Barry Dahl has posted some comments from John Baker regarding whether the possible backlash against Blackboard for the suit will have universities tar all LMS vendors with the same brush and move to open source instead. John made two points in response. First, John expressed faith in the educational community (based on feedback that D2L has gotten from their customers) that they will be able to see that the problem is vendors who assert patents for educational software in particular rather than proprietary software vendors in general. Second, he asserted that, if D2L succeeds in implementing a work-around to the patent that earns them a court ruling saying they no longer infringe, then they will be uniquely inoculated against the patent in a way that no other LMS vendor (other than Blackboard itself) could claim.
I think John is probably right on both counts. In fact, he’s indisputably right on the second count. If D2L gets a non-infringement ruling at some point (which is not a given), and if the patent is not invalidated outright on appeal or by the USPTO, then D2L will be safer from the effects of the patent than any other platform going forward. While it’s true that Blackboard’s pledge is legally binding, it’s also true that the pledge is complex and the boundaries of it have never been tested in court. For example, what is the legal liability of support vendors for open source LMS projects? Nobody can say with certainty.
On Baker’s earlier point, I see no evidence that university folk are rejecting vendors in toto. If bad feelings toward Blackboard because of the patent do result in substantial defections by Blackboard customers (also not a given), my sense from the educational community is that the relatively few people who view this as proof that all vendors are inherently bad are the ones who had already believed that to be true and see the lawsuit as confirming their current views. The majority of academics that I talk to see the root of the problem as being with one particular company and, possibly, with the US patent system. If anything, D2L may get a “good ethics” boost with some university decision-makers that could help them win in cases where the competition is a close one. I do think that the open source projects probably will benefit disproportionately from any flight away from Blackboard, but only because I think more institutions are willing to seriously consider adopting an open source LMS than there were a couple of years ago. It will be a level playing field with more viable players.
Update: D2L has asserted in their latest court filing that the Blackboard pledge has some deliberately crafted legal holes in it:
Bb may assert that the “patent pledge” insures continued competition by open source providers.. However, it appears that Bb has not truly surrendered its the ‘138 Patent against those entities. Bb has preserved arguments that so that it could revoke its Pledge and sue. For example, Bb has repeatedly stated that it does not know whether other companies infringe, yet knowledge of the act sanctioned is required for estoppel. See Young v. Amoco Production Co., 610 F. Supp. 1479, 1487 (E.D. Tex. 1985). Also, to prove estoppel any potential defendant must prove that it relied on Bb’s Pledge, and not on the advice of counsel as to its rights. See Hall v. Aqua Queen Manufacturing Inc., 93 F.3d 1548, 1558 (Fed. Cir. 1996). It would appear that Bb has carefully protected at least both of these escape routes.
The real problem D2L faces in terms of customers is the current uncertainty about how far the suit will go. Universities tend to be highly risk-averse and the lawsuit understandably makes them nervous. What is lost in a lot of the discussion on individual campuses, I think, is that no platform is indisputably safe from this patent at the moment.
