I note with satisfaction that Eben Moglen’s keynote speech [MP3] and debate with Matthew Small [MP3] have already been reported and commented on in a number of places. (See, for example, Seb’s analysis.) This pleases me for two reasons. First, it means we have developed a healthy community response mechanism to make sure we are all informed of future patent shenanigans. The second reason it pleases me is because, frankly, I’m sick of talking about nothing but the patent fight. The Sakai conference, for example, was excellent, and there were many good conversations that I’d much rather blog about (and will blog about in due course). That said, since I was actually in the room for both presentations, I feel obliged to give my own gloss on them.
Moglen’s keynote was fascinating. The guy is clearly brilliant. While I didn’t agree with everything he had to say, I agreed with much of it and learned much from it. The talk is well worth listening to and well worth sharing with others. Alas, I cannot say that I feel the same way about the debate between Moglen and Small.
Before I characterize my own feelings about the debate, let me first say that there was a very wide range of opinions from the other people in the audience. (I made a point of soliciting the opinions of a lot of people afterward.) On one end of the spectrum, there was quite a bit of frustration and anger with Blackboard. While Matt Small’s tone and rhetorical posture have improved, the fact is that he brought no new concrete offers of resolution from his company. Some of the most frustrated in the audience seemed happy to have Moglen knock Small down a few pegs. On the other extreme, some audience members were offended by Moglen, describing him variously as “a bully”, “a pimple”, and “our side’s version of Rush Limbaugh”. If I had to estimate the center of gravity of the crowd (not an easy thing to do), I would say it fell somewhere in the middle but leaning in the direction of Moglen having crossed a line. And I must say that, even though I agreed with Moglen on substance most of the time, and even though I continue to be frustrated with the lack of concrete and constructive proposals for resolution from Blackboard, I found that my own sympathies went to Matt Small.
If you are even an occasional reader of this blog then you probably know where I stand on the patent fight, but let me reiterate my basic position for the sake of clarity:
- Blackboard’s patent is harmful to the educational community both in itself and in the precedent it sets. If the company does not agree to stop behaving as an IP agressor then the patent must be invalidated and the community must be prepared to take similar action against future acts of patent assertion.
- This fight is important enough that we must stand firm and invest our energies in vigilance, even though it is in many respects a distraction from the important work that we are trying to get done to advance the cause of education.
- In fighting Blackboard, we must also recognize that we will likely need their help both to solve the larger edupatent problem and to address other pressing concerns facing the educational community. Therefore, in taking whatever actions are necessary to ensure our self-defense, we must be careful not to demonize those that we are fighting.
- Even if it were not true that there are strategic reasons to treat our opponents with dignity, there are still moral reasons to do so.
Moglen violated the last two of these four tenets through gratuitous mean-spiritedness and through rhetoric that was so apocalyptic in its repeated references to nuclear war that it was hard not to think of Dr. Strangelove. There was no value in these excesses, particularly when he was amply able to make his case on substance. Mr. Moglen was wrong on both moral and strategic grounds. Let me address the former violation first.
I am a teacher. I am the son of two teachers, the brother of two teachers, the husband of a teacher, and the father-in-law of a teacher. Most of my closest friends are also teachers. And if there’s one thing I know about teaching, it’s that you can’t do it in an environment that does not respect the fundamental sanctity of basic human dignity. The rule is simple: Every day that the kid shows up for class, he gets another chance. That doesn’t mean that you let him get away with bad behavior, but it does mean that every punitive action is paired with a renewed effort to separate the behavior from the person and to invite respectful dialog in the interest of resolution. To do otherwise is as antithetical to our collective endeavor as is patenting educational software. It’s just wrong. And the bottom line is that Matt Small showed up. He was not, by the way, the only Blackboard employee who came to the conference seeking to build a relationship. He and his colleagues came, on short notice, by invitation of the Sakai Foundation Board. He was an invited guest in our home, and he deserved to be treated with respect.
On the issue of strategy, let’s be clear that Mr. Moglen’s goals may not be the same as ours. Personally, I am fighting for education. Mr. Moglen, in contrast, is fighting for what he calls “Freedom”. He has suggested that there is no conflict between these two goals but, at the same time, has also made it clear that he intends to pursue his current course of action even if the Sakai Foundation were to fire him. He shows no more interest in dialog and compromise with us than he does in dialog and compromise with Blackboard. So, while he may think of himself as fighting for the interests of education, he is only fighting for them as he sees them. He is fighting for his own principles, which he believes will benefit us in the long run. That is in no sense the same as if he were fighting for us or even with us.
Mr. Moglen and the SFLC believe that they have a stake in the outcome of the Blackboard patent fight. It is their right to see it that way and to take whatever means they deem necessary in defense of their principles, just as we are doing and just as Blackboard is doing. But I think it is important for the Sakai, Moodle, and ATutor communities to clarify their own positions in relation to the SFLC. It is clear that the Sakai Foundation hired SFLC to advise them on the patent situation. It is somewhat less clear that Sakai, Moodle, and ATutor asked SFLC to file the ex parte re-examination request. While the press release clearly characterizes it this way, none of these three parties are named in the re-examination request itself. Only SFLC is named. I have received differing accounts on why this is the case from different Sakai Board members. And I think it was very unclear the degree to which the Sakai Board intended Moglen to represent the Foundation in the debate with Mr. Small. I spoke with several board members after the fact who indicated that it was not their intention that Moglen represent the board, and that they were hoping the conversation would be an educational dialog between two experts in the field rather than the Celebrity Death Match that it turned out to be. Given Mr. Moglen’s strong commitment to his own cause, my personal advice to the leadership of the Sakai, Moodle, and ATutor communities is to think very carefully about how to manage and characterize their relationships with the SFLC going forward. In the meantime, I wish to make one point perfectly clear:
Eben Moglen does not speak for me.
“And if there’s one thing I know about teaching, it’s that you can’t do it in an environment that does not respect the fundamental sanctity of basic human dignity. The rule is simple: Every day that the kid shows up for class, he gets another chance. That doesn’t mean that you let him get away with bad behavior, but it does mean that every punitive action is paired with a renewed effort to separate the behavior from the person and to invite respectful dialog in the interest of resolution.”
Bravo Michael. Your comments about this talk could apply equally well to some of the vitriol that’s been expressed online about this patent. This is in no way to defend the patent or those who assert it. But demonizing them and reifying their otherness is not a path to understanding, reconciliation or change, in this or any other conflict.
I was at both of the Sakai Conference events, and I whole-heartedly agree with the recommendation to listen to Eben Moglen’s keynote message from Wed morning. It is insightful.
I spoke to Michael at length on Thursday evening, and we discussed his concerns (expressed here) regarding the style and tone of Eben in the Q&A session. Perhaps there is value to distinguish Eben’s tone and rhetoric (clearly harsh and blunt in style) from the message. I didn’t find his message in error…we have asked for clear answers to many of BB’s ambiguities, e.g., “we have no intent at this time…” “we do not wish to harm the open source community…” etc., and Blackboard has multiple other patents in the pipeline on things like portals and commerce systems that will be the next threat to repeat this sorry exercise all over again for the next patent. Eben laid the ugliness of this threat bare before our eyes. We all wish it wasn’t so, but the evidence is clear and compelling that the values of our community are not currently aligned with the corporate actions of this company.
Thus, let’s not have our sensitivities so shocked that we fail to realize this patent *is* having very real and purposeful negative effects on open source adoption and BB competitors right now. This situation of a highly suspect patent and a choice to purposefully exploit it to shift the market is a situation of Blackboard’s making. I remain *hopeful* — perhaps naively so — that it will also be a situation of Blackboard’s own rapid resolution so that we can *all* get back to more important matters.
It was a great conference overall, and there was MUCH to work on that is of great value to our communities.
I suppose a review of recent history is in order:
– I was the person to write the community’s first plain English translation of the Blackboard patent.
– I was the person who started the Wikipedia prior art page.
– I have been at the forefront of those who have kept the patent issue in the public eye through this blog.
– I have been out in front rebutting Blackboard’s arguments in the media.
– I have personally gathered prior art documentation from my former employer and sought out documentation from others.
My position on Mr. Moglen’s performance is not about shocked sensitivities. It is about exactly what all these efforts have been about–namely, what is right and what is in the best interests of students and teachers. I believe you have the same interests at heart, Brad. But it does not behoove the Sakai board to ignore the inherent tension between Moglen’s goals and the Sakai community’s. Nor does it behoove the board to dismiss the reactions of it’s constituents as nothing more than “sensitivities,” whether shocked or otherwise. I was far from the only person in the room who was troubled by what was said.
No, you weren’t the only person in the room troubled by the tone and temper, no matter how much we may have agreed with Eben on the substance. I caught myself wondering in particular about our European guests, to whom both American patents and American litigious froth are both strange birds. But, as Eben gently reminded another blogger (I can’t find the link again right now, forgive me), contentious legal maneuvers are a matter of theater, and I’ll trust his expertise that far.
When Eben feels the tactical need to play bad cop, I don’t feel that he speaks for me as a community member either, but he does act for me: this is why his help was sought, and this is why I value his influence on the whole affair. Meanwhile, I look forward to returning to the task of shaping our own positive message, free of the theatrics.
I think this is what the Sakai board is eager to do, and I think it another mark of rhetorical excess (though perhaps on a less violent scale) to suggest that the board is ignoring the disquiet caused. In fact, we talked about it with institutional representatives during the retreat session later that week, where the general feeling seemed to be that context served to palliate. But even if it doesn’t, what is the best answer now? I’d submit that it’s moving ahead with the positive portion of our work, reclaiming that as our message, while yet not backing away from the conflict that our convictions have driven us to.
Clay, my comment about the board was in the context of another comment earlier on this thread and was in no way intended to be a blanket condemnation of the board’s position as a whole. To the contrary, I tried to indicate in the parent post that the board members I had spoken to seemed well aware of the issues raised by the debate. I apologize if I gave any other impression.
Further, I appreciate the lines you are drawing; they are exactly the sorts of distinctions that are appropriate for the moment. I don’t want to make a bigger deal out of one lunch hour than necessary; nor do I want to demonize Eben. But I *do* think that this incident can be a useful catalyst by causing us to ask (or re-ask) the hard questions. One, as you suggest, is whether we need to return more of our focus now to our core mission. Another is how to balance cooperation with SFLC as fellow travelers in the patent fight against real and potentially serious divergences in our goals and methods.
While the manner of presentation at lunch may have detracted from the debate, I would prefer to keep my eye on the substance of the situation: Blackboard has threatened the open source community, and the actions of the SFLC are aimed at eliminating that threat. Eben’s morning talk was indeed inspirational, and placed our opposition to monopolistic practices and anti-competitive actions squarely in the best traditions of the American character. I would agree with the attendee (http://mattclare.ca/wordpress/2006/12/06/bb-v-sflc-sakai-moglen-rational-thinkers-et-all/) who is reassured that the free and open source community has such an adamant supporter in the difficult fight before us.
As a teacher of argumentation analysis in a previous life, I was personally incensed at the corporate speak that Small engaged in, with all its dissimulation and misdirection, all the smoke and veiled threats. I am appalled that statements like “Blackboard will avail itself of whatever law is available to it” comes so easily and unreflectively from spokeperson’s like Small. We all know that there are bad laws that do not deserve our support, and that we should not use. Why are we not scandalized by this particularly raw bit of corporate amorality? But, rather than focus on this, I looked to see if there was any new substance to the talk. I found none. Blackboard is still intent on pursuing the use of a bad patent to reduce competition and innovation in the area of educational software. I think the community is best served by focusing on the substance here as we move forward.
Again, I think it’s fair to say that I have been one of those who has consistently focused on substance of this fight. But since you brought up the best traditions of the American character, Joseph, let’s consider for a moment what it means to live up to the ideal of the City on the Hill. How we comport ourselves matters regardless of the behavior of our adversaries.
I appreciated Clay’s balanced position on the incident. I don’t think it’s too much to ask that we pause and reflect on our own actions for a moment, and on how we can do better, even as we place those actions in proper proportion to the other issues we face.
You are of course right that it is always valuable to reflect on our own actions and arguments. Indeed, the denial of reflection is the end of reasoned argument. In that spirit, let me take up a couple of the points you make.
1) you say: “In fighting Blackboard, we must also recognize that we will likely need their help … to solve the larger edupatent problem…”
I disagree here. BB has made it clear that they are not interested in this debate at all. They are going to “avail themselves of any law available,” and have shown that they will only move from their present course under considerable duress. And I don’t think we need BB to move our community forward in contributing to solutions to patent threats like BB’s. We can do that in concert with like-minded free and open source organizations, and those motivated by a desire for a level playing field for effective competition. It would be better, yes, if we could all work together, but given the record, we should neither expect this nor hold it out as a requirement of success. What BB _has_ contributed to the larger project of patent reform is provide us with a particularly egregious example of bad behavior enabled by bad law.
2) You say: “…[Eben] shows no more interest in dialog and compromise with us than he does in dialog and compromise with Blackboard.” In my experience of working with Eben this is simply not true. And there is nothing wrong here, btw, in not wanting to compromise with someone so clearly in the wrong. But, as to the dialog component of your concern, perhaps Eben’s response to Dave Shields is helpful. Eben said there: “Thanks, Dave, I really appreciate your thoughtfulness and
consideration. Your criticisms of the harshness of the role I played this afternoon are well-taken, and my only plea in defense is that lawyering in contentious circumstances is an exercise in theater. Even gentlemen sometimes have to talk a little tougher than they really are in private life. Your forbearance is generous.
All my best,
Eben”
Regarding Mr. Moglen’s willingness to compromise, you have more experience with him than I. If I am wrong, then I am delighted to be wrong. All I have to go on is what I have heard and what I have read. I have already said what I think about what I heard last week. What I have read, on D2L’s patent blog, is that the SFLC declined their request for a copy of the patent filing. Now, as I have said many times before, I am not a lawyer. Perhaps there is some valid legal reason to deny a party–a party on the same side of this fight, no less–access to a filing that has already been made and will be accessible to the general public within days. My admittedly naive understanding is that sharing such filings under such circumstances is a common courtesy that even opposition lawyers typically extend to each other.
Mr. Moglen’s reputation is not exactly tabula rasa. He is well known to be a purist. (See GPL3.) There is nothing wrong with being a purist; in fact, it can be admirable. But it is always important when dealing with a purist to have a sense of how pure he may judge *you* to be and how that judgment may affect his actions.
As for Bb, I see no reason to walk away from attempted dialog. For one thing, the problem we face is far bigger than this patent or the next. We are talking about dozens or even hundreds of patents that can impact education. We are talking about a long, hard fight to reform an entire system. And that’s just the fight that we *didn’t* plan to take on. Then there’s the fact that we have inadequate standards for building quality online learning environments, that we have almost no tools with which to measure educational success within those environments, that we have a chronic funding shortage which requires new and creative ways of working together, and so on. I am not prepared to turn my back on any potential ally in any of these fights, particularly when all that is required of me to keep the door open is that I speak softly and carry a big stick (another fine American tradition that we seem to have forgotten in recent decades). The courtesy that I ask we extend to Bb is no more than we would extend to any recalcitrant eighth grader. It costs us nothing. It may also buy us nothing but, then again, it may buy us something. And we can go to bed at night knowing that we have made a small contribution toward creating the civil society that we all want to live in. Why would we behave any other way?
This is incredibly easy to resolve. All I ask is that we acknowledge some unfortunate excesses of rhetoric that occurred in the heat of the moment, make a reasonable effort not to repeat those excesses, and commit to having open (i.e., public) conversation with the community in the future about the healthiest way to maintain a relationship with the SFLC should it become clear that we will continue to be fellow travelers in this fight. Then we should move on to the problems we all would rather be talking about with all reasonable haste.
Let’s see, where to begin…
Rhetorical excesses were committed. And they may be propagating, as your calling Moglen a “purist” might be a case of. While I prefer an Apache style license, and not a GPL one, in many cases, I can see the value of GPL licenses and the social contract they embody. I also see reason in not allowing someone like Tivo to circumvent the intent of such open source software by stopping it from running on a box I own. Eben has a very well thought out, reasoned position here, and loads of info, and, btw, is not on the extreme in this particular fight. To dismiss his intellectual effort here as “purist” helps no one get a handle on the tough issues here. To imply that I should be afraid of being judged by such a “purist” is a further rhetorical move that is equally unhelpful. I disagree with Eben on things. In fact, I have disagreed with him on various things as we have gone along. We’ve talked such disagreements over. Sometimes we reach a common point of understanding, sometimes not. So it goes. I was never afraid of being judged “unpure,” a weird fear to labor under.
I also have not meant to advocate “walking away” from BB. I said we do not need them to help us solve this problem. I doubt they can help us. They are too committed to their proprietary position and the use of this bad patent to support it. I further think on this issue we can do just fine ourselves. All the other places for talking with BB and working with them are just fine, to the extent we find areas of mutual interest. Standards are one such area, and IMS is one such place, even though the trust that such collaborative development is based on has been severely tested by BB’s actions with this patent. Can we be sure in the future that they will not pop another patent on us, after we have spent time and effort to build some standards-based code with them, which might be claimed as infringing? There are procedures that are supposed to insure disclosure in these cases, but they haven’t really worked here in the way we expected. Expectations of trust have been violated and will take a while to be rebuilt. I would give no one a free pass in a case like this.
As for looking to BB to help solve problems of educational evaluation and chronic funding shortages, well, perhaps, but I would suggest we not bet too much on that gambit.
Analogies are tricky things, aren’t they? Do you think BB is an 8 year old analog? Is it discourteous to call you on misuse of such rhetorical tools? We extend courtesies to children that we don’t extend to adults, and that we certainly don’t extend to corporate representatives who refuse to answer straight questions. It _does_ cost us something when we can not employ the candor necessary to point out disingenuous talk. Don’t you think Small was avoiding simple statements in favor of vacuous assertions of good intent? Is that sort of rhetorical run-around so much more preferable to analogies of threats that some perceived as overstated? I should answer my own questions, of course, though you can probably guess how I’ll come down. I dislike both approaches, and in an environment of undistorted communication, where both parties were pursuing goals of mutual understanding, I would dislike them even more. But I don’t think that is the environment we are in. We are confronting a FUD campaign here, where subtle intimations of risk and whispers of uncertainty favor the fudder, and need to be confronted with crystal clarity. I honestly do not believe that the motivations of BB are driven by desires for common understanding or the community good. As we were told, and should remember, BB is driven by the demands of their shareholders. That is the way things are set up here, and I think that causes a systematic bias, which at times like this reaches the level of distortion, of the communication of organizations such as BB. We are not talking with an 8 year old, nor with a free actor who can choose to do as they might wish. Failure to recognize that leads to an unreal model of the context we are in. I have plenty of biases, but no stockholders telling me I can’t do the right thing here.
Enough for now, the next conference speaker is one I want to catch. I spend plenty of time on other things that are more fun, like the OCW work, or planning for the next conference, or putting together my semantic tech class that starts up in a few weeks (yikes), but I also feel this is worth time. It is important. Attention should be paid and the efforts of those of us working on this and working for us on this should not be belittled as just pursuing something that is standing in the way of more interesting work. Making our community, our whole community, commercial and non-commercial components of it alike since we rise and fall together, safe from threats that confuse potential adopters and stall our community’s growth are worthwhile. This will not be a one-time event. Wishing things were otherwise is an inadequate model to work from.
I suspect we have carried this discussion about as far as it can be productively carried. I’ll just make two brief final comments about my own rhetoric. First, I have tremendous respect for eighth graders (who are generally 13, not 8 years old). As a former eighth grade teacher, I firmly believe that we tend to grossly underestimate them and overestimate everyone else. I speak to eighth graders with the same respect that I give to adults and demand the same in return from them. I do not believe that my moral obligation to them is substantially different than my moral obligation to you, Eben Moglen, or Matthew Small. If Bb is, as you say, driven by a systemic bias that is beyond their control, then that is all the more reason to treat the individuals who are caught in the ideological gravity well with some degree of charity. I see no conflict between doing so and holding firm on the substance of the argument.
With regard to my characterization of Mr. Moglen as a purist, I’m not sure that he would argue with me, nor am I confident that he would see that as an insult. (Nor was it intended to be.) It is a fact that his larger aims are not entirely consonant with those articulated by Sakai in its licensing policy and are not even consonant with those of some GPL-based projects. It is also a fact that Moglen, doing this for no money, has no apparent motivation other than pursuing his larger aims (again, not an insult), and that his own perceptions and advice may be shaped by those aims, even (or especially) where they may conflict with ours (yet again, not an insult). As you say, wishing things were otherwise is not an adequate model to work from.
I’m down with being courteous with 8 year olds and 8th graders both. The analogy though, tried to extend all such courtesies to corporate reps. No deal.
When I hear someone call someone else a “purist” I think of blinders and true believers. Perhaps that is just me.
Michael, there is still plenty of room for productive discussion here. I think such exchanges are useful. We get to talk about the issues and how they are cast. We get to avoid speakers at conferences that are not as good and lively as the Sakai Conference. And we get to laud the work of those, including yourself, who are working for the betterment of the open source world.
I think, Mr. Feldstein, that your criticisms and epithets are fair
comment, and I have no personal grievance with them. I believe some
clarifications may help you to decide whether they are as justified as
they seemed to you when you wrote them.
First, let’s eliminate some role confusion. I agree with you about
how to teach, a subject in which I also take a professional interest.
I did my teaching in Atlanta at the morning session; I’m glad you
liked it.
The debate was not, in my view, about teaching. In addition to being
a teacher, I’m a lawyer. Lawyers play several roles, though some
lawyers are more specialized than others. Three roles define my
practice: counselor, negotiator, and litigator. Each is played in a
different way, and one modulates among them.
Originally, when I first became involved in this situation, I thought
the dispute with Blackboard could be negotiated, and that was the role
I tried to have SFLC play. Blackboard declined to negotiate peace on
reasonable terms, which made some degree of hostilities inevitable. I
have long represented clients with no money and no power who confront
large and powerful organizations. When I am compelled to fight, I
must do so wisely, which includes forcefully where force is necessary.
As I said in my remarks in Atlanta, the Free World is peaceable but
not pacifist.
It may interest you to know that it was I who originally suggested
inviting Mr Small, not the Sakai Board. I did that not in order to
create a teachable moment, or to contribute to general public
information, although I certainly would have welcomed those ancillary
consequences. I did so because if Mr Small was unwise enough to
accept the invitation he would be compelled to reveal information
about Blackboard’s capabilities and intentions that I wanted in order
to carry on the war. I wanted, in short, a free look at the enemy. I
assumed Mr Small would be smart enough to decline; I was less
astonished at his acceptance than I might have been had I not
researched Blackboard rather heavily since the start of my engagement.
I /was/ astonished at Mr Small’s giving me a free look at some of
Blackboard’s other officials, who may be witnesses in future
proceedings and who should not have been lightly exposed to adversary
scrutiny, let alone allowed to express themselves unguardedly, as they
did in a private meeting I attended.
My primary goal both in the public event and in the private one was to
acquire specific pieces of information by agitating the containers. I
got, in that respect, what I came for. I also wanted, in the second
place, to address other absent parties, including those who invest in
Blackboard, to remind them of the likely costs of the war the hired
managers of Blackboard have elected to fight. We will continue with
that aspect, too, of our measures to rein in Blackboard’s power. I
appreciate your desire to assimilate the event to a classroom, and to
think of what occurred as for the information and personal benefit of
the attending students, most importantly yourself. You will forgive
me for having two dyers’ hands, differently embrued: my other one,
which wields a war staff, was not in a classroom at all.
So, in my view, you attended the theater, watched the performance, and
derived moral judgments about the character of the actors based on the
lines they spoke. Or else came to the battlefield and deprecated the
uncollegial atmosphere you found there. I think there’s a category
error in the philosophic sense in either case, but I leave that up to
you.
A propos the analogy to nuclear war: In the world where I practice,
patents on software are, like nuclear weapons, instruments of
immorally indiscriminate destruction. To prohibit a person from
expressing her own ideas, however she likes, and giving them to
whomever she pleases, because you have previously secured a monopoly
from government on the expression of a similar idea, is a form of
ultimate weaponry against freedom of thought. Compare this to
copyright, which covers not ideas, but expressions only. Copyright
cannot, the Supreme Court says, be used to prevent the re-expression
of ideas, only the copying of others’ expressions of those ideas.
Anything else, the Supreme Court says, would be prohibited by the
First Amendment. And thus, until 1982, US patent law was assumed to
prohibit patenting facts of nature, mathematical ideas, or algorithms.
For reasons it would now be tedious to repeat, bad law has temporarily
driven out good law in the US, and government monopolies are used to
prevent people from expressing and sharing ideas they have
(independently) come to for themselves. This may seem to you unlike
the physical hecatomb of contemporary warfare, but for those who have
followed the ebb and flow of western attempts to entrench freedom of
thought in the social order, it can and does often appear as grossly
immoral as the logic of nuclear threat and deterrence.
My real purpose in the employment of the analogy, however, was to call
attention to the unrealism of Blackboard’s proposal that we negotiate
arms control one weapon at a time. Each individual patent application
in their pipeline is sufficient, if granted and not forcefully and
adroitly defended against, to wipe out an entire project.
Desire2Learn, for example, having defended itself particularly badly,
sustained an immense reverse this week and is now substantially more
likely to be gravely injured, snapped up or eliminated outright. But
we told their counsel as far back as August this would happen, because
we knew then that their intended course of conduct was going to be
disastrous. We explained carefully why the sorts of cooperation they
sought from us were dangerous to the legal interests of our clients,
given the uses they intended to make of the information for which we
were being asked. We proposed alternate courses of conduct that would
protect our clients against their improvidence. They declined. We
therefore had no choice but to leave them to their fate, although–
solely out of feelings of solidarity and compassion for their
situation–I made two additional attempts to change their minds by
personal solicitation, which were again declined by people bent
headlong on their own destruction, which they have now gone far to
accomplish. Fortunately, none of our clients will sustain any damage
if they collapse, although their detritus will litter the battlefield
and make our jobs, in certain specific respects, harder.
I don’t think that the question you have adjudicated, which is defined
as whether I speak for you, is properly put. When I was /speaking/ in
Atlanta, in the sense of giving expression to thoughts using words, I
was speaking, most evidently, not for Sakai or SFLC, let alone for
you, but for myself. So far as whether SFLC speaks for you, you might
want a little patent law in order to understand why the re-exam
petition reads as it does: if you reexamine a patent before the PTO
and you do not prevail, you are estopped (that is, precluded) from
challenging the validity of that patent if you are sued on it. Now
you will understand: (1) why Sakai did not file a petition for
re-examination; (2) why D2L’s legal strategy is literally irrational;
and (3) why parsing what I file in order to decide whether I /act/ for
you–in the J.L. Austin sense of how to do things with words–doesn’t
get us very far. I was not retained to speak for you; I was retained
to give your colleagues some legal advice, for which I don’t charge.
I have also decided to act in order to protect my community, and
whether I act for you is compounded of two issues: whether you desire
my results and whether you are prepared to endorse my activities.
Which brings us to the last subject I wished to mention. I wanted to
see Blackboard in Atlanta, among other matters, in order to understand
how far they believed it might be a successful strategy to divide
Sakai from SFLC. As I expected, Mr Small indicated to me that this
was a substantial part of their intention in the small talk we made on
the dais while you were eating, before the beginning of the public
debate. The attraction of the strategy is clear enough: Blackboard
finds itself under pressure from the universities with which it does
business not to be actively hostile to Sakai. It knows it cannot make
peace with SFLC without giving up the exercise of all its patents,
present and future, against open source and free software. So if
Sakai and SFLC stick together, it will soon also face the wrath of its
loyal university customers unless it gives up enforcing patents
against the Free World. Its only alternative is to divide Sakai and
SFLC, in the hope that–should SFLC soldier on, as we must, given what
we have learned about Blackboard–universities without whom it cannot
exist commercially will no longer press it to make peace with us once
it is at peace with Sakai.
Perhaps this will help you understand why I don’t think you’ve
completely understood what I am doing, why I am doing it, or what role
you are actually playing in the situation. Given what you say your
personal policy goals are–and given that most of your moral judgments
about me rest on a confusion between actor and role–I think you’ve
picked this all up by the wrong end. Perhaps, just perhaps, instead
of complaining about me you ought to reserve judgment until you see
whether you might instead have cause to thank me.
Mr. Moglen, I thank you for your thoughtful and thorough post. There is substantial and valuable new information here.
To begin with, the goal you describe for the lunchtime meeting was entirely different than I had supposed and that anyone has articulated to me. (Not that I didn’t ask.) Context is everything. My chief complaint was that you were using courtroom tactics in an academic talk. I did know that I was *in* a courtroom. Nor, I think, did the vast majority of the attendees. Particularly given that it was logical to assume that Blackboard would try to drive a wedge between SFLC and Sakai, as you suggest, it would have been helpful to inform the audience that the session they were about to attend was to be performed in a different and more adversarial register than is typical in an academic conference. Viewer discretion is advised. This is particularly the case with a lunchtime session where it was reasonable to assume that everyone would attend. I don’t think this oversight was *your* fault but I do believe that it was a serious mistake on the part of the conference organizers not to clarify the purpose of the discussion in advance. Perhaps this would have blunted the strategic value of it but, if so, then nobody should have been surprised that some in the audience found the session to be inappropriate.
Second, on the issue of the nuclear language, you do not have to persuade me here of the seriousness of the patent problem. I have expended an enormous number of pixels on this blog and in other publications trying persuade people of exactly the same point. I have also argued, on these pages and elsewhere, that we need for Blackboard not just to change its policy (or, second choice, lose its battle) on this particular patent but to change its policy to safeguard us against future patents. I understand well the point that that you were getting at. I simply choose to modulate my rhetoric differently, for both stylistic and strategic reasons. It is important for us to remember that the universities we are trying to persuade to walk away from Blackboard often act as patent aggressors themselves. In such cases, I believe a “truth and reconciliation” style approach is more likely to win in the long run than a war-like posture. Again, though, context matters. Your performance at lunchtime was apparently focused on an audience of one: Matthew Small. The fact that it was witnessed by hundreds was unfortunate. I have no problem with playing hardball as long as everybody playing is a professional and everybody watching knows they came to watch that particular game.
Third, nowhere in any of my posts did I call for Sakai to sever its relationship with the SFLC. If I am unwilling to walk away from my adversaries, I am trebly unwilling to walk away from allies. Further, let me be clear on a point that you were correct to point out that I have neglected to-date: I think the cause you fight for is admirable and I think your dedication to it is also admirable. Such idealism is rare and to be commended, and I thank you for your good work. But that doesn’t change the fact that the ideals to which you have dedicated your life and the ideals to which I have dedicated my life, though they overlap significantly, are different and may conflict. I would not compromise my ideals for love or money and I would not expect you to do any differently. In such cases, it is important for us to understand where we differ, not only in ideals but in perceptions. If we are fellow travelers with consonant aims, that is well and good. We can anticipate where we can walk together in harmony and where it is in everyone’s best interest to part company and meet up at a later date. This is particularly important when the road is hazardous, as it is here. I understand that you have had conversations with some members of the Sakai board along these lines but neither I nor the members of the community (never mind the public at large) have been privy to them. This limits possibility for informed consent, which can only be bad in such situations. My personal interest is not in seeing the relationship with SFLC severed, but in safeguarding its long-term health through the tonic of fresh air and sunshine.
In that vein, I ask again what the reasoning was for declining to send D2L a copy of the ex parte filing. That was not a rhetorical question; I am not a lawyer, and I don’t assume that I know the answer. I simply want to be reassured that the reason was not related to any divergence of goals and ideals. Again, fresh air and sunshine.
Once again, thank you and thank you.
Michael,
You say: “…I do believe that it was a serious mistake on the part of the conference organizers not to clarify the purpose of the discussion in advance.” I was that conference organizer so feel I should respond a bit.
First, a little ground clearing: I do not view the Sakai Conference as an “academic conference” really, it is a working conference for the Sakai Community. Sure, many of us are from the academy, but many are not, and it is not an intellectual exercise. When I say it is not an intellectual exercise that is not meant as a criticism or any belittling of academic conferences or intellectual exercises; I go to and do both quite a bit. But the Sakai Conference has clear instrumental purposes. It is not meant only to increase our knowledge of the world (laudable goal that that is and I hope a good bit of it gets done at the conferences), but also touches the real world and intends, at least in the mind of this organizer, to change that world. Thus we encounter all the pragmatics of engagement with the world and take on risks we simply don’t take on in academic environments (there are plenty of other risks in the work we do in the academy).
Then, again, I think you conflate intentions of the conference organizer and the speaker. It was not my intent to make a court room out of the lunch, that, as Eben pointed out in his earlier session, was his. My intent was to get as much of the discussion as possible into the public. I could have tried to influence his presentation, or Mathew’s, I guess, but where does that stop? Or I could give a viewer rating to sessions, but really, think that one through a bit. No, here we are best served by the, rather experienced, speakers we choose doing what they think best. That’s how open public discussion goes best.
So, perhaps we should put up recommendations for viewer discretion in the future, as you suggest. I have learned a number of interesting lessons here, and that might be one of them. But I doubt it. I think Sakai Conference attendees can figure things out for themselves. I will give future attendees notice here that there may well be contentious, perhaps even obnoxious, behavior at future Sakai Conferences, and they should come prepared. I will also tell the world that it is my intent to have as productive and civil a set of conversations as possible in the future, but beware, you may hear things you do not like, said in ways you don’t like, at virtually any session of the conference, lunch or otherwise.
Conference attendees’ discretion advised… with respect to everything, actually
Joseph
All I can say is that the level of discomfort that I heard from many attendees speaks for itself. I did not hear anything like that level of discomfort about any other session. Perhaps you heard differently, and perhaps not everyone who was uncomfortable expressed their concerns to the board.
Hi all, this is becoming a very interesting thread!
I already said, and let me repeat that here, in the partner meeting and to Michael personally, that I didn’t think Mr. Moglen was over the top during the lunch discussion. For me this is very simple: this is the real world, where sometimes things need to get a little harsh and blunt. That is what I saw and heard, which is OK with me.
I agree with Michael that to me it was not really clear which hat Mr. Moglen was wearing during the discussion. That should have been clearer.
And regarding Clay’s remark that maybe Europeans didn’t get it: I got the message, loud and clear.
There is still a very interesting question from Michael that is open: “I ask again what the reasoning was for declining to send D2L a copy of the ex parte filing.” Anyone?
Michael,
I am sorry for your discomfort, and for any other attendee’s discomfort. But the solution you propose is not a very good one. Do you really want me to use a viewer discretion rating for sessions at future conferences? I would prefer for us to assume the most on the part of our attendees, and then when a situation arises that causes discomfort, work it out through discussion, as we are doing here. It’s educational for all of us.
Wytze,
Thanks for the note. Eben or Richard from SFLC would be best to answer the question about not sharing materials with D2L, of course.
But I’ll give you what I know of the background. Ever heard of the word “estoppel”? I hadn’t either till very recently. I don’t like the wikipedia definition, so here is another, from http://www.lectlaw.com/def/e040.htm – “A bar which precludes someone from denying the truth of a fact which has been determined in an official proceeding or by an authoritative body.” But, as the entry goes on to say, it really just means “stopped” or “blocked” but with the freight of a bunch of legal precedents and contexts thrown in.
Now, in the case here, it is of interest because it means that someone is effectively “estopped” or blocked from using prior art in their defense in a lawsuit if that prior art has been raised in a separate proceeding, like a re-examination, with the US patent office and found not invalidating. If a piece of prior art has been examined by the USPTO and found wanting, in other words, it loses most if not all of its value in a court of law, the place where you would be sued, in this case by BB, for infringement of their patent.
In other words: prior art can be “used up” and rendered pretty much useless if it is used in a re-exam and the USPTO doesn’t buy that it is real, applicable prior art.
Next, we need to know the difference between the ways D2L and SFLC are proceeding with their separate re-exams. I’m sure there are lots of nuances here, and I might refer you to Michael’s recent blog on the differences between “ex parte” and “inter partes” re-examinations. I haven’t read it, but Michael usually does a good job with stuff like this. Anyway, D2L is going the inter partes route. SFLC is going the ex parte route. There are potential collisions in prior art space because of this. The way I understand it, SFLC is very, very concerned that D2L will use up lots of perfectly good prior art and not get what they, or we, want: the patent rendered void, or crippled beyond our caring.
Because they are embarked on an inter partes re-exam, D2L is obligated (part of the law in doing inter partes; no choice) to use all the prior art they are aware of during the re-exam. They could, if they end up unsuccessful, use up a lot of prior art in their one shot. They could effectively estopp (block) that prior art from being used in another context. There are, again, lots of details here and ways I could have stated this incorrectly, but that’s the gist.
Now, SFLC husbands prior art, using just a little at a time in their ex parte re-exam. That way, if they don’t get the desired result first time through, they go back, and use a different, perhaps better,(because it’s now tuned with info from the first re-exam) piece of prior art the next time. In ex parte, there is no requirement to shoot all your bullets the first time through.
I think this difference in strategies is at the base of the concerns and the resultant decision to both try and persuade D2L to not go the route they’re going, and to not get the SFLC prior art all mixed up with the D2L prior art by sharing it with D2L prior to the filing. See Eben’s note from earlier today on this thread.
I certainly hope D2L is successful. We all do. But the expert counsel we have gone to for advice and help think the way they (SFLC) are going about this is simply better. There are arguments on both sides on this one, like any complicated issue, but I think the SFLC arguments make sense. And they have done this before, this re-exam using ex parte, successfully.
Hope that helps,
Joseph
I’m afraid I don’t understand this rationale. The question at hand is not why SFLC is filing separately or employing different legal strategy. The question is why the ex parte filing, once officially submitted, was not provided as a courtesy to D2L upon their request, particularly when they would have public access to it within days of filing anyway. Is there some legal difference when they get the filing from the USPTO as opposed to getting it directly from the SFLC?
Oh, why not give D2L a couple days lead time by sending them a copy of the SFLC filing “as a courtesy…once officially submitted?” I’m not sure, and again it would be best for Richard to respond, as he did the filing. Perhaps Richard was waiting for the “official” notification of receipt of the filing, that the USPTO had indeed received the filing. That’s an official procedures thing. We put press stuff on hold till we’d gotten that word from the USPTO. As you state, D2L would have access to it in a couple days anyway. And while I would be all for sharing the material after filing was completed, I don’t think this makes much difference, really. The real difference is in the divergence of the respective strategies, not in questions of courtesy. It is the substantive differences in approach and their underlying rationales.
Michael, what Joseph says is correct. By the time I knew that the ex parte request had been given an official filing date from the USPTO and was considered complete, the materials were already publicly available online through the USPTO and thus were readily accessible to D2L.
I listened to it a few days ago. Very interesting, and very harsh words from Eben — so much so that some people ended up feeling it was a bit too much.
AFAICS, the reason Eben is acting like that is that there are many companies that are considering threatening FOSS with patents, and they are taking a wait-and-see approach before exposing themselves.
Given the situation, Eben (who is an outstanding lawyer and lecturer in IP law) needs to make an example of the first company who tries anything.
Blackboard have been a bit foolish in that their patent is weak, and the educational community very strong. And that their timing puts them right in Eben Moglen’s cross-hairs. So he wants to make sure they are going to get trounced at the USPTO, the court and the media.
Listen carefully when he says that FOSS is being threatened by a company with huge resources… that is not Blackboard. That is exactly who he is talking to.
It doesn’t make me happy to be part of this larger war, but in any case, it’s good to be part of one of the easy scare-the-wits-out-of-them battles.
(To clarify: I am one of the core developers in the Moodle project. Your blog post inspired me to write the above, originally posted at http://moodle.org/mod/forum/discuss.php?d=60794#275627 )
These past two weeks have seen a great deal of dialog about these issues – including this blog entry and its comments. I like to take a broad and long-term view of these things and try to think how we will look back at some point in the future at the events of the past weeks rather than responding to the passion of the moment.
I think that when the history of these past few weeks is written – the overriding thing that we will remember is *not* that voices were raised or there was some rhetoric or which metaphors were used and whether or not and to what extent some folks found it shocking or offensive….
Instead, I think that in the fullness of time, we will realize that this was mostly about transparency and how that transparency of the past week ultimately will have moved the discussions forward in a positive direction.
Conversations have been going on and there has been conflict and discussion simmering under the surface since June when this all started. I have been part of many small discussions and frankly I am happy that these discussions are happening in a more public way now. A critical element to allow these discussions to move into the public space (meetings, blogs, etc) was the filing of the re-exam at the USPTO. Now that the filing has happened – the open discussion has started.
Part of the key to transparency is that it is *transparent* – we get to see what is going on – warts and all. Like many conflicts – this is not simple, nor cut and dried – there are rough edges here and there – we have to accept that. We should not rail against the rough edges – we should be happy that we are finally all talking about these things in a way that we can all watch as it happens.
I have been involved in lots of discussions over the past six months and really have a lot of respect for everyone involved including the Sakai Board, SFLC, Martin Dougiamas, Greg Gay, Desire2Learn, and Blackboard. What we are doing here is not easy – there is no *book* that tells us the answers – we are working through the issues together even though on the surface it seems like we are at odds. Even with the public rhetoric of the past week, the discussions are still continuing and I am hopeful that a solution may yet emerge.
So I encourage folks to take a somewhat longer view here and appreciate the level of maturity that this field has reached which makes this kind of discussion possible.
Transparency is our right to see what is going on – that is a basic right and a value of our communities – transparency does not guarantee that you will always like what you see.
As I drove this morning, it occurred that I failed to mention my view of Michael’s role in this activity past six months. Perhaps this thread is not the place – but what the heck.
Michael and several other bloggers were the voice for this activity while many of us had to work silently developing legal responses to the patent. In a sense Michael has given a public voice to many of the private discussions that were happening “off the grid”.
In doing his job as a journalist over the past six months, I know that Michael has had sensitive information which he handled with great professionalism. As a big part of the public face of this activity – Michael took his responsibility very seriously as any journalist should.
So while we celebrate the new “transparency” and the addition to many new and exciting voices to the mix – I just want to personally acknowledge and thank Michael for his and dedication to this issue for the past six months.
I would like to thank Michael, also, because I am writing a paper on the blackboard patent. I am certainly not qualified to enter the education patent debate, but as a long-time network engineer I am surprised that the prior art discussion focuses so unilaterally on LMS and education themed technologies when the Blackboard patent seems to have done nothing more than combine the method of networking, clearly explained in the documentation for Microsoft Windows NT, with the idea of having a student and instructor role (because Microsoft labled one of the built-in “roles” with the title “administrator”). As an aspiring patent litigator, I am utterly amazed at the breadth of scope found in Blackboard’s independent claims. While I firmly support the idea that education and patent are terms in opposition, and that “education patents” should not exist in principal, I am more concerned that the PTO grants patents to any computer or internet application of well known methods. This problem was mentioned in a law review article by Stanford professor Mark Lemley as early as 2002 (The Growing Complexity of the United States Patent System; John R. Allison and Mark A. Lemley; 82 B.U. L. Rev. 77 (2002)). Please let me know if I have missed something in my research, but it seems like Blackboard is trying to patent more than just the traditional model of education, but also the traditional model of share, folder, and file management with password protection – like a combination of Windows NT and traditional education. Even under the weak Teaching, Suggestion, Motivation test, there certainly seems to have been motivation, if not teaching and suggestion to combine network technology with education methodology after the advent of the internet. I feel like computer companies like Apple, IBM and (heh heh) Packard Bell were advertising the potential that computer networks had to replace the face to face student/instructor model in the early to mid 1980s.
I want to thank you again for posting. This is going to be an exciting year for patent law.