Higher education groups remain concerned about Blackboard’s current U.S. patent and enforcement plans
In a deal worked out with higher education groups, electronic courseware vendor Blackboard today promised not to enforce its controversial patents against open source and homegrown software systems. http://www.networkworld.com/news/2006/111306-blackboard-patent.html
In a deal worked out with higher education groups, electronic courseware vendor Blackboard this week promised not to enforce its controversial patents against open source and homegrown software systems.
The pledge is intended to quell the anger and outrage which flared up last year after the Washington D.C. software vendor, the leader in course management software for education, announced it had been awarded U.S. patents for parts of its software. Course management applications are widely deployed in education; many are homegrown, and more recently, open source projects, such as that sponsored by the Sakai Foundation, are emerging.
Blackboard, however, reserves the right to enforce its patents against commercial software rivals, and says that one company, Desire2Learn, is infringing. Desire2Learn denies the allegation, and has filed a counterclaim in the federal case, alleging “intentional misconduct” by Blackboard officials in failing to notify the U.S. Patent and Trademark Office (USPTO) of “prior art” — ideas and inventions by others that could undermine a patent’s claims. That case is scheduled to start trial a year from now.
Reactions to Blackboard’s pledge this week varied widely, indicating there is still widespread skepticism if not hostility toward Blackboard.
Two key higher-education groups, EDUCAUSE, an influential group of IT professionals, and the Sakai Foundation, which coordinates the Sakai open source course management software, worked with Blackboard for two months on the pledge. Both groups had been highly and publicly critical of the original patent award. While welcoming the pledge, they say it “introduces complexity” and doesn’t resolve questions about the patent’s validity.
The boards of directors of the two groups crafted a carefully calibrated joint statement. The patent pledge is “a step in a more positive direction for the community, to the extent that it offers some comfort to a portion of the academic community that uses open source or homegrown systems.” The document did commend Blackboard for “the inclusion of pending patents, the clarification on the commercial support [question], customization, hosting or maintenance of open source systems, and the worldwide nature” of the pledge.
But both groups remain concerned about Blackboard’s possible actions against vendors that bundle open source and proprietary code. “We remain concerned that this bundling language introduces legal and technical complexity and uncertainty which will be inhibitive in this arena of development,” reads the statement.
Finally, the groups repeated their conviction that the patent is “overly broad, and that the U.S. Patent and Trademark Office erred in granting it.”
For some, it’s the patent itself that’s the critical issue. “The central issue remains,” says Frank Lowney, director of Web Enabled Resources GCSU Library, Georgia College & State University, in Milledgeville. “The USPTO has agreed to review the patent and so we need to see what comes of that process. This is but one of a mounting number of challenges to the very idea that software is patenable in this fashion.”
In its own statement, Blackboard said it commits to not to assert its current U.S. patent, or any pending patents, “against the development, use or distribution of open source software or homegrown course management systems anywhere in the world, to the extent that such systems are not bundled with proprietary software.” The pledge is “legally binding, irrevocable and worldwide in scope.”
The pledge also covers the ecosystem of tech support, systems integration, hosting, and managed services companies that work with schools and universities, says Matthew Small, Blackboard’s chief legal officer. “These companies make open source [software] more available to schools that don’t have the resources for this [on their own],” he says.
Users can make use of any and all code developed by a list of open source projects, including ATutor, Bodington, Elgg, and Moodle, in addition to Sakai. They can even “mix and match whatever code they want,” both proprietary and open source, without fear of infringing Blackboard patents, Small says.
Proprietary software vendors can offer open source licensed versions of their software without fear of infringement; they can even offer two versions of the product, and integrate them for a customer, and still be covered by the pledge, Small says.
But Blackboard will not permit rivals to add a few bits and pieces of open source code to their proprietary software and then claim they are protected by Blackboard’s promise.
What if a rival offers a licensed commercial product that is substantially based on open source code?
“We’re focused on the end license,” Small says. “If the end license is open, then it’s covered by the pledge. If it’s partly open, and partly proprietary, it is not covered.”
Desire2Learn CEO John Baker says Blackboard is trying to force unprecedented restrictions on the entire education community, including proprietary software vendors. “It seems to us that Blackboard is trying to dictate how the education community can build their education platforms and what business models they can attach [to those platforms],” says Baker. “Their pledge doesn’t let open source [developers] and or us develop freely, and in a fair, competitive environment.”
Baker argues that education software of all kinds involves a “tremendous amount of collaboration” among nonprofit and for-profit entities. The pledge threatens that collaboration because Blackboard won’t apply the pledge to various ways of combining or bundling open source and proprietary software.
“When we talk about a bundle, we talk about how it’s provided by a commercial company,” counters Blackboard’s Small. “We’re not talking about what schools can do. They can do whatever they want. . . . We gave up rights [with this pledge] to benefit the community. I don’t see how giving up our right to enforce a patent widens the application of the patent, in any way.”
But the pledge seems to create gray area, which promises only more conflicts in the future, suggests Lev Gonick, CIO at Case Western Reserve University in Cleveland, Ohio.
“I believe that over the next five years, we are likely to see significant tension associated with this pledge,” he says.
A blend of open and proprietary code is a hallmark of many community and open source software projects, he says. Further, today’s open source course-management offerings likely will evolve from autonomous systems to systems more tightly integrated with applications from an array of software vendors. At the same time, Blackboard will add new layers of functionality and code, perhaps including more open source code. Eventually, says Gonick, these trends will lead to confrontations.
“How Blackboard and the higher-education community respond to that probable scenario is not a matter of ‘if’ but rather ‘when,’” he says.
“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,” says Gonick, “but rather its ability to demonstrate a true commitment to innovation and responsiveness to the higher-education marketplace.”
