Seems that Oracle has decided that perhaps petulantly refusing to cooperate with the European Commission’s antitrust probe isn’t the best course of action here and has asked for “the opportunity to further develop its arguments in relation to the commission’s concerns.” Presumably, the company wouldn’t need such time if the EC’s objections were as baseless as it has argued. The standoff between the two, then, would appear to be over and we may see a solution to the matter early next year.

• Orphan works–books whose copyright holders are unknown–will be overseen by an independent trustee who will administer their licensing, not by Google.
• Books published outside the United States, United Kingdom, Canada and Australia will be excluded from the settlement.

Those are substantive alterations, but they clearly haven’t placated critics who accuse Google (GOOG) of attempting an “end-run around copyright law as we know it.”

The Open Book Alliance–a coalition whose members include the Internet Archive, Amazon (AMZN), Microsoft (MSFT) and Yahoo (YHOO)–has blasted the revision twice already, decrying it as “a sleight of hand” intended to distract people from Google’s continued efforts to establish a monopoly over digital content access and distribution.

“The proposed changes fail to address this deal’s fundamental flaws,” Open Book Alliance Co-Chair Gary Reback said in a vitriolic statement. “Despite Google’s effort to spin this deal, it does nothing to promote competition nor does it reform Google’s exclusive access and monopoly hold on this digital database of books. Their proposed ‘unclaimed works fiduciary’ will have zero authority to promote competition or expand access. It is a cynical diversion away from the parties’ continued reliance on the discredited argument that competitors can obtain access through the very means Google did–getting sued for copyright infringement and abusing the class action process. This deal remains rife with anti-trust, class action and copyright violations.”

According to Oracle (ORCL) CEO Larry Ellison, Sun (JAVA) is already losing $100 million a month as it waits for regulatory approval, and judging from the price of the company’s stock today, it may be losing even more than that. Shares in Sun slid to $8.11–about 15 percent below Oracle’s offer price and a far cry from the $9.18 they hit in mid-October.

Clearly, investors are alarmed by this latest turn of events, though industry observers say there’s little reason for them to be. Morgan Stanley, for example, believes Oracle’s acquisition of Sun will win EU approval with few, if any, modifications to the MySQL database software about which regulators are so concerned.

“Based on our diligence, we believe the EC is likely to approve the deal with no remedies or remedies pertaining to MySQL’s licensing,” the research house said in a note to clients today. “It is highly unlikely that Oracle restructures the deal (e.g. spins MySQL) or walks away.”

Morgan Stanley’s call: The deal will go through and at $9.50 per share. As the firm notes, the EU hasn’t blocked a U.S.-based transaction since GE/Honeywell in 2001.

On November 9, 2009, the European Commission issued a statement of objections relating to the acquisition of Sun by Oracle Corporation. The Statement of Objections sets out the Commission’s preliminary assessment regarding, and is limited to, the combination of Sun’s open source MySQL database product with Oracle’s enterprise database products and its potential negative effects on competition in the market for database products. The issuing of a Statement of Objections allows addressees to present arguments in response to the Commission’s preliminary assessment of the competitive effects of a notified transaction. A Statement of Objections is a preparatory document that does not prejudge the European Commission’s final decision. Any final decision by the European Commission is subject to appeal to the European Court of First Instance.

Indignant that the EC would dare to bring the $7 billion deal into question, Oracle vowed to take it to the mat in a harshly worded rebuttal:

Oracle’s acquisition of Sun is essential for competition in the high end server market, for revitalizing Sparc and Solaris and for strengthening the Java development platform. The transaction does not threaten to reduce competition in the slightest, including in the database market. The Commission’s Statement of Objections reveals a profound misunderstanding of both database competition and open source dynamics. It is well understood by those knowledgeable about open source software that because MySQL is open source, it cannot be controlled by anyone. That is the whole point of open source.

The database market is intensely competitive with at least eight strong players, including IBM, Microsoft, Sybase and three distinct open source vendors. Oracle and MySQL are very different database products. There is no basis in European law for objecting to a merger of two among eight firms selling differentiated products. Mergers like this occur regularly and have not been prohibited by United States or European regulators in decades.

The U.S. Department of Justice carefully reviewed the proposed acquisition during the normal Hart-Scott-Rodino review and considered it again when the European Commission initiated a second phase review. On both occasions the Justice Department came to the conclusion that there is nothing anticompetitive about the deal, including specifically Oracle’s acquisition of the MySQL database product. The U.S. Department of Justice approved the acquisition without conditions and terminated the waiting period under the Hart-Scott-Rodino Act on August 20, 2009.

Sun’s customers universally support this merger and do not benefit from the continued uncertainty and delay. Oracle plans to vigorously oppose the Commission’s Statement of Objections as the evidence against the Commission’s position is overwhelming. Given the lack of any credible theory or evidence of competitive harm, we are confident we will ultimately obtain unconditional clearance of the transaction.

And Oracle will evidently pursue its case with help from the U.S. Department of Justice’s Antitrust Division, which also issued a statement on the EC’s move today:

After conducting a careful investigation of the proposed transaction between Oracle and Sun, the Department’s Antitrust Division concluded that the merger is unlikely to be anticompetitive. This conclusion was based on the particular facts of the transaction and the Division’s prior investigations in the relevant industries. The investigation included gathering statements from a variety of industry participants and a review of the parties’ internal business documents. At this point in its process, it appears that the EC holds a different view. We remain hopeful that the parties and the EC will reach a speedy resolution that benefits consumers in the Commission’s jurisdiction.

Several factors led the Division to conclude that the proposed transaction is unlikely to be anticompetitive. There are many open-source and proprietary database competitors. The Division concluded, based on the specific facts at issue in the transaction, that consumer harm is unlikely because customers would continue to have choices from a variety of well established and widely accepted database products. The Department also concluded that there is a large community of developers and users of Sun’s open source database with significant expertise in maintaining and improving the software, and who could support a derivative version of it.

The Department and the European Commission have a strong and positive relationship on competition policy matters. The two competition authorities have enjoyed close and cooperative relations. The Antitrust Division will continue to work constructively with the EC and competition authorities in other jurisdictions to preserve sound antitrust enforcement policies that benefit consumers around the world.

“Every new day of uncertainty is potentially very harmful to the various businesses of Sun, reducing competition in the market,” Mickos wrote. “A delay in the closing of this transaction is therefore only going to work against the respectable goal that you set out to achieve when launching the probe into this acquisition.”

Oracle, says Mickos, has far better reason to ramp-up Sun’s MySQL business than it does to harm it.

“Even if Oracle, for whatever reason, would have malicious or ignorant intent regarding MySQL (not that I think so), the positive and massive influence MySQL has on the DBMS market cannot be controlled by a single entity–not even by the owner of the MySQL assets. The users of MySQL exert a more powerful influence in the market than the owner does,” he continues. “Many expected Oracle to harm MySQL as far back as 2005, when they acquired the InnoDB storage engine that plays a crucial role for many MySQL customers. And yet Oracle increased their investment in InnoDB since that time, making MySQL a stronger player in the market.”

An interesting argument and one that appears to offer Mickos little personal gain. Now an entrepreneur in residence at Benchmark Capital, Mickos says he has no financial interest in the transaction. So why bother making it? “I couldn’t live with the fact that I’m not taking action,” Mickos told News.com.

Mickos’s letter will no doubt be welcomed by Oracle, which has repeatedly said it has only the best intentions for MySQL. “No, we’re not going to spin [MySQL] off,” Oracle CEO Larry Ellison told attendees of a Churchill Club event in Silicon Valley earlier this year. “We are keeping everything. We’re keeping tape. We’re keeping storage. We’re keeping x86 and SPARC. And we’re going to increase investment in all of them.”

“If, just for one dollar, if we could buy IBM, HP, Sun or some other tech company, I’m not sure we wouldn’t pick Sun.”

– Oracle CEO Larry Ellison

The European Commission’s inquiry into Oracle’s proposed acquisition of Sun is costing the database giant dearly. Speaking at a Churchill Club event in Silicon Valley Monday evening, Oracle CEO Larry Ellison said Sun is losing $100 million a month because of the extended European antitrust review.

The uncertainty around the deal has sent some shaken Sun (JAVA) customers running to rivals like IBM (IBM) and Hewlett-Packard (HPQ). “The longer this takes, the more money Sun is going to lose, and that’s not good for anybody,” Ellison said. “We want to get this done to save as many jobs as we can.”

That said, Ellison is confident the deal will be approved. “The U.S. took their time and deliberations and cleared it. They said it was overwhelmingly a pro-competitive deal,” he said. “The Europeans have to do their job too, but I think they’ll come to the same conclusion.”

And once they do, once Oracle (ORCL) begins peddling high-performance computer systems that integrate its technology with Sun’s at the engineering level, the company will be well on its way to becoming the next IBM.

In Ellison’s view, anyway.

“I would like us to be the successor to IBM,” Ellison said. “But we want to be T. J. Watson’s IBM. Not Gerstner’s IBM. Not Palmisano’s IBM,” he said, referring to the company’s other CEOs. “That’s when IBM really was the dominant software company.”

Continuing, Ellison noted that “T.J. Watson’s IBM was the greatest company in the history of enterprise in America because its combination of hardware and software was running most of the enterprises on the planet. We think with the combination of Sun technology and Oracle technology we can succeed and beat IBM. That’s our goal. We have a deep interest in the systems business. We think that by combining our software with hardware that we can deliver systems that can be the backbone of most enterprises in America and around the world.”

In a research note issued this morning, Bernstein analyst Toni Sacconaghi wondered whether Oracle (ORCL) might even consider walking away from the deal, though he ultimately concluded that it was unlikely.

“Given ORCL’s repeated and strident commentary, it appears very unlikely that it will walk away from the deal, although it would not face a break-up fee if it did (unlike Sun, which faces a $260+ million break-up fee),” he wrote. “We continue to believe that the JAVA-ORCL deal is very likely to close, but it will be interesting to see if Oracle’s conviction level waivers at all on its earnings call today.”

Indeed. Certainly, there are plenty of reasons to think that it might. For one thing, notes Sacconaghi, Sun’s (JAVA) recent financials are going to make it difficult for for Oracle to hit its promised $1.5 billion in first-year accretion profits.

“Our forecast now calls for [Sun] to be barely break even on a non-GAAP basis next year,” Sacconaghi says, adding that earnings are likely to be nearly $900 million less than he modeled when the deal was first announced. “Accordingly, assuming no material revenue synergies, our analysis suggests that in order to hit its $1.5B accretion target, Oracle may need to reduce Sun’s workforce by 15,000, which represents over 50 percent of Sun’s current headcount and appears implausible.”

So Oracle could hit its aggressive Year One accretion targets. It would just have to gut Sun to do it.

One last point worth noting here. Sacconaghi seems confident the European Union will ultimately approve Oracle’s acquisition of Sun, though possibly with conditions around mySQL. But he thinks approval will take time. And the longer it takes, the worse it will be for Sun, whose business is already suffering from the uncertainty surrounding it.

“…The EU took an average of 140 days between the time that a Phase II [review] was announced and a merger was ultimately approved,” he explains. “Given that Phase II for the JAVA deal was announced on September 3rd, this implies a January date for resolution, and would require JAVA to go through another two full quarters as a standalone company. With uncertainty around the ORCL deal already weighing on JAVA, this suggests the potential for further erosion in Sun’s financials.”

Welcome news for Sun (JAVA) engineers worried they might lose their jobs as a result of Oracle’s (ORCL) surprise acquisition of the company. Bad news for rivals like Dell (DELL), HP (HPQ), and, of course, IBM (IBM). Clearly, Oracle plans to make their lives a lot more difficult.

To wit, Google’s announcement Monday of a number of concessions to the European Union, which seems a bit dubious of the whole thing. In a letter to several publisher associations in Europe, the company invited two non-U.S. representatives to join the board that will oversee the book rights registry that is to distribute royalties from digital book sales under terms proposed by the settlement. The company also promised to seek their permission before digitally publishing European works still protected by copyrights.

“Books that are commercially available in Europe will be treated as commercially available under the Settlement,” Google (GOOG) explained. “Such books can only be displayed to US users if expressly authorised by rights holders.”

Quite a concession, given Google’s plans to create a so-called “last library,” but clearly necessary with opposition to the deal abroad so pronounced. Already, Germany has filed an objection to it, saying the agreement would “irrevocably alter the landscape of international copyright law.” And now France is about to do the same.

“Google will have a monopoly digitalising European orphan works without permission,” Nicolas Georges, director for books and libraries at the French Culture Ministry, told Reuters. “Google has the power to determine which work will be in its database or not. For example, some works that are not commercial may be removed by Google.”

Seems Google’s effort to establish a de facto worldwide copyright regime isn’t going to be quite as easy as the company had hoped.

For its fourth quarter, Sun posted a loss of $147 million, or 20 cents a share, compared with a profit of $88 million or 11 cents a share in the same period a year earlier. Revenue dropped 31 percent to $2.63 billion. Excluding special items, the company said its quarterly loss was three cents a share.

A sad final showing for the former Silicon Valley icon, which is soon to become another acquisition notch in Oracle’s (ORCL) belt. The database giant won U.S. antitrust regulatory approval for its merger with Sun earlier this month, and a ruling from European regulators is expected in September.