e-Literate

Present is Prologue

Tag: Matthew-Small

  • Quick Blackboard Updates

    Between multiple family visits and a case of the flu that’s had my flat on my back the last couple of days, I’ve fallen even further behind on my backlog of posts than I was upon returning from EDUCAUSE. In the interest of catching up, this post will be short. First, several bloggers have already pointed out John Mayer’s interview with law professor Vince Chiapetta about the Blackboard patent. If you haven’t given it a listen yet, do yourself a favor and make the time. We now have a legal expert on record as validating much of what the community has been saying about the patent and contradicting Blackboard’s position on a number of key points.

    Also, Stephen Marshall has posted another summary of the Blackboard Town Hall meeting at EDUCAUSE. Here’s an excerpt:

    Question: (from me) Blackboard appears to be having things both ways by claiming that their patent is so narrow that it can’t be cast as a patent on e-learning systems while also stating that a very detailed analysis is needed to show the lack of prior art in ostensibly similar products like Lotus Notes and FirstClass. Can Blackboard appreciate that this places developers of new systems ina difficult position as they can’t afford to pay for an indepth legal investigation of their new idea, especially in the context of open source or higher education, in order to determine whether or not it is infringing? In particular this is an issue when external research funds are used as the risk of patent infringement is likely to dissuade funding bodies from supporting even initial explorations.

    Trust us – there’s no risk of enforcement against professors. Sadly this is an almost useless answer, there’s no guarantee that they won’t sue our employers, and there’s no guarantee that future management won’t change their mind, especially if a new open source product challenged Blackboards revenue.

    It was also very clear that Blackboard failed to appreciate the very real problem this patent poses for anyone engaged in e-learning systems research. Every granting agency is going to have to seriously consider the risk that funded projects will infringe the patent and be forced to pay royalties – something that is likely to see them pass on funding rather than take the risk.

    Matthew Small also delivered a damning indictment of software patents without realising it when he added that reviewing existing patents is a normal activity when creating software, that should be done as a matter of routine. This is clearly nonsensical for anything other than large software firms as the number of patents is vast and growing and as he himself noted, specialist and detailed analysis is needed to determine infringement. The idea that the creation of software should be a legally bounded and constrained activity is repugnant personally and its sad that increasingly lawyers seem to be controlling innovation in software rather than programmers.

    Yup.

  • More on Fairness

    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.

  • Blackboard Conference Call, Part II

    As I said in my previous post, I was allowed to ask quite a few questions of Matthew Small in Blackboard’s patent Q&A webinar tonight. I chose not to ask any regarding the scope or validity of the patent, since I saw no benefit in crossing swords on those issues. Instead, I focused my questions on the potential for broader harm to the industry. Matthew Small took great pains to emphasize that Blackboard’s intentions are narrowly focused on D2L and that this patent is not, in his words, “a game changer.” I wanted to find out if he really believed that, if he can defend it, and if he knows how strong or weak his defense is. My conclusion? My gut is that he believes it. I’m confident that he can’t defend it. And I think on some levels, at least, he knows that his defense is weak.

    In fairness, all of what follows is paraphrase. I don’t have a recording or transcript of the conversation. I invite other participants (including Mr. Small) to correct the record if I get anything wrong or out of context.

    (more…)

  • Blackboard Conference Call, Part I

    Tonight I listened in on the last in Blackboard’s series of Q&A webinars on their patent. To their credit, they let me ask all of my questions. Matthew Small even extended a personal invitation to me to call him with any follow-up questions. I was very happy with all of that. I was far less happy with their answers. But that’s the subject of my next post. For this post, I want to acknowledge what I believe was a genuine effort at outreach on Blackboard’s part and respond in kind. I want to make clear why I could accept Matthew Small at his word regarding Blackboard’s intentions and still conclude that this patent litigation must not stand. I want to say to Mr. Small and the Blackboard management team that this isn’t personal. (more…)

  • Even Microsoft Disagrees with Blackboard

    I recently noted that, contrary to Blackboard General Counsel Matthew Small’s assertion that no patent holder can say for certain what they will or will not do with a patent, IBM has done exactly that by providing royalty-free licenses to linux on hundreds of their patents. But hey, that’s IBM. They’re into all that crazy hippy Open Source linux stuff. Surely a normal software company wouldn’t do that…right?

    If IBM is too radical for you, then let’s look at Microsoft. Surprise, surprise, even that bastion of voracious techno-capitalism has announced that they promise–promise!!–not to assert patents that they hold on web services against anyone. And once again, that promise comes in the form of a legally binding license.

    The next time any of you has the opportunity to speak with Matt Small, ask him why Blackboard is unwilling to do what all of the software industry leaders are doing with increasing frequency. Ask him why Blackboard will not provide a royalty-free license to whomever they claim that they will not sue. If you are a Blackboard customer, ask him why he won’t offer you a royalty free license to indemnify you. He clearly can. His only other truthful answer would be that it would reduce the value of the patent for him to do so. Because, you know, somebody someday may buy the patent from Blackboard, and if that somebody can’t sue you with it then Blackboard will get less money from the sale.

    Nice, huh?

  • Hiding Falsehoods and FUD Behind Legalisms

    In a recent article in the Windsor Star, everyone’s favorite plain talker, Blackboard General Counsel Matthew Small, made the following statement:

    “No patent holder can definitely say, ‘I will not do X with my patent.’ However, I can say very confidently that we are focusing on the commercial sector.”

    The first half of this statement is absolutely false and Small should (and probably does) know better. Which perhaps tells us something about the second half of his statement as well. (more…)

  • An Example of How the Blackboard Patent Could Chill Innovation

    Blackboard’s General Counsel Matthew Small has said that their patent and lawsuit is “not about hindering innovation.” It’s important that we not allow this claim to go unchallenged. I’d like to start gathering concrete examples of initiatives that are beneficial to the educational community and could be directly harmed by Blackboard’s actions. I’ll start. The first example I can think of is the developing IMS Common Cartridge standard.

    (more…)