The Blackboard Verdict: Potential Impacts and Implications
Two days ago Wired Campus ran an article covering the verdict of the Blackboard vs. Desire2Learn lawsuit and my head has not stopped spinning since. Numerous other articles and posts have covered the outcome since then, but the Wired Campus one in particular really got the mental gymnastics going, specifically regarding the potential implications for the eLearning sector of higher education.
According to the article (”Blackboard Wins Patent-Infringement Case Against Rival Courseware Provider“):
“A federal jury in Texas ruled this afternoon in favor of Blackboard Inc., the nation’s leading online provider of course-management software, in its patent-infringement lawsuit against Desire2Learn Inc.”
Blackboard has been awarded a US$3.1 million dollar judgement in royalties and lost profits.
Potential Impacts
While this judgement certainly doesn’t bode well for Desire2Learn, it has also sent shockwaves across the sector with many people voicing anger, disgust, and concern for the future of online education. Calls for boycotts of Blackboard are common, as are at times guttural tirades against the company.
Frequently this includes accusations that the jury’s upholding of the patent gives Blackboard excessive control over the industry. This has in turn lead to speculation the verdict will have negative impacts to innovation and even additional legal challenges.
As Wired Campus continues:
“In particular, institutions that use open source systems designed by Moodle and Sakai have been concerned that an adverse verdict could shut them down, though Blackboard has promised to take no action against such users.”
Blackboard has shown itself to be ready, willing and able to mount legal challenges against other providers of proprietary Learning Management Systems (LMS), however the opensource movement had at least initially offered a sense of reprieve from the madness. Rumors that this may not be the case, and opensource alternatives could face challenges as well - whether true or just perceived - have caused a lot of confusion, uncertainty, and at times even fear.
According to Blackboard however, there will be no such challenges to opensource, providing certain criteria are met.
A lengthy section on their corporate website called the “Blackboard Patent Pledge”seems to seek to quell these exact concerns. The Pledge begins with the following statement:
“Blackboard hereby commits not to assert any of the U.S. patents listed below, as well as all counterparts of these patents issued in other countries, against the development, use or distribution of Open Source Software or Home-Grown Systems to the extent that such Open Source Software and Home-Grown Systems are not Bundled with proprietary software.“
Drilling down into the detail on the meaning of “bundled”, Blackboard indicates:
For purposes of this pledge, Open Source Software will be considered to be Bundled with proprietary software if any of the following are true:
- the Open Source Software and proprietary software are licensed or provided via a single agreement;
- the Open Source Software and proprietary software are sold together;
- the Open Source Software and proprietary software are provided together via a media (e.g., on the same CD(s));
- the proprietary software cannot operate without the Open Source Software; or
- the Open Source Software and proprietary software can both be downloaded from the same location.
At least on the surface, Blackboard seems quite clear about it’s position not to pursue opensource initiatives, devoting several separate paragraphs to the subject including:
Opensource intiatives
“..Blackboard hereby irrevocably agrees not to assert the listed U.S. patents, as well as all counterparts of these patents issued in other countries, against the following open source initiatives: Sakai, Moodle, ATutor, Bodington, Elgg, Lon-Capa, Claroline, Connexions, Dokeos, Learnloop, Interact, Segue, Whiteboard.”
Institutions that implement opensource LMS’s
“To promote the use and development of Open Source Software, Blackboard agrees that it will not assert the listed patents against any institution using or providing Open Source Software.“
and also
“Suing an institution to enforce our patent would not be in Blackboard’s interest as it would generate intense dissatisfaction among Blackboard’s clients and potential clients. Blackboard has never sued a school, museum, or library and depends on the goodwill of the academic community for our survival. “
That being said, they don’t say that won’t ever sue an institution:
“Blackboard cannot promise never to sue a school, museum or library to enforce its patent without placing at risk critical rights and protections afforded under this patent. Specifically, nothing in this pledge or FAQ should be read as implicitly or expressly granting a license to practice any patented invention, and Blackboard reserves the right to sue any entity not otherwise covered by this pledge for inducing or contributing to such school’s infringement.“
Potential Implications
On Open Source Implementations
In terms of the potential impact upon the landscape, the green-light effectively given to opensource initiatives increases their profile almost immediately. Particularly in Australia, institutions are already facing a financial crunch in which fewer and fewer resources are expected to support more and more services. Open source has therefore already begun to increase in recognition and consideration for this reason; Blackboard’s hands-off promise can only serve to shed opensource alternatives in an even greater light.
On Personal Learning Environments (PLEs)
Secondly, as Brian Lamb discussed on Twitter:
“@mbogle - I am oddly encouraged by this Blackboard patent. What clearer demonstration of the bankruptcy of this model is possible?
Initially I didn’t quite understand what Brian was driving at, however I quickly began to see his logic when considering the implications of the verdict on the emergence of Personal Learning Environments.
As Wikipedia explains:
“Personal Learning Environments are systems that help learners take control of and manage their own learning. This includes providing support for learners to
- set their own learning goals
- manage their learning; managing both content and process
- communicate with others in the process of learning
and thereby achieve learning goals.”
This short definition immediately puts the concept of the PLE in direct opposition to that of the LMS. PLE’s are learner driven, flexible and personal; LMS’s are centralised, instructor-driven, exceptionally rigid and managed.
It is conceivable that the Blackboard verdict will leave increasing numbers of people looking for a new model - be it out of concern for the fate of the LMS, discontent with its relative rigidity, or even disgust with Blackboard. This may prove the perfect opportunity for a new generation in online learning to take root and grow, founded on the inherent freedom and flexibility of the PLE.
In this sense the PLE could prove to be an even greater threat to Blackboard’s empire than Desire2Learn ever was, because it is one that largely eliminates a reliance on one mandatory technical framework, and importantly places a far greater sense of control in the hands of instructors and students. It also renders Blackboard’s patent and model effectively useless, because in PLE’s, the more invisible the technology, the better it is.
References:
- “Blackboard Patent FAQ“, Blackboard corporate website
- “Blackboard Wins Patent-Infringement Case Against Rival Courseware Provider“, Wired Campus, 22 February 2008
- “Blackboard Inc.“, Wikipedia, information taken 24 February 2008
- “Jury rules against Desire2Learn in patent case“, The Record.com, 22 February 2008
- “U.S. Patent 6,988,138 (Internet-based education support system and methods)“, USPTO, 17 January 2006
