Feb. 2, 2007

Blackboard Makes a Pledge

After months of criticism that its patent policies had the potential to squelch important education projects, Blackboard on Thursday announced a “patent pledge” under which it vowed not to assert its patent rights to sue open source projects or home-grown software used by colleges and universities.

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The pledge followed weeks of intense negotiations between Blackboard, Educause and Sakai. Educause is an umbrella group for technology leaders in higher education and Sakai is a leading open source consortium — both groups have criticized Blackboard’s handling of the patent issue. Blackboard officials said that they believed their pledge contained more than enough protection to assure the skeptics. “The pledge covers anything anyone is realistically worried about in the e-learning community,” said Matthew Small, Blackboard’s general counsel. “Any school can look at this pledge and sleep easy at night.”

Some of those who have been criticizing Blackboard said that the company had indeed moved in their direction, and that the pledge offered much more legal protection than the company had previously offered. But if Blackboard wants its critics to sleep easy at night, it may need to ship out a lot of Ambien, because many said that they believed the company’s pledge left them as anxious than ever. And many continued to express a distrust for the company.

John Norman, chairman of the Sakai board and director of the Centre for Applied Research in Education Technologies at the University of Cambridge, said that pledges not to enforce patent rights depend for their success “on people trusting the action of the person making the pledge.” Blackboard officials “did manage to convince me that they were serious about this,” he said, but they also felt that “they had to keep their legal options open” on some issues that remain of concern to Sakai.

He said that the response he was hearing from Sakai users after the announcement Thursday morning was “surprise that we’d been positive at all” about the Blackboard pledge. Since it’s too early to see how Blackboard will follow the pledge, Norman said that his members’ reaction “comes back to the trust issue.”

And there were some signs Thursday that Blackboard’s announcement may have added to its credibility problems. The announcement included a sole quote from a joint statement of the boards of Sakai and Educause, praising Blackboard’s action. The quote was indeed drawn from the joint statement, but it was the most positive part of a decidedly mixed review that the two organizations gave to Blackboard’s action. The full statement also included criticisms of Blackboard’s legal strategy, questioned the validity of the patents at the center of the dispute, and drew attention to loopholes in the Blackboard pledge.

In fact, Blackboard’s quotation was so selective that some of the company’s critics were blogging about their disappointment with Educause and Sakai for endorsing the pledge — only to be correcting their blog entries later when, after reading the full Educause/Sakai statement, they could call Blackboard “misleading” once again.

And the frustration with the announcement reinforced for many their concerns about the company. “I think you can drive trucks through the loopholes and since they reserve the right to litigate if they think you are in violation of the pledge, there is a segment of the community that is chilled. Some people will be satisfied with this, others will not and the litigation will continue on its merits. It’s still a bad patent, IMHO,” wrote John P. Mayer on the blog CALIopolis.

The patents at the center of the dispute were awarded to Blackboard a year ago, and their breadth is a key part of the dispute. Critics say that the patents are so broad that they would appear to cover just about any online learning technology, and could be used to squelch innovation at a time that Blackboard — following its absorption of WebCT — is already a dominant player in the course management business.

Blackboard has insisted that it is not out to hurt open source, that the fears about its patent claims are exaggerated, and that higher education benefits from the company’s ability to invest in new products — something it says it couldn’t do without protecting its intellectual property. The concerns about Blackboard’s patent strategy increased when it sued Desire2Learn, which competes with it in the course management market. As the dispute has escalated, Sakai and others have asked the U.S. Patent Office to reconsider Blackboard’s patents, which it agreed to do, but patent reviews and patent litigation are notoriously long in duration.

Blackboard’s Small portrayed Thursday’s announcement as a legal codification of what the company has been saying all along. “From day one, Blackboard has made public statements that it is not focusing its patent-enforcement efforts on schools or open source, and today we are putting it in writing, so that there is no fear, or uncertainty, or doubt regarding our intentions, so that open source groups and schools will take advantage of the pledge, and know that there is no concern.”

Asked if the pledge responded to a backlash that the company has received, Small rejected the term “backlash” and said that the company was just doing what any company would do in terms of its customers. “This is not in response to a backlash,” he said. “The community had lots of questions and some concern about multiple, unrealistic, hypothetical enforcement scenarios, and we listened to the community, and worked in collaboration with Educause and Sakai to put together a pledge that would give finality to these concerns in a legally binding way, global way.”

Several observers of the fight, asking not to be identified, said that there is no question but that there has been a backlash, especially since Educause went on record questioning some of Blackboard’s actions. When Blackboard first was facing criticism from open source advocates, the company and its supporters portrayed its critics as naive idealists, hostile to any corporate role in higher education.

While the open source/corporate divide is far less of a dichotomy than some would admit (there is plenty of collaboration, including collaboration between open source projects and Blackboard), these observers said that Educause’s criticism was something Blackboard couldn’t ignore or try to work around. Educause’s leaders are the key IT players on campuses all over the United States, and they deal with big tech companies all the time.

Norman, of Sakai, said that his group and Educause worked well together in pushing Blackboard, and that the company was “more concerned about Educause.”

In the end, Norman, as well as Brian L. Hawkins, the president of Educause, said that they wanted to let their joint statement speak for itself and not detail the remaining disagreements with Blackboard beyond that.

That statement reiterated the groups’ view that the Patent Office “erred” in granting Blackboard its patents. As to the pledge, the statement noted that “Blackboard has also reserved rights to assert its patents against other providers of such systems that are ‘bundled’ with proprietary code,” adding that the groups “remain concerned that this bundling language introduces legal and technical complexity and uncertainty which will be inhibitive in this arena of development.” Similarly, the statement noted that the groups had tried — and failed — to get Blackboard to include in its pledge a stipulation that it would not sue a college or university using a competing product for patent violations.

“The Sakai Foundation and Educause find it difficult to give the wholehearted endorsement we had hoped might be possible,” the statement said.

The “bundling” issue is one on which both Blackboard and its critics have strong views. Many colleges combine proprietary software they license from companies with open source software developed by Sakai or similar groups or by individual groups of professors. The scenario that worries colleges is one in which an institution is combining open source with Desire2Learn services (or those of some other company). To the extent Blackboard asserts Desire2Learn is violating Blackboard patents, it is not pledging to accept joint projects that use such disputed software. The company has said repeatedly that it realizes that it would be terrible for its image to sue a college in such a circumstance, and that it can’t imagine doing so, but it also won’t give up that right.

Small said that this position was important to protect Blackboard’s rights not against colleges or educators, but against its corporate competitors. If Blackboard made its pledge as broad as some are suggesting, Small said, a competing company could just declare its products to be open source and there would be no way Blackboard could protect its intellectual property. Small also noted that Blackboard, in its FAQ on the pledge, outlined numerous situations in which the pledge would apply, citing the major open source projects by name, and that those are the real situations colleges find themselves in.

The problem with that approach, Blackboard skeptics say, is that much of the development of educational software involves joint projects involving colleges and companies, open source projects that shift over time, and partnerships that evolve. Fear of cooperating with anything that touches something that Blackboard might assert a patent right over is much more limiting than Blackboard acknowledges, these critics say.

John Baker, the president and CE0 of Desire2Learn, said, “Blackboard’s saying that this is a change of heart, but it looks like they are trying to dictate how the educational world is working with educational vendors. They are saying that no one can collaborate with vendors with certain business models. Who is Blackboard to dictate which models should be used?” Desire2Learn has never applied for any patents and “we would never try to never put colleges into a position where we are dictating how technology should be built.”

It’s obviously not shocking that Desire2Learn, locked in a patent war with Blackboard, would find little relief in Thursday’s announcement. But some of the skepticism comes from institutions with Blackboard on their home pages.

Lev Gonick, vice president and chief information officer at Case Western Reserve University, wrote on his blog Thursday that Blackboard’s pledge wouldn’t mean much over the long term because of the way technology is changing. “In a narrow sense, the threat of a frivolous lawsuit to keep lawyers employed has been avoided regarding the stand alone platform issue,” he wrote.

But he predicted that “over the next five years we are likely to see significant tension associated with this pledge” because “the history of community-based and open source initiatives is anything but a binary choice between open and proprietary systems. As so-called open source initiatives evolve over time they will continue to have proprietary pieces in their DNA and perhaps more importantly, there is a near 100 percent certainty that none of today’s open source course management systems will survive in the marketplace as autonomous offerings.”

He continued: “Whether in reaction to Blackboard’s position in the market (a defensive posture) or in attempt to preempt, there is a a significant likelihood that today’s open source solutions will evolve, over the mid-term, first as ‘open source’ course management platform strategic partners with proprietary enterprise integrated software solution providers and within a version release or two become tightly integrated into the proprietary software code. How Blackboard and the higher education community respond to that probable scenario is not a matter of if but rather when....

“Blackboard should take one more look in the mirror and realize that it is not its patents that will protect its near monopoly share of commercial course management software (full disclosure Case Western Reserve University is an enterprise customer of Blackboard) but rather its ability to demonstrate a true commitment to innovation and responsiveness to the higher education marketplace. Today’s Blackboard announcement is a short term ‘fix’ on an unfortunate journey that starts with the anti-intellectual position of seeking a ‘patent’ on a 21st century version of a ‘whiteboard and a marker’ in the 20th century or dare we say a 19th version of a ‘blackboard and chalk.’ “

— Scott Jaschik

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Comments

Problems with Blackboard

I have been in a training program to use Blackboard and Elluminate to do on-line teaching. I have e-mailed Bb with a number of comments. 1. Their feedback form is too long and complicated 2. Their calendar, though similar in format to the google calendar, does not allow repeat events and drag and drop features. 3. Blackboard does not have a search feature. This would be helpful, especially when trying to learn the program.4. It seems to me that Blackboard has not kept up with technological advances, and I feel like I am learning an older, inefficient program which is already out of date and will be next to useless very soon.

Liz, Home and Hospital Teacher at Anne Arundel County Public Schools, at 10:45 am EDT on September 27, 2007

Too much undeserved hatred against Blackboard

Let’s be blunt and honest about this: there is just too much undeserved dislike and distrust against Blackboard from open-source purists, disgruntle long-term WebCT customers upset that Blackboard bought WebCT, and from a large number of other people using competing products and technology who are envious of Blackboard success and growth.

To these people, there is no pledge or anything that Blackboard can do to be trusted, liked or just left alone. They will continue to criticize Blackboard, badmouth the company and feed the backlash. Short of seeing Blackboard going under and disappear, this angry will not stop.

The patent didn’t start this, but it gave the lynch mob a reason to go after Blackboard in a very big and undeserving way. This is a very special and formidable lynch mob, full of very smart and resourceful people, with apparently too much time on their hands.

Blackboard is successful and has significantly grown because their technology is good, very good, and because their products and services do indeed meet very well the needs of several thousand educational institutions around the globe.

The Sakai lynch mob, for example, would not be so vicious, I would imagine, if Sakai wasn’t the perennial crippled, complicated to run, difficult to use, too expensive to support and administer primitive course management system that it is and that it will continue to be for years to come, and if there were more schools actually using it in production.

The Moodle community, on the other hand, has a real and useful product for small-scale deployment, and one that, unlike Sakai, does not take a lot of expensive technical expertise to run and support. This segment of the open-source community should be very happy with Blackboard’s pledge.

The pledge is indeed a big step in the right direction. It’s a bit late, though. Blackboard would have gotten a lot more out of it, had they made these statements the same day they were awarded the ill-conceived patent. It’s damage control, alright, but a positive move, nonetheless.

I still think that this patent and D2L lawsuit is the dumbest mistake that Blackboard has ever made. They have lost so much credibility and they will continue to lose business, especially, given the constant and resilient bickering of the aforementioned formidable lynch mob.

If I were Blackboard I would do three things to hopefully end this sad eLearning episode: drop the patent, drop the lawsuit and fire their legal council. Fire them all, starting with Matthew Small, for getting such a fine eLearning company into this mess. Then again, would the lynch mob noise subside? Probably not.

Alex, at 9:42 am EST on February 2, 2007

Open Source Agreement is the issue not patent

This integration problem emantes from the Linux open source agreement which absolutely prohibits the sale of any end product application developed using the Linux open source operating system. The open source agreement authorizes training and consulting agreements but specifically prohibits sale of the application software developed using the Linux operating system. If Blackboard or any company integrates the open source software into their saleable product both the vendor and end user violate the Linux open source agreement with serious licence penalties.

Phil Shannon, at 9:50 am EST on February 2, 2007

Quoting Shannon:

“This integration problem emantes from the Linux open source agreement which absolutely prohibits the sale of any end product application developed using the Linux open source operating system.”

Say what? Linux (the kernel) is governed by the GPL which basically says that if you modify the Linux kernel you must distribute the source of the modifications.

If the sale of applications developed using Linux is forbidden Oracle and IBM are in big trouble.

Rob Rittenhouse, CS Faculty at McMurry University, at 1:01 pm EST on February 2, 2007

The Blackboard lawsuit is probably the dumbestmove that company has ever made. The history of such suits shows that companies that spend resources defending the present technology miss the whole movement of the field to the next technology. When was the last time you saw dBase or Lotus 1-2-3 being used? Those companies spent years in court and millions on legal fees and ended up looking markets that moved beyond them. They “protected” their intellectual property, only to find it of value only as a museum piece in the history of personal computing. If Blackboard is providing a modern, up-to-date e-learning platform, there is nothing that they need fear from D2l, Sakai or some future competitor. Following the current course where they jealously hold onto the present, and threaten their very customers with legal action will only guarantee their demise.

Michael, at 1:15 pm EST on February 2, 2007

Blackboard’s patent portfolio

If you compare the list of patents that Bb has filed for (particularly the ones that they have filed in the last few months) to the list that they agree not to assert against Open Source, there’s a significant gap. Here’s a list of current pending patents attributed to Blackboard and/or its employees:

* 20060259351 “Method and system for assessment within a multi-level organization” (Filed November 16, 2006) * 20060242004 “Method and system for curriculum planning and curriculum mapping” (Filed October 26, 2006) * 20060242003 “Method and system for selective deployment of instruments within an assessment management system” (Filed October 26, 2006) * 20060241993 “Method and system for importing and exporting assessment project related data” (Filed October 26, 2006) * 20060241992 “Method and system for flexible modeling of a multi-level organization for purposes of assessment” (Filed October 26, 2006) * 20060241988 “Method and system for generating an assignment binder within an assessment management system” (Filed October 26, 2006) * 20060168233 “Internet-based education support system and methods” (Filed July 27, 2006) * 20060026213 “Content and portal systems and associated methods” (Filed February 2, 2006) * 20050086296 “Content system and associated methods” (Filed April 21, 2005) * 20040167822 “Method and system for conducting online transactions” (Filed August 26, 2004) * 20040153509 “Internet-based education support system, method and medium with modular text-editing component for use in a web-based application” (Filed August 5, 2004)* 20040030781 “Internet-based education support system and method with multi-language capability” (Filed February 12, 2004)

If Bb is really serious about dealing with the community in good faith, then why is it only talking about the patent applications that have already been widely publicized?

An interested party, at 1:30 pm EST on February 2, 2007

The Real Reason for the Patent/Litigation

We published the following this morning as part of a larger research note:

“The point of Blackboard’s patent claim and lawsuit, in our opinion, is to scare away any larger administrative software vendors that are currently serving the post-secondary market, such as Sungard SCT or Oracle-PeopleSoft, from entering the academic software arena through acquisition or otherwise, and providing a more substantial alternative to Blackboard. Though we believe the market would embrace such an entrant long-term, customer switching costs are still high and Blackboard’s solution set and market position are still dominant in our opinion. For this reason, we think, acquisition price would likely be a significant factor in calculating the ROI for such a move and the litigation tips the odds away from a transaction of this nature. We believe that no one wants to acquire multi-million dollar litigation, especially when the competitive odds are so stacked to begin with.”

Trace Urdan, Senior Analyst at Signal Hill, at 2:10 pm EST on February 2, 2007

Just the right amount of deserved hatred

People have many valid reasons for hating Blackboard.

Several of those reasons stem from the Georgia Tech incident where researchers investigated how good Blackboard security was. The researchers were threatened with legal action if they were to actually publish their work. How many people have investigated Blackboard security since then? I’ve never heard of a single study.

http://chronicle.com/free/2003/04/2003041601t.htm http://www.interesting-people.org...tp://www.yak.net/mirrors/bb-faq.html

I’ve also heard horror stories of actually trying to maintain Blackboard products, that you have to have daily reboots of the server to keep it up. I can’t cite that claim, and I can only pretend to be comfortable with the fact that my personal information is stored in Bb products.

Blackboard’s tactic for security and for software innovation seems to be “let’s just intimidate everybody else, and we’ll be the only ones left standing.”

Legal tactics aside, you would certainly expect to find competition in a market as lucrative as: “bulk buy card readers for less than $5 each. Sell them for $800 a piece."Wouldn’t you expect a competitor to show up and charge $400 instead? Granted, it’s not as lucrative as pharmaceuticals, but it’s still impressive markup. People hate Blackboard in that case for the same reason they hate oil companies.

Security researcher, at 2:10 pm EST on February 2, 2007

[quote]This integration problem emantes from the Linux open source agreement which absolutely prohibits the sale of any end product application developed using the Linux open source operating system. The open source agreement authorizes training and consulting agreements but specifically prohibits sale of the application software developed using the Linux operating system.[/quote]

That is completely wrong. Before you embarrass yourself any further in public, I’d suggest you read the LGPL, the GPL, the GPL FAQ, and/or ask someone knowledgeable to explain the GPL and LGPL to you.

There is NOTHING that prevents in ANY way the “sale of the application software developed using the Linux operating system.”

IF you write software that needs to link to the kernel, the only restriction is that your code must be licensed under the GPL, but: A. application code almost never needs to link to the kernel, that is usually just device drivers and B. You can absolutely sell software that is licensed under the GPL.

Phillip Rhodes, at 2:25 pm EST on February 2, 2007

you bet

“This segment of the open-source community should be very happy with Blackboard’s pledge.”

Blackboard’s “pledge” provides no legal security for Moodle and it precludes many of the avenues by which open source projects support themselves. So, it doesn’t even serve the needs of Moodle.

Furthermore, they are probably just doing this in order to keep their back free from open source developers while they fight their commercial legal battles.

“This is a very special and formidable lynch mob, full of very smart and resourceful people, with apparently too much time on their hands.”

These “smart and resourceful people” are taking time from their busy schedules because they realize that the educational software market place needs competition, innovation, and a wide variety of software offerings, not a Blackboard-dominated market and a few low-end open source handouts. And these “smart and resourceful people” are offended that Blackboard claims the invention of technologies that have plenty of prior art.

Mike Jones, at 3:25 pm EST on February 2, 2007

I hate blackboard. Patenting e-learning is disingenuous and contrary to the goals of your target market. Blackboard does not deserve to do business with academic institutions.

troll, at 6:15 pm EST on February 2, 2007

prior art

This sounds alot like he CDC Plato(?) education system of the 60’s and the computer aided instruction courses that have followed. I’ve seen a working over the internet group whiteboard demo around 1999/2000. I think there isprior art out there for pretty much the entire patent as best I understand the patent and from what I’ve personally seen in demonstrations.

Richard Shetron, at 5:21 am EST on February 3, 2007

Licensing for Open-Source Software

It really depends on the license. If we are talking about the GPL, this is most definitely not the case.

The GPL expressly tells you that you can sell software, along with support services or any other service you see fit. What the GPL grants the purchaser/recipient are a series of very specific rights: — End-user must have access to all source code involved in creating the software — End-user has the right to modify the software internally and use it for whatever purposes may be necessary — End-user has the right to share the source code with others

None of these rights demands that any money change hands or that it must not change hands. It just gives the licensee very specific rights.

Rob Gibson, at 6:45 pm EST on February 5, 2007

Blackboard

The idea that Blackboard is better software is just not true. A large consortium of colleges recently evaluated all of the major players and rated Desire2Learn and Angel as better values with superior software. As CIO and Dean of Learning Resources at a community college, I convinced our faculty to move all of our courseware from Blackboard to Moodle primarily for two reasons: Moodle encourages and supports student/faculty interaction far better than Blackboard, and Blackboard has clearly been trying to move institutions away from their Basic product to their Enterprise version. This would have meant a $130,000 per year increase in our costs. Our faculty has been enthusiastic about Moodle and the cost savings have been huge. Blackboard management is not dumb. They know they will face increasing pressure from cooperative ventures and the patent is very simply a strategy to squelch competition and corner the market (witness similar attempts in the RIM and SCO cases). Blackboard’s recent(2000)takeover by venture capitalists boded ill for all of us because it changes the profit v education equation. The changes were becoming clear 4 years ago and that’s when we started planning for the change to a different platform. For us it was a matter of survival.

Eric Welch, Dean of Learning Resources and CIO, at 8:15 pm EST on February 6, 2007

Great Discussion

We’re currently looking at many different options including Blackboard. The discussion above has been been eye opening and a great source of information. My thanks to everyone who has contributed. As a potential customer, I will be letting Blackboard know my concerns about this issue.

Tom Phelan, Director of Technology at Peddie School, at 3:01 pm EST on February 7, 2007

Echoes of Microsoft

One poster in this discussion claimed that Blackboard had been successful because it was an excellent piece of software. Has this person ever actually tried to use Blackboard to, say, create a test? Just about anything you try to do in Blackboard, you have to go through half a dozen mouse clicks and wait for it to re-load the page a couple of times. Doing even the simplest things on Blackboard are painfully slow.

And while there are a zillion options that aren’t likely to be used, user control over settings that matter (for example, defaults for question type or number of choices for multiple choice questions) is virtually nonexistent.

And students have other nightmares: At least a third of my students every semester get partly through taking a test, their computer or Blackboard crashes, and they have to start all over (after contacting me and waiting for me to re-set the test) because Blackboard ABSOLUTELY NEVER saves any work done. These are just two of endless examples I could list of how Blackboard is the ABSOLUTE WORST piece of online course management software that I can imagine anybody designing.

So why has Blackboard been so successful? Judging from their recent actions, basically the same way Microsoft has been: Marketing the hell out of their (inferior) product and coming up with any way they can to squelch competition.

Jeff, Blackboard sucks!, at 9:41 am EST on March 3, 2007

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