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.
They’re cherrypicking. Eg. they refuse to respond to the column I’ve written for Innovate on the case. That’s why I don’t give them credit.
Small is trying to learn how to respond in a live-fire environment. So that where the stakes get higher – such as in court – he’ll be ready. An in-house team won’t do it for him; the best learning is real learning, remember?
Sorry; it still doesn’t make any sense.
To begin with, they are not cherrypicking. They have not responded to any external articles–by anyone–but have answered all questions at their hosted events. You may not like that strategy, but it is quite consistent. You’re not going to “call out” a publicly traded company just by writing a column.
Furthermore, the webinar environment bears no relation to what Small will face in court. The questions are different, the audience is different, and the rules of engagement are different. There is nothing to be learned here in that regard.
And finally, if doing this were really the best way for a lawyer to warm up for court, we’d see a lot more of it. And we don’t. Lawyers don’t do this. Ask any lawyer.
I also very much doubt Small will have anything to w/ the litigation in question. A general counsel is almost always internal; when litigating, external firms, that specialize in patent litigation, will be retained.
I think that BB just made a simple business decision to sue D2L and eventually all other LMSs if they win. The sales cycle for their recently acquired webCT customers is 1-2 years so it would not look good if these webCT customers did not choose BB. Not good. So, lets put the whole industry under a patent black cloud so the existing webCT customers do not look out from under their logins at other LMSs out there – especially Desire2Learn and Open Source but rather make the ‘seamless’ conversion from webCT to BB. BB certainly does not want webCT customers to explore the fact that it is easier and better for them to go to other LMSs from webCT than to go to BB. Farmers keep fences around their sheep so BB is just keeping control of their customers – in the only way they can at this point – with a fence rather than by having the better product.
What BB did not count on however, is that while businesses like fences, the educational community despises them and would rather that all educational businesses compete in open and free markets where the best products survive. This open environment produces eagles whereas the current BB environment will produce Dodo birds.
To BB, the patent is just business. To educators, the LMS is not simply a business product but a valuable component to professional teaching, and so the company behind it needs to behave professionally. And this is why they are ticked as they perceive BB as a patent troll!
I have a lot of opinions on this subject, but for now I just want to commend Mike for being a voice of consideration and reason. There’s so much hysteria attached to this patent dispute that thoughtful commentary too often gets drowned out.
It’s nice to see someone out there whose motivation is to find the facts and report them, whether those facts aid Blackboard or buries it. This is good old-fashioned journalism, and as someone who is closely following this situation, I am grateful for it.