Having recently watched an entertaining DVD, Pirates of the Caribbean [1], the name Blackbeard comes easily to mind. And why piracy and Blackbeard? Because, by the time you read this column you may know something about an astonishing action by Blackboard Inc. The company announced in a press release dated 26 July 2006, that "it has been issued a U.S. patent for technology used for internet-based education support systems and methods. The patent covers core technology relating to certain systems and methods involved in offering online education, including course management systems... patents corresponding with the U.S. patent have been issued in Australia, New Zealand and Singapore..." [2]. The patent referred to is United States Patent 6988138, filed on "June 30, 2000" and apparently granted on 17 January 2006 [3]
Why has it taken over six months for this news to break? Who was asleep on the IT watch? Some hypotheses are discussed below, but in brief the news broke because Blackboard Inc., widely regarded as top dog amongst commercial providers of LMSs (learning management systems) [4], has sued Desire2Learn Inc., distant second in the commercial LMS ranks, for patent infringement, filing in the U.S. District Court, Eastern District of Texas, on 26 July 2006 [5]. I'm not familiar with the correct legal jargon for this, but upon reading the copy of Blackboard's filing provided by The Inquirer [5], it seemed to me that Bb has initiated a 'pre-emptive nuking' of D2L [6].
The Bb strike on D2L ignited commentary on blogs and forums [7], lists [8] and in some newspapers [9]. In this humble column, I'll try to illustrate the fervour of the reaction against Bb, the fuzziness of the dividing line between intellectual property and intellectual piracy, and the role that we and our academic societies may play in informing our institutions and the Australian Government office that is the most involved, IP Australia.
Firstly, there is no doubt about the fervour of the the anti-Bb backlash. Consider a brief, illustrative sample of 'backlash' phrases from some forums and lists [7, 8]: "Software Patents are Evil"; "...almost equivalent to Microsoft trying to patent the concept of a web browser"; "Blackboard can shove their WebCT"; "Vultures"; "If this is their business style, then I want absolutely nothing to do with them"; "Blackboard has turned its back on those who have built it up from scratch"; "...they'll drain D2L of financial reserves and establish a legal precedent that they can use in subsequent cases against other entities". If I were a Bb executive, I would be engaging maximum hyperdrive on the corporate damage control system.
Related to the anti-Bb backlash, there is widespread scepticism [7, 8] about patent law and its administrators: "Isn't it ridiculous what the patent offices allows companies to patent?"; "...probably it's one more of those 'cases' that are needed to finally crash the whole patent industry worldwide and send all those patenting bastards to hell!"; "The ever-brilliant US Patent and Trademark Office has apparently granted Blackboard a patent for... well... pretty much anything remotely related to learning management systems".
Also related to the anti-Bb backlash, there are academic analyses of the flaws in a system that allows patents where patent law should not venture:
...what Blackboard claims to have invented in 2000 is almost an exact clone of what I described in 1997 and published in 1999. ...my response to Blackboard is this: where do you get off taking /my/ invention, which I shared freely with the rest of the world, in order to advance learning, and claiming it as your own? Is this the model of learning to which you subscribe, to use the legal system to deny learning to people who cannot afford it? [10]And there's much academic-amateur-legal advice of the kind: "...Desire2Learn could also use the defense that the patent is 'obvious' to a 'person having ordinary skill in the art'"; or, very succinctly, "...we need to flesh out a ton of prior art" [7, 8]. The specific term "prior art" is new to me, but it seems to be equivalent to IP Australia's statement about one of the prerequisites for granting a patent: "...the invention must not be obvious to someone with knowledge and experience in the technological field of the invention" [11]. As you may expect, numerous veterans of the 90s, including myself, are combing the archives for recorded evidence of LMS developments or component developments that precede Bb's patent filing date in Australia. There is the problem, referred to earlier, of "being asleep on the watch", or to be more specific, "being too focussed on pedagogical issues and neglecting the corporate issue". To quote a somewhat risque statement of the corporate issue, "Do we think open source Moodle is driving the cutting edge trends? Which suggests that the mega corp will need to catch up to rear end us" [7]. Or, in the also risque warning from another Moodle Forum correspondent, "My experience has been that the bad guys will come up and bite you in the bum if you aren't looking under every rock for them." [7]
Secondly, I believe that we need to publicise concerns about the fuzziness of the dividing line between intellectual property and intellectual piracy. One theme in the anti-Bb backlash discussed above [7, 8, 9] is a deeply resentful feeling that Bb has, in effect, 'pirated' everyone else's academic work, and fluked an assignment of intellectual property rights, with the help of an examination procedure that many view as flawed. Now being duly licensed to sue, that is precisely what Bb is doing, in effect accusing others of patent 'piracy' (infringement). To assess for yourself whether Bb's patent really does represent an "...inventive step" [11], read their pitch filed in Australia, Standard Patent Application No. 2005203324 [12]. The actual date of writing isn't clear, probably 1999 or 2000, so in looking for "prior art", try pre-2000. For example, scan AJET 1996-1999 [13] and you will see a progressively increasing proportion of articles that are concerned with online learning, using the Internet, etc, for education, or as Bb terms it in the patent's title, "Internet-based education support system and methods". Check Hart (1996), Freeman (1997) and Brown (1997) for starters [13]. Around the world there is quite a large number of educators who worked very hard and effectively to implement fundamental change based upon the technologies, and who wrote papers for AJET and many other publications, prior to Bb's patent applications. Quite justifiably, many will resent and dispute Bb's claims in the press release [2] and in the patent [12], such as:
"For nearly a decade, Blackboard has been a thought leader in the e-Learning industry and has developed products that have helped to fundamentally alter how educational institutions and their educators teach and communicate with students," said Michael Chasen, CEO of Blackboard. [2]In my own reading of Application No. 2005203324 I looked for evidence of "thought leadership", but in my humble opinion the document contains more "thought copying" than "thought leading". For example, the second quotation above seems to me to just restate something that our librarians at Murdoch University were busy doing even before the arrival of the first web servers and web readers (just change "present invention" to "Library website").The present invention also provides for access to a plethora of academic resources that supplement the student's online education experience. The user may browse discipline-specific information, resources and communities linked to each course website [12, p.31 of 120]
To take just one example of claims in the "We claim" section of Bb's application:
Heck, that's what we were doing in Murdoch University's TLC in 1995, where the 'system' was a Unix computer known as 'cleo', running among other programs the NCSA web server that predated Apache, and shareware discussion forums Discus and NetForum. The 'network' was the campus LAN, 10 Mb/s Ethernet. All very communal, public, published knowledge [for example, 14], nothing patentable about cleo (though it was a sad day when cleo was retired). However, my humble opinion about what's patentable and what's not, and the intellectual property-intellectual piracy dividing line, is unlikely to have any influence upon events in the scene where these matters are determined for Australia, at IP Australia [11]. For a good short cut into researching Bb's patents in Australia, see Blackfate [15].
This links into my third topic, what roles can we and our academic societies such as ASCILITE, HERDSA and ODLAA undertake in informing our institutions and IP Australia about this issue? It's a big issue, and a task for teams, notwithstanding Blackfate's individual effort [15]. Academic societies should be in a leading role, representing their older members who did the "prior art", and their younger members whose future work should not be stifled by the threat of Bb's big legal artillery. As publishers, the societies possess the research papers that, in my humble opinion, substantiate "prior art". If acting together, societies could afford the specialised legal advice that is an almost mandatory feature of the patent world. Also, societies can decline to invite Bb to sponsor and attend conferences. On institutional fronts, the task may be harder, but at the very least every one of us can insist that the ethical record of a software supplier should be evaluated, just as carefully as we evaluate fitness for purpose, user friendliness, cost and numerous technical details. We should propose that every institution needs a "Plan B", so to speak, for changing LMS provider, should things become really nasty as Bb's strategy unfolds and if attacks upon its patents are unsuccessful.
| Author: Roger Atkinson retired from Murdoch University's Teaching and Learning Centre in June 2001. His current activities include publishing AJET and honorary work on TL Forum and other academic conference support and publishing activities. Website: http://www.roger-atkinson.id.au/ Contact: rjatkinson@bigpond.com
Please cite as: Atkinson, R. (2006). Has Blackboard become Blackbeard? HERDSA News, 28(2). http://www.roger-atkinson.id.au/pubs/herdsa-news/28-2.html |