The Rise of the Anti-Commons

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Tim O'Reilly
Feb. 01, 2001 12:50 PM
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The idea of the internet, and the open source development communities it supports, as a "commons" is something that has been central to my thinking for many years. In 1996 and 1997, my "stump speech" was called We Need a Sierra Club for the Internet. Whether I'm talking about internet standards, open source software, or the danger of software patents, I'm motivated by the idea that there is a rich substrate of shared technology and ideas on which all of us can build. This is the topsoil in which innovation flowers; maintaining and enhancing that topsoil is essential if innovation is to flourish.

In my thinking and speaking on the issue, I've been focused mainly on the danger of failing to contribute to the commons, and its gradual loss of richness and relevance as a result. Last week, two conversations made me realize that the problem is far worse.

I was speaking with Charles Cella, the CEO of BountyQuest. Charles pointed out that patents don't actually give you the right to do anything. They simply give you the right to stop others from doing it.

A few days later, at a meeting of the Computer Science and Telecommunications Board, Berkeley Law Professor Pam Samuelson raised this same issue. She spoke of the rise of the "anti-commons". If enough people have the right to stop each other, no one can do anything.

This phrasing gives a framework for thinking about the real role of patents. Patent advocates would have us believe that they protect the rights of innovators. Realizing that the form of that protection is not a right to exercise the innovation in question but merely to keep others from exercising it, we may be more hesitant to go down that path. Where does our right to stop someone else end, and their right to stop us begin? Do we end up in gridlock, a gridlock in which only the large players, who can afford the expense of patent cross-licensing, can continue to move?

Tim O'Reilly is the founder and CEO of O'Reilly Media, Inc., thought by many to be the best computer book publisher in the world, and an activist for open standards. O'Reilly Media also publishes online through the O'Reilly Network and hosts conferences on technology topics, including the O'Reilly Open Source Convention, the O'Reilly Emerging Technology Conference, and the Web 2.0 Conference. Tim's blog, the O'Reilly Radar "watches the alpha geeks" to determine emerging technology trends, and serves as a platform for advocacy about issues of importance to the technical community. For everything Tim, see tim.oreilly.com.

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