One of the themes of the Free Culture Movement, especially its variant called open source software, is the idea of “the community,” which eschews the claims of property rights in the name of collective achievement, and rewards its members in the form of accolades and reputation.  Indeed, Harvard’s Yochai Benkler made his academic bones with an article, later turned into a book, on The Wealth of Networks, which argued that “social production” is a new approach that will supplant older and now obsolete modes of production in the Internet age.

We skeptics have scoffed at this on a number of grounds, especially at the claim that alternatives to markets are morally superior and at the lack of grasp by the FCM that markets are institutions for coordinating human effort in a fair and predictable manner.  Markets are engines, not enemies, of community, and much better ones than vague assertions of altruistic superiority.

So it is fun to read about dissension among the open sourcers, in the same ungenerous spirit with which one hears of the preacher caught in the robing room with the church’s organist.

The latest is the Oracle-Google patent dispute, which ArsTechnica updated yesterday. Oracle has asserted that Android infringes various Java patents that it acquired when it bought Sun, and Google has now fired back a broadside of 20 defenses, using the full legal panoply of “I didn’t do it; and anyway I had a right to do it; and in any case they made me; and you can’t prove it.”

My amusement is a bit unfair, because Oracle has never partaken of open source KoolAid. But Sun did, in spades, and it was Sun’s inability to find a viable open-source-based business model that put its assets into Larry Ellison’s hands. It turned out that giving away software value in the hopes that people would then love Sun enough to buy lots of hardware was not a good strategy. Mostly, what it got was complaints from “the community” that Sun was not pure enough, and needed to do even more.  There is a certain rough justice in having that community now in Ellison’s hands.

The real lesson, though, is that open source regimes actually become more complicated than those that are property-based. When a company is selling software licenses, both parties need to make things clear and minimize the transaction costs. In the open source world, with its ideological motivations layered on top of commercial ones, the licensing issues get very complicated, and very fragmented. Whatever unlucky judge has this case will have his/her intellect tested in trying to figure out who had the right to do what, and, equally important, who, if anyone, had the right to give permission to Google to do what.

For example, ArsTechnica notes that one point of contention is that: “policies of the Java Community Process—with which Oracle is contractually obligated to comply—require the company to supply the Java test suites under terms that don’t preclude third-party open source implementations.” So who is “the Java Community”? And who decides whether its policies have been complied with?

When so many entities get entangled, open source software can become an anti-commons – the state of too many people having dominion over something, so that anyone can say “no” and no one can say “yes.”

Image from louisvolant photostream.