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.