The idea of a patent commons is members don't sue one another over technology covered by the common pool.
The idea of open source is we drop our legal swords and don't go to war with one another after exchanging precious bodily fluids.
What made Java a universal technology was the assumption it was covered by a patent non-aggression pact, starting with the Java Community Process, launched in 2002. It has been covered by the GPL since 2006.
Oracle has just blown all that up, suing Google for its use of Java in Android, a Linux distro. (One of the Oracle lawyers is our old friend David Boies, so I guess Oracle and Google can't be gay-married anymore.)
Florian Mueller, who inveighed against the Oracle acquisition of Sun (based on mySQL), is in full I-told-you-so mode. This is a direct attack on open source, he writes. Oracle seems to have made no effort to come to an agreement before dropping its legal bomb. It's a direct blow against the very idea of open standards.
Both Oracle and Google are OIN licensees, so in theory there is a non-aggression pact in place between them, but everyone can see that Oracle sues Google anyway because the OIN's scope of protection is too narrow.
So where are those pro-Oracle FOSS advocates now? Will they come out unequivocally in support of Google and condemn Oracle's action? Will they admit that it was a bad idea to let Oracle acquire Sun in the first place? Will they concede that they were wrong when they said Oracle would be a good owner of those patents? Will the SFLC and the Public Patent Foundation now lend pro-bono legal support to Google in order to get those Java patents invalidated before they do more damage?
Or will they keep quiet due to a conflict of interests and only talk about a bogeyman and propose fake solutions such as the OIN in order to distract the community from the real problems?
Personally I don't think this is a suit meant for trial. I suspect Oracle wants what Microsoft got through its Novell deal, a cross-license with an unspecified amount of cash behind it so can assert its authority. (Ironically, Miguel de Icaza now says Google might be in better legal shape with Microsoft technology.)
In a rational world, Oracle might get just that. What open source has proven, conclusively, is that agreements and cooperation can be more profitable than legal war.
This is not always a rational world.
A Google-Oracle compromise might be good business, but it would damage Google's credibility, which remains a prime asset. It would make Google look dirty, which may be Ellison's point. It would make open source look like just an armistice between big legal teams, another happy thought for someone with billions in the bank.
But if open source is not to become just another scam, Google needs to hang tough here. If you're to not be evil, you have to be willing to confront evil.