While at EDUCAUSE, I had opportunities to sit down with both Blackboard’s General Counsel Matthew Small and the Desire2Learn executive team. In the spirit of diplomacy, everything in this post has been reviewed by both sides, and there are aspects of our conversations that will remain private.
In my conversation with Matt Small, we spent a fair bit of time talking about the impacts of patent assertion on the educational technology ecosystem. I emphasized that, even if I thought that Blackboard’s patent were valid, I would still oppose their efforts because of the damage that an environment of patent litigation will have on innovation. I also let him know that I believe there are others in the community who feel the same way. (I don’t want to presume to speak for anyone but myself.) In turn, the position that he articulated to me was pretty consistent with his public statements.
My conversations with the Desire2Learn team included CEO John Baker, COO Jeremy Auger, General Counsel Diane Lank, and Director of Marketing John Mcleod. The main message I took away from that conversation was pretty much the same one that they recently posted in their patent litigation blog, i.e., that they view themselves as fighting for the interests of the entire educational community, including universities, Open Source projects, and proprietary competitors.
Thanks to both parties for making the time to speak with me.
Do you truly believe that D2L is, first and foremost, fighting for the interests of the entire educational community? That seems like a convenient and specious proclamation. Obviously, D2L’s primary motivation for battling Blackboard is to fight for its own survival. All other high-minded notions are secondary at best.
Let us not forget that while small in comparison to Blackboard, D2L is a for-profit company and not a heroic band of open-source warriors fighting “the man.” D2L is trying to gain market share, increase profits, and enrich themselves personally–just like Blackboard is.
For D2L to assert that it’s fighting for the interests of others smacks of demagoguery. It should be obvious to all that the company is fighting for its own hide. And there’s nothing wrong with that, mind you. I just think it’s unfair to allow D2L execs to paint themselves as freedom fighters for the e-learning community when their primary objective is to make money just like any other company.
Scott, the question is about ethics used in the pursuit of profit. As far as I understand, all companies were working in a healthy, competitive environment, until this summer when BB invoked their patent infringement lawsuit. Any institution using BB, is now indirectly supporting the litigation.
I for one, am glad that D2L is resisting rather than taking the cheap way out and paying the royalty. Taking this route, if BB loses – we all win except D2L who must foot the legal bill; if BB wins, then we all lose (with D2L losing the most)…and you still can’t understand why D2L is being perceived as “freedom fighters for the e-learning community”!!
Scott,
I think it’s pretty clear that the majority of the community views D2L fighting the patent as in their best interest. D2L must realize that since the community has been actively involved in helping them identify prior art. I really wonder what community you are coming from if you don’t see that… it certainly isn’t this one.
Of course D2L is going to gain goodwill as they resist the patent infringement lawsuit – whoever resists will. But, D2L did not initiate the lawsuit – so any benefit D2L gains comes directly from BB’s own actions. I am not sure where you are getting the majority of the community views” from, because except for your comment to this post, yours has been the only comment I have read in recent months to fault D2L for resisting the patent. What do you propose that D2L should do – pay the royalties? If so, then this says a lot about the community you hail from.
I’ve taken a breather from commenting here because it seemed to me that the rhetoric on all sides had progressed beyond useful debate.
I do want to clarify my previous comment here as it seems to have been misinterpreted. I’m making no comment as to whether D2L should resist the lawsuit, or whether Blackboard is behaving ethically, or whether D2L is deserving of admiration for its resistance. My point is simply this: D2L shouldn’t be allowed to list all the folks it’s fighting for (“the entire educational community, including universities, Open Source projects, and proprietary competitors”) while conveniently omitting from that list the entity it’s actually fighting for … itself.
I’m merely lobbying for fair representation of this dispute. Blackboard sued D2L for alleged patent infringement, and D2L countersued to protect itself. That is the nut of the situation.
BTW, I’m not questioning the sincerity of D2L’s assertion that it’s (also) fighting for the academic community at large. But can we not agree that D2L chose to incur considerable legal fees not to defend academia but to protect the health and viability of its own business?
Bottom line: I respectfully submit that D2L shouldn’t be granted a free pass to posture in this way. It’s opportunistic and a bit dishonest.
Scott,
“If BB loses – we all win except D2L who must foot the legal bill; if BB wins, then we all lose (with D2L losing the most)”. Do you agree with this?
Win or lose, D2L will be praised for taking a stand and will most likely reap increased business as a result. However, I do not think that D2L initiated the patent lawsuit; BB began the lawsuit the day they were granted it without even negotiating with D2L.
D2L had two choices; D2L could agree with BB and start paying the royalties (read everyone including Open Source will then have to start paying BB royalties – there goes Open Source) or D2L could resist the lawsuit. I believe BB with its 0.75 billion capitalization, predicted that the small privately owned D2L would capitulate. I don’t believe BB entertained any possibility of D2L not negotiating and paying the royalties because they certainly have themselves in a public relations mess now, which was bound to come if D2L resisted.
The real losers in this play will be the students. Millions of dollars, that should have gone to research and development and producing LMSs with better features, are now going into legal pockets. And for this shameful loss, I hold BB fully responsible. Anyone who does not face this fundamental is indeed spouting rhetoric.
Sydney,
I’m not disagreeing with much of anything you just wrote. My point is that D2L shouldn’t get a free pass to posture as if its resistance was done on the behalf of others. That is my *sole* point. You are arguing other points that I didn’t address and don’t disagree with.
Yes, D2L is the underdog, the good guy, the entity everyone is cheering for. I get that. Let us not forget, in the process, that D2L is a for-profit company. Its manifest purpose is to make money. As such, I believe it shouldn’t be allowed to portray its motivations as selfless. Is that an unreasonable request?
You simply don’t see that they can be truly and honestly fighting for both do you? It isn’t news to anyone that they are fighting for themselves. However, to suggest that they are too self absorbed to realize that the outcome of the case will effect the entire industry and that they are fighting for the industry at the same time is shortsighted and myopic. Most software companies realize the dangers of software patent litigation and are perfectly capable of making the jump and realizing that they are fighting for a higher cause.
“to suggest that they are too self absorbed to realize that the outcome of the case will effect the entire industry and that they are fighting for the industry at the same time is shortsighted and myopic.”
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I neither said nor implied the above. In fact, in my previous post, I wrote: “BTW, I’m not questioning the sincerity of D2L’s assertion that it’s (also) fighting for the academic community at large.”
If we can stick to what’s actually been written, I think we’ll have a much more productive conversation. That said, I think this particular thread has reached a dead end.
If you agree that D2L is sincere, then I don’t see what your point is. To my knowledge, they have never claimed to have a selfless interest in the case, nor has anyone claimed that they are being selfless.
http://en.wikipedia.org/wiki/Straw_man
OK, this is making my head hurt. Read Michael’s original post, then my initial comment, then perhaps you’ll see the distinction I’m making.
I simply think Michael should not be content to allow D2L convenient talking points such as “we’re fighting for the community” without noting that the company, first and foremost, is fighting for itself. Failing to do so portrays one company as a big, nasty for-profit company and the other as some sort of non-profit, grassroots initiative–when in fact, this is a legal dispute between two for-profit companies.
Jesse, by sarcastically implying that this a “straw man” argument, you’re only perpetuating an unflattering image of yourself. An image of a smug and arrogant unwillingness to hear a viewpoint that doesn’t match your own. I regret that you can’t find a more civil and thoughtful way to respond.
Perhaps more to the point: yes, no one has claimed D2L is being selfless. But if this blog is to take a journalistic approach to the issue, and I think Michael has accomplished that to a commendable degreee, then D2L shouldn’t be allowed to present such a populist position without someone *explicitly* noting that D2L’s fight is most certainly motivated by the need to protect its own business.
D2L doesn’t ever need to point out that it is fighting for itself. The case is Blackboard vs. D2L. It’s implicitly understood knowledge.
The point I am making Scott, is that if D2L was selfish and scheming, then they would have paid the royalties to Blackboard – necessitating that all others would then have to follow suit as well. This would have eliminated Open Source from the marketplace. However resisting, D2L or whoever BB attacks, will certainly gain good will. If D2L wins then Open Source is saved. If they lose then Open Source is gone. BB attacking D2L was really designed to destroy Open Source. The only event BB failed to anticipate and which is now threatening to throw the whole BB locomotive off the tracks, was D2L resisting with tenacity.
As it drags on, how do you think the reviews of the LMSs by various academics within the educational institutions currently using or considering using BB will unfold? Do you think that educators will consider the fact that if they vote to accept BB then they are really providing BB with the funds to destroy the Open Source and other LMS choices we now have – and thus reduce the competetive marketplace. This is the harvest BB is bringing home with this patent lawsuit – and I think this was their intent from the very beginning.
I think it should be noted that open source ANYTHING though really cool for getting things done must eventually be bought and locked down for the protection of the actual info. If its open source then any hacker can and WILL know the loop holes.
That being said–it is in the communities BEST interest to let one or the other push towards a unified elegant design. Or let BB buy D2L out and do it that way.
Microsoft and Apple have been buying open source projects for years and then homogenizing them. Why not the LMS? I personally find it ridiculous that Ive had to learn 4 diff LMS in one year!
Neither is perfect–and D2L has a LOT of software issues at the moment.
Most of D2L’s issues are SECURITY and edit issues as well as a VB language issue that hates all but IE.
Blackboard isnt perfect–but its a thousand times easier to teach than D2L. D2L also has a content display variable that requires knowledge above “add file here” that makes it hard on tech support.
Elegant? nope…D2L is far from it. Powerful..yep.
Let BB buy it and make it ELEGANT and easy to use.
thats my vote.