e-Literate

Present is Prologue

Author: Michael Feldstein

  • On Open Source, Open Standards, and Lock-in

    I’ve been meaning to comment on D’Arcy Norman’s frustrations with not being able to export Moodle courses to a common standard. He makes a very important point:

    Moodle happily ingests those formats, acting to absorb content into what then becomes an inescapable pit of quicksand. It’s a one-way trip. Content can check in, but it can never leave.

    If Blackboard did that, there would be villagers marching in the streets with torches in hand. The Blackboard SCORM import/export stuff might not be perfect, but at least they try to let people move content out.

    With Moodle, it’s currently a vendor lock-in proposition. The only saving grace is that the vendor just happens to be an open source project. But it’s still lock-in.

    Now, I don’t know any of the specifics around Moodle’s export capabilities but, in general, universities should insist on support for some standard export capability in any platform they adopt. We all know that the cost (in time and/or dollars) of moving content from one system to another is one of the major barriers to universities who would otherwise be motivated to switch. So unless you plan on sticking with your next platform forever, make sure you press your vendor or open source community hard about supporting some sort of content exit strategy. Heck, even if your school loves Moodle (or whatever) and plans on staying with it as long as, say, John McCain wants the U.S. to stay in Iraq, individual teachers move from school to school and, depending on their contract, are usually entitled to take their course content with them. That is, if they can get it out of the LMS.

    To be fair, supporting a robust, standards-based export facility is a hard problem, in part because we keep adding tools to our learning environment and each tool needs an import/export format to work in the standard. Nevertheless, basic support for export (focusing maybe on a handful of widely used tools) is far better than none.

  • Desire2Live

    There’s a very interesting interview of Desire2Learn CEO John Baker and General Counsel Diane Lank in T.H.E. Journal. It’s a particularly good read if you haven’t been keeping up on the details of the trial, but there’s also good stuff in it for people who have been following closely. For me personally, the biggest bit of news in the article was this from John Baker:

    $3.1 million is a lot of money, but it’s certainly not putting us in any financial jeopardy whatsoever. We’ve been very fortunate to have incredibly strong clients over the years, some of which pay almost that much money as an individual client. So we’ve been very, very fortunate to have good clients and good cash flow–no debt–we’ve got a very strong cash position. So we could pay that, without actually skipping a beat, and continue to be profitable this year and going forward. So from a financial perspective, it’s one of the concerns people have raised over [the course of the trial]. In the early days, $3.1 million was a lot of money for us. Today it doesn’t even come close to our R&D budget within our organization.

    So we’re quite comfortable; we’re still hiring a lot of people; we still intend on growing; we’ve obviously launched new products; and we’re actually going to be launching more later in the year. So we’re intent on keeping our innovative edge and [focusing on] the clients and client success.

    What’s interesting is we actually think that by all of our clients moving to 8.3, it’ll actually result in us having to support less versions of our application. Instead of being like Blackboard, where they’re probably supporting about 20 different versions of the application, at tremendous cost, we’re going to be supporting one, which will probably shave millions off of our costs [which will be applied to] new projects, new technology. We’re going to better support our existing clients. Or to focus our energy on the next version, the 8.4 version, or the 9.0. So we’re actually quite excited. We’re actually trying to find the silver lining in this and put ourselves in a better position than we were [in at the start of this]. Now, it’s not what we wanted to go through, but we can afford to pay it.

    And then, what might happen is that if we lose on appeal, there’s nothing else we have to pay. We’ve got that workaround put in place. So that one-time cost for us is something that we can absorb. Some of the things we’re going to be asking the judge to do is to reduce that as well, if he doesn’t eliminate it altogether.

    Because D2L is not a publicly traded company, we’ve had no visibility into their financial situation and how the suit was affecting them. If they can manage to get the injunction cleared up (particularly it is cleared up by the judge accepting their workaround), then they may come out the other side of this just fine.

    Also, they’re still cranking out product. Version 8.3 appears to be a fairly robust release with a lot more functionality than just the patent workaround, and they have a new and impressive sounding ePortfolio product. (I highly recommend Barry Dahl’s podcast interview with D2L’s lead product manager Kenneth Chapman.) Their management team must be really good, because I never would have predicted that a company their size would have the cash reserves to manage under this sort of financial burden and the focus to keep developing with this much distraction.

  • Reminder: Abstracts Are Due Soon

    For any of you who were thinking about submitting an article for the On the Horizon issue I’m editing on breaking up the monolithic LMS, please remember that abstracts are due by April 1st. (Details are in the original post linked to above.) Articles need not be heavily researched with tons of footnotes (although those are welcome, of course); I’m looking for practical, experience-based insights that could help teachers and universities that are interested in finding out about innovations that they can use or that might be coming down the road soon.

    Also, the April 1st deadline is just for a short abstract. You’ll have plenty of time to write the full article. So if you have an idea but haven’t done any work on putting a paper proposal together, there’s still time.

  • The Latest on the Edupatent Front

    As I noted in an earlier post, I’m traveling this week, so this post is going to be relatively short and light on analysis. If you’re trying to get a comprehensive picture of what’s happening, I’d start with the article in The Chronicle. (Incidentally, Katherine Mangan, who is new to the edupatent beat at The Chronicle, has been doing a good job of capturing some of the legal nuances that I haven’t seen covered in most of the other mainstream media stories.) Next, you’ll want to check with Al and Barry. Like both of these guys, there are some aspects of the ruling that I’m still trying to process. The judge came down with a pretty tough injunction against D2L along with some strict orders about how and when D2L must inform customers and prospects. The judge has placed an injunction on D2L regarding existing customers as well as new ones, which was more than Bb asked for. On the other hand, he also gave D2L a 60-day grace period to try to implement a work-around and pushed the two parties to negotiate a royalty settlement. You can find the rulings here and here.
    To my mind, there are two crucial details that we’ll find out in the short term. First, we have to see whether D2L’s work-around allows them to get a non-infringement ruling. In addition to being crucial for D2L and their customers going forward, this will be another indication of just how hard the patent is to get around and therefore how much liability risk other systems will face. Second will be the royalty settlement. If Blackboard gets a royalty anywhere close to the 25% that they are asking for, that will be very tough for D2L or any other competitor found to infringe. If outcome breaks for Bb in both of these outcomes, then Bb will effectively have a legal stranglehold on the product category.

    Update: D2L has a new post up on the orders. Here is their interpretation of them:

    The combination of these orders is consistent with Desire2Learn’s expectations from the hearing. On March 10, the Court discussed two activities: first, that Desire2Learn go to market as soon as possible with a product that would not infringe, and second, that the parties make a good faith effort to talk about what payment should be made for use of any infringing products that may still be in use. Blackboard has consistently represented that it intended for Desire2Learn to be able to serve existing customers; that it was seeking not an injunction, but rather a reasonable royalty, for those clients. The Court’s order for the parties to meet requires discussion about a reasonable royalty.

    Moreover, the 60-day stay period provides Desire2Learn with the opportunity to finalize and to implement its design-around, as we mentioned yesterday. At the hearing, the Court based its willingness to issue an injunction in part on the fact that we could easily, inexpensively and quickly design around the Blackboard patent claims. The product that we anticipate will include the design around – Learning Environment version 8.3 – will be available to all clients and prospects quite soon. Further, since the trial we have not, and will not, sell any product found to have been infringing.

    Finally, the stay period provides an opportunity for Desire2Learn to file its post-trial motions to limit the scope of the injunction and request other relief. For example, we intend to file a motion that, that as a matter of law, D2L does not in fringe the patent respect to clients hosted in D2L’s Canadian facilities. The injunction should be narrowed and damage award reduced to reflect this.

    In related news, Katherine Mangan has a report on the new edupatent suit (the one in which universities are being sued) that confirms the details that I had posted earlier. A lawyer representing the patent troll is quoted in the article as saying, “Nonprofits don’t need to worry about us chasing them. We’re an ally of theirs.” Recall that Bb promised D2L’s existing higher education customers would not be impacted by their request for an injunction. Clearly, children should not be allowed to play with loaded guns. Unfortunately, many of the parents are too busy loudly defending their right to bear arms while not paying attention to the fact that they left their own gun cabinets unlocked and in easy reach.

    We’ll have more here as soon as we can, including some analysis from Jim Farmer on the long-term big picture.

  • Traveling This Week

    I’m leaving tomorrow for the Oracle Higher Education Users’ Group Conference and will be gone most of the week. Anybody who will be there and wants to chat can find me in the audience at either of the SAIP presentations or at the Oracle booth on Tuesday from 2-3 PM. As for the blog, I’ll do my best to keep up on major developments, but I may be a little slower than usual.

  • The Other Shoe Drops

    Al Essa informs us that there is a new edupatent suit by a new player. The critical difference here is that this time universities are being sued. At the moment, the company asserting the patent has confined itself to suing for-profit universities (University of Phoenix, Inc, The Apollo Group, Inc., Capella Education Company, Laureate Education, Inc., and Walden University, Inc.). But there’s nothing that legally prevents it from suing any university. Nobody is exempt from liability exposure.

    I have argued from the very beginning of the edupatent mess that the problem is much bigger than one patent. Nor will this next one be the last.

    Here’s what I know so far, what the implications are, and what we need to do about it:

    (more…)

  • On Safety and Values

    Barry Dahl has posted some comments from John Baker regarding whether the possible backlash against Blackboard for the suit will have universities tar all LMS vendors with the same brush and move to open source instead. John made two points in response. First, John expressed faith in the educational community (based on feedback that D2L has gotten from their customers) that they will be able to see that the problem is vendors who assert patents for educational software in particular rather than proprietary software vendors in general. Second, he asserted that, if D2L succeeds in implementing a work-around to the patent that earns them a court ruling saying they no longer infringe, then they will be uniquely inoculated against the patent in a way that no other LMS vendor (other than Blackboard itself) could claim.

    I think John is probably right on both counts. In fact, he’s indisputably right on the second count. If D2L gets a non-infringement ruling at some point (which is not a given), and if the patent is not invalidated outright on appeal or by the USPTO, then D2L will be safer from the effects of the patent than any other platform going forward. While it’s true that Blackboard’s pledge is legally binding, it’s also true that the pledge is complex and the boundaries of it have never been tested in court. For example, what is the legal liability of support vendors for open source LMS projects? Nobody can say with certainty.

    On Baker’s earlier point, I see no evidence that university folk are rejecting vendors in toto. If bad feelings toward Blackboard because of the patent do result in substantial defections by Blackboard customers (also not a given), my sense from the educational community is that the relatively few people who view this as proof that all vendors are inherently bad are the ones who had already believed that to be true and see the lawsuit as confirming their current views. The majority of academics that I talk to see the root of the problem as being with one particular company and, possibly, with the US patent system. If anything, D2L may get a “good ethics” boost with some university decision-makers that could help them win in cases where the competition is a close one. I do think that the open source projects probably will benefit disproportionately from any flight away from Blackboard, but only because I think more institutions are willing to seriously consider adopting an open source LMS than there were a couple of years ago. It will be a level playing field with more viable players.

    Update: D2L has asserted in their latest court filing that the Blackboard pledge has some deliberately crafted legal holes in it:

    Bb may assert that the “patent pledge” insures continued competition by open source providers.. However, it appears that Bb has not truly surrendered its the ‘138 Patent against those entities. Bb has preserved arguments that so that it could revoke its Pledge and sue. For example, Bb has repeatedly stated that it does not know whether other companies infringe, yet knowledge of the act sanctioned is required for estoppel. See Young v. Amoco Production Co., 610 F. Supp. 1479, 1487 (E.D. Tex. 1985). Also, to prove estoppel any potential defendant must prove that it relied on Bb’s Pledge, and not on the advice of counsel as to its rights. See Hall v. Aqua Queen Manufacturing Inc., 93 F.3d 1548, 1558 (Fed. Cir. 1996). It would appear that Bb has carefully protected at least both of these escape routes.

    The real problem D2L faces in terms of customers is the current uncertainty about how far the suit will go. Universities tend to be highly risk-averse and the lawsuit understandably makes them nervous. What is lost in a lot of the discussion on individual campuses, I think, is that no platform is indisputably safe from this patent at the moment.