Somebody asked me what I thought the theme of this year’s EDUCAUSE turned out to be. My answer was “Blackboard.” I did not attend a single session in which somebody did not make a derisive comment or joke about it. In many cases, (including the Common Cartridge session and my own session on OpenBRR), it actually sidetracked the conversation for substantial periods of time. Meanwhile, there were several anti-Blackboard T-shirts making the rounds. (If anyone has any pictures of people wearing these T-shirts, please send them and I will post them.) As Al Essa notes, the EDUCAUSE board itself has apparently written a letter to Blackboard asking them to cease and desist. Blackboard’s town meeting (described in The Chronicle and in a participant’s notes [.DOC] posted by Stephen Downes), was very tough, with the audience applauding several times at negative comments and questions. And by all accounts, the CIO meeting was an unmitigated disaster. (I was not able to attend; if anyone has notes from the meeting, please {encode=”[email protected]” title=”email them to me”}.) Throughout all of this, Blackboard stuck to their message and showed little sign that they were willing to change course.
They apparently assumed that we would greet them as liberators and didn’t bother to formulate an exit strategy.
I noticed the same analogy you’re implying here, Michael. Beyond not being greeted with flowers, the repeated theme from the Blackboard Execs at the Bboard session I attended was “trust us. Judge us by our actions and you’ll see that we are trustworthy.” The cognitive dissonance was striking, because they really did seem to think that their actions demonstrated trustworthiness, when exactly the opposite was true.
Michael,
I am new to your blog, but am also very interested in all things e-learning. You mentioned that Blackboard was drawing some strong and negative feedback. In brief, what is the most common complaint from teachers regarding Blackboard?
Joe,
I wasn’t there and therefore can’t comment on the tone or content of Blackboard’s statements to the attendees. But when Blackboard execs say, “Judge us by our actions and you’ll see that we are trustworthy,” it seems to me they are saying, “Please withhold final judgment until you see how we wield this patent in the coming years.” Which is a reasonable request, I think. The community is up in arms over what they fear will happen in the future. I understand the wariness, but I don’t think Blackboard should be hammered for what some *expect* to happen. I think Blackboard is simply asking that they not be condemned for actions and behavior that they have not yet exhibited.
Scott, I couldn’t disagree more. We don’t have the luxury of waiting to see what they will do. In fact, any university lawyer is likely to tell faculty who may be developing next-generation LMS technology to cease and desist because of the liability risk from the patent. The mere threat of potential litigation does enormous damage, and Blackboard refuses to acknowledge this.
Michael, I understand your point, and I think it has some merit. Blackboard’s legal action will probably have a chilling effect in the short term. I can’t speak to the mindset of university lawyers and how skittish they might be with regard to e-learning Skunk Works pursued on their campuses. But I strongly doubt Blackboard has any intention of going after home-grown products. Such an approach would turn them into the RIAA of e-learning software, a giant bully picking on the 13-year-old kid with a few MP3s on his laptop. I don’t think Blackboard would ever risk engendering the backlash and resentment such an action would surely generate. It would be detrimental to their business in the long run, and they would be fools to go down that road.
That said, if a home-grown product began to proliferate across campuses and, in Blackboard’s mind, infringed on their patent, I think you would possibly see them issue cease-and-desist letters as a bulkhead against erosion of their market share.
Your question, I’m sure, is how can e-learning evolve under those circumstances? And that is an important and relevant question. My hope is that Blackboard develops a trust relationship and informal partnership with the Higher Education community. What would that mean? It would mean Blackboard pledges not to interfere with campus-level innovation so long as those innovations don’t evolve into widely distributed products that infringe upon its patent. In that scenario, innovation could continue unabated and eventually percolate into the codebases of existing commercial and open-source platforms.
I realize no one made Blackboard god of e-learning. And I don’t believe anyone at Blackboard is of that mind. But the industry does need leadership, and if Blackboard wields it responsibly, I think everyone wins–including the most important constituency of all … the students.
All this said, please know that I admire your role as the “fourth estate” during these uncertain times. I believe all of society prospers from the vigilence of folks such as you. I merely hope that we can all maintain a candid, respectful dialogue and refrain from some of the hysterical claims I’ve seen bandied about on these boards.
I’m sorry, Scott, but that makes no sense. To begin with, no campus legal counsel would support the development of a product that opens the campus up to legal liability (even theoretical liability) based on a “trust relationship and informal partnership.” Second, if the innovations can’t be widely distributed, then what good are they? Into what products could they “percolate” if Blackboard can threaten those products with prohibitively expensive infringement suits? You’re basically granting Blackboard a hammerlock on any innovation that shows promise of disseminating into widespread practice. And for that matter, how is Blackboard “leading” by using a legal club to suppress competition? What “leadership” are they displaying?
Let me be clear: I do not believe it is a “hysterical claim” to assert that Blackboard’s infringement suit and the precedent it sets could decimate innovation in virtual learning environments. To the contrary, I think it is the most reasonable, fact-based conclusion one can draw. That doesn’t mean that I will always assume ill will on the part of Blackboard’s every action. But I don’t have to assume ill will in order to conclude that their current actions will have disastrous effects on the industry. There is overwhelming evidence that assertion of software patents is, on balance anti-competitive even in far more robust markets than this one. If you don’t believe me, then I suggest you read up on the subject. This is not a very controversial claim.
Michael,
A few points:
1. I never called your comments “hysterical.” I’m referring to comments I’ve seen on other boards. I do think you’re overstating the impact of this suit when you say, essentially, that the only reasonable conclusion is that this will “decimate” innovation in e-learning. Dresden was decimated. I think we’re looking at more of a London Blitz here.
2. I’m not saying Blackboard is a deserving and de facto industry leader. I’m saying that any industry needs leadership, whether by a dominant fair-minded company, or by a consortium of fair-minded companies. It just so happens that at this point in time, Blackboard is the entity in the most strategic position to offer leadership. If they abuse that leadership, then shame on them and they’ll deserve any abuse and loss of market share they receive as a result.
3. I specifically stated that I don’t know the mindset and M.O. of university lawyers. And I’m certainly not claiming that those lawyers would accept an informal trust relationship. You’re connecting two different thoughts that I stated in two different parts of my post. What I *am* saying is that I hope 1) Blackboard can build an environment of trust in Higher Education for no other purpose than changing the current atmosphere of suspicion and fear, and 2) that a specific and public pledge not to interfere with campus-level innovation might prove enough to “reignite” the innovation you seem to think has been stopped cold as a result of the current litigation. I’m no lawyer, and as far as I know, neither are you. I respectfully submit that a specific, public pledge would be sufficient to allow smart, ambitious folks on campuses to continue innovating. I think the implicit line being drawn in the sand is that these innovations, insofar as they are delivered in an overall package that technically infringes on Blackboard’s patent, should not develop into full-blown competitive products such as the ones that came out of Virginia Commonwealth University, Cornell, George Washington University, and the University of British Columbia.
4. You are missing my point with regard to the spread of innovation. I’m saying that specific innovations could be incubated on campuses around the country and then adopted by the current players on the scene–Blackboard, D2L, Sakai, Moodle. What would potentially create a problem is if those innovations are distributed as part of a product that infringes on Blackboard’s patent. You seem to think that products and innovations are one and the same. I disagree. You don’t need to create an entire CMS to innovate in ways that improve the quality of all e-learning products.
5. I’d be happy to read up on the subject of how the assertion of software patents can be distrastrous to the most robust of industries. Please pass along any online resources, book titles, etc., and I’ll be happy to read them. My presence here is to be part of the dialogue, to gather perspective from others, and lend a little of my own. I mean that in all sincerity.