have to use GPL to license any software based on that software. Most of the other dozens of open source licenses relate to software that is actually free the way most people think of the word, open in the sense most people interpret open, and based on the copyright principle with which most have worked since whenever. Such licenses, unlike the GPL, allow users to subsequently do anything they want with software so licensed, including release it with a closed license.
That all sounds like a narrow licensing issue to me. Maybe the DoJ's concern is more complicated than that but I can't figure how.
-- Dennis Byron