e-Literate

Present is Prologue

Author: Michael Feldstein

  • More on Fairness

    Stephen Downes thinks I’m being too nice to Blackboard (which is the first time I’ve heard that particular criticism) by giving them too much credit for answering my questions during their webinar. He says it was all “just a needed warmup for court.”

    I’m sorry, but that doesn’t make any sense.

    To begin with, I didn’t ask a single question about the legal validity of the patent. In fact, the questions I did ask would probably not be allowed in court, since they are immaterial to Blackboard’s claims and D2L’s counter-claims. Furthermore, even if they were material, why on earth would Blackboard telegraph its answers in advance to Desire2Learn? If Matt Small wanted a “warmup”, he’d do what every other lawyer in the world does. He’d bring in a team of his own people and run a moot court privately.

    I’ve been as hard on Blackboard as anyone. But I like to think that my criticisms are fair and supported by fact. It does none of us any good to demonize big corporations in general or even Blackboard in particular. If we want them to behave better, then we have to be prepared to work with them and recognize positive behavior–even when that behavior is motivated by self-interest. Matthew Small let me ask as many questions as I wanted in a very public forum, knowing that I would (and did) use his answers against him. He and the moderator could have cut me off at any time with ease, as anyone who has moderated a webinar knows. But they didn’t. I am confident that this was not any special concession to me, either; they were ready to take all comers and answer as many questions as were asked. Was this behavior self-serving on the part of Blackboard? Yes, in the sense that they know that stonewalling their critics surely won’t shut us up while communicating with us just might lead in a positive direction somehow. Honestly, I’d like to see more of that particular kind of self-serving behavior. Hence, I will continue to go out of my way to acknowledge it, praise it, and advertise it whenever I see it.

  • IMS Supports Digital Opportunity Investment Trust Legislation

    I am delighted to note that the IMS has endorsed the Digital Opportunity Investment Trust Act and urged its members to support it. As I described in a previous post, this legislation would create a trust that would generate a billion dollars annually–money that would be spent on the creation of non-proprietary digital educational content and digital educational technology. This is a game changer in every way. Kudos to IMS CEO Rob Abel and the IMS board for coming out strong for this very important legislation.

    Please do your part too and, if you are an American, write your Congressperson and Senators.

  • Oracle, Sakai, and the LMOS–Part 1

    It’s been a while since I’ve written a post about the notion of a Learning Management Operating System (LMOS). There’s some news out of the Sakai world that’s as good an excuse as any for doing returning to it.

    Apparently Oracle, with the help of Unicon, is going to do quite a bit of work on Sakai in the form of something they call their “Academic Enterprise Initiative” (AEI). According to Oracle’s white paper on the topic, the work includes (but is not limited to) the following elements:

    • Building batch and real-time integration between Sakai and Oracle’s student information system (SIS)
    • Creating flexible integration between Sakai and Oracle’s teaching-related products (most notably their portfolio and gradebook).
    • Making it possible to swap in Oracle collaboration applications (e.g., their discussion forum, calendar, chat, etc.) to replace the analogous Sakai tools
    • Presenting the whole thing through Oracle portal or any other JSR-168-compliant portal (like uPortal, for example)
    • Creating a student data hub that allows for disparate applications to share data while providing a single “source of truth” to avoid duplicate and conflicting content versions

    There’s a lot here to unpack. In this post I’m going to look at some of the specifics of what Oracle has in mind and why this advances the LMOS cause significantly–even for those institutions that will never use a single Oracle product. In a follow-up post, I’ll drill down into some of the specifics of Oracle’s approach and their implications for teaching and learning.

    (more…)

  • Once Again, IBM Sets a Good Example for Blackboard on Patents

    The New York Times has a piece out today on IBM’s latest responsibility in patenting initiative. It seems that Big Blue will advertise its pending patents. Some details:

    The policy, being announced today, includes standards like clearly identifying the corporate ownership of patents, to avoid filings that cloak authorship under the name of an individual or dummy company. It also asserts that so-called business methods alone – broad descriptions of ideas, without technical specifics – should not be patentable.

    No blind-siding competitors with surprise lawsuits from submarine patents? No trying to own broad ideas (like…oh, I don’t know…multi-role, multi-class educational groupware, for instance)? How refreshing!

    Note that IBM is taking this step despite the fact that it will cost the company:

    Patents typically take three or four years after filing to be approved by the patent office. Companies often try to keep patent applications private for as long as possible, to try to hide their technical intentions from rivals.

    “Competitors will know years ahead in some cases what fields we’re working on,” said John Kelly, senior vice president for technology and intellectual property at I.B.M. “We’ve decided we’ll take that risk and seek our competitive advantage elsewhere.”

    Nobody can claim that this is a throw-away for IBM–that it is donating patents that it has already written off as worthless. This policy goes for all their patent applications. Why are they doing this? Because they have come to believe the current environment of patent litigation damages innovation:

    “The larger picture here is that intellectual property is the crucial capital in a global knowledge economy,” said Samuel J. Palmisano, I.B.M.’s chief executive. “If you need a dozen lawyers involved every time you want to do something, it’s going to be a huge barrier. We need to make sure that intellectual property is not used as a barrier to growth in the future.”

    That’s it in a nutshell. That’s the problem with the Blackboard patent. If you need a dozen lawyers involved every time you want to develop educational software, it’s going to be a huge barrier. IBM has it right.

  • Blackboard Conference Call, Part II

    As I said in my previous post, I was allowed to ask quite a few questions of Matthew Small in Blackboard’s patent Q&A webinar tonight. I chose not to ask any regarding the scope or validity of the patent, since I saw no benefit in crossing swords on those issues. Instead, I focused my questions on the potential for broader harm to the industry. Matthew Small took great pains to emphasize that Blackboard’s intentions are narrowly focused on D2L and that this patent is not, in his words, “a game changer.” I wanted to find out if he really believed that, if he can defend it, and if he knows how strong or weak his defense is. My conclusion? My gut is that he believes it. I’m confident that he can’t defend it. And I think on some levels, at least, he knows that his defense is weak.

    In fairness, all of what follows is paraphrase. I don’t have a recording or transcript of the conversation. I invite other participants (including Mr. Small) to correct the record if I get anything wrong or out of context.

    (more…)

  • Blackboard Conference Call, Part I

    Tonight I listened in on the last in Blackboard’s series of Q&A webinars on their patent. To their credit, they let me ask all of my questions. Matthew Small even extended a personal invitation to me to call him with any follow-up questions. I was very happy with all of that. I was far less happy with their answers. But that’s the subject of my next post. For this post, I want to acknowledge what I believe was a genuine effort at outreach on Blackboard’s part and respond in kind. I want to make clear why I could accept Matthew Small at his word regarding Blackboard’s intentions and still conclude that this patent litigation must not stand. I want to say to Mr. Small and the Blackboard management team that this isn’t personal. (more…)

  • Inside Baseball and the Blackboard Patent Fight

    Correction: I have to apologize for sloppy reading. While my facts pulled from the NYT article are accurate, I should have spent a little more time reading the blog post that referred me to the article. Michael C. Smith, a lawyer in the district who was quoted in the article, believes that the claims are misleading. After digging into the numbers and the context behind the assertions in the article, his own conclusion appears to be that, at least in the last year, the performance of the district is very closely in line with the rest of the nation. If true, that would still leave the speed with which the cases get heard as a strong advantage and, perhaps, a reputation of being plaintiff-friendly that encourages plaintiffs to file there and defendants to settle out of court. At any rate, once again, apologies for posting before looking ath the additional context that was right in front of my face.

    You may be wondering why I haven’t posted anything about the recent flurry of court documents from Blackboard and D2L. The simple answer is that I don’t have much to say about them. We’ve entered a phase in which there is a lot of jockeying going on–efforts on each side to win the favor of the judge, efforts to win the favor of the jury, efforts to force the other side to show their hand early, and so on. To give a good blow-by-blow analysis would require me to go way beyond my legal knowledge, which is already stretched about as far as I can take it in good conscience.

    That said, if you want to learn a little more of the context that drives some of the inside baseball, you might be interested in reading a long article in today’s New York Times about the docket in which Blackboard has filed suit.

    Here are a few details:

    • Seventy-eight percent of patent cases that go to trial in this district are found in favor of the plaintiffs. This contrasts with less than fifty percent found in favor of the plaintiff in New York and a fifty-nine percent nationwide average.
    • The docket has a history of providing “Texas-sided verdicts to winners.” For example, the court recently awared a $73 million verdict in the TiVo/EchoStar patent suit.
    • For these reasons, 95% of defandants in patent suits in this district settle out of court before ever going to trial. (Think about this one for a moment. Given this amazing statistic, how would Blackboard have expected D2L to respond to the suit? Those who have claimed that D2L had to defend themselves lest they become perpetually victimized don’t understand how the system really works.)
    • Patent cases are heard and resolved much more quickly in this district, averaging 27 months as opposed to 4 years or more in other districts.

    The article is well worth reading in its entirety. Very revealing stuff in a lot of ways.

    Found via Michael C. Smith’s East District of Texas blog.