The Wayward Word Press

I’m in Atlanta this week to attend the Sixth Sakai Conference. It’s the first time I’ve been to a Sakai conference and it has been a fun and educational experience so far. That’s one of the joys with working with education in the open-source arena. You can both have fun and get some education.

Sakai is a collaborative effort by several uiversities to create some software that meets their unique needs. There are about 400+ people at the conference, so it’s safe to say Sakai is clearly getting traction.

The educational community has been quite concerned of late about a patent awared to a company called BlackBoard (hereafter BB). It is known as the “Blackboard patent,” and hence comes the name of this post.

You can find some background information at Blackboard Patent
and Blackboard E-Learning Patent, and About Blackboard Patents. I attach no particular weight to these articles; they are among the first that show up when you search for “Blackboard patent.”

The Sakai foundation has engaged the services of the Software Freedom LawCenter (SFLC) to fight the patent. SFLC is led by Eben Mogen, a professor of law at Columbia University. He is probably best known for his work for well over a decade as the counsel to the Free Software Foundation, creators of the widely-used GPL and LGPL software licenses.

Today’s luncheon session featured a debate about the patent between Mr. Matthew Small, VP and general counsel of Blackboard, and Mr. Moglen. It was moderated by Joseph Hardin of the Sakai Foundation.

I took notes and they comprise most of the rest of this post. I just tried to capture the discussion. I have no particular brief favoring one side or the other.

I do have some personal observations that I will leave to a later post.

However, I should say at the start that I had been told the Eben is a very good speaker, and I can confirm this by having watched him in action. He has been thinking about these issues for years. Moreover, as a professor and teacher he is exceptionally eloquent. He also speaks quite fast, so I found it hard to accurately capture all his thoughts. This is also true of Mr. Small, though to a lesser extent.

Chuck Severance (CS hereafter) began by asking several questions, saying he would give Moglen (EM hereafter) the first chance to respond, followed by Matthew Small (MS hereafter):

• What is the scope of the patent?
• Discuss the re-examination undertaken by the SFLC.
• Your opinion on the role of proprietary software in delivery of higher education.
• Your thoughts on the future of educational software.
• How does this affect Europe? That is, please look beyond just the U.S. patent system.

EM:

On scope, I’ll pass. The patent as written is invalid in each of its claims.

On the role of proprietary software, such software will slowly disappear, along with ownership of other intellectual property such as textbooks.

When information is contained in industrial artifacts, there is the need for a structure to capture the costs of production.

But the cost in software (other information too?) is going to zero — so all will be shared.

On the role of software in education:

The most important aspect of humanity is the ability to learn. Face-to-face teaching is the most effective.

The role of educational software is to be deployed where face-to-face not possible.

The goal is to extend the cultural and geographic reach.

The current examination of the BB patent is a defensive response to an aggressive action.

The free software world is reasonable, but it is not powerless.

Re European law, the patent law there is believed to be against patents. But the United Kingdom (UK) has a system similar to that in the U.S. This has distorging effects on European market due to impact of UK. The European patent office (EPO) has converged on a definition of patents that is at odds with the desires of others, so there is a political stalemate.

The EPO bureaucrats are caught in the middle, trying to satisfy both sides. The Japanese Patent Office is much more aligned with the wishes of the industrial players.

MS: There is an absence of dialogue. BB invests in innovation, and avails itself of the available law to protect its intellectual property.

People of BB committed to improving education worldwide. Many of them were educators before coming to work for BB.

BB is a commercial software company, but it aims to be open. BB has contributed open-source software and has sponsored open-source events. BB has supported Sakai, believes BB and Sakai can work together.

On scope, BB is in midst of litigation with a for-profit commercial competitor. BB is seeking royalty payments from them.

The court will determine the scope.

He then made a general statement along the lines that if one had a course management system (CMS) in which single users could have multiple roles across courses, then the patent could apply. For example, a teaching assistant who taught one course but was a student in another.

By way of history, in the middle to late 1990’s CMS’s were websites, and were not scalabale.

BB hired a number of recent graduates of Cornell. They addressed the issue of roles in that there were different roles in differnt courses, something they had become aware of while at Cornell.

The patent was filed in 1999, approved in 2006.

BB is just seeking reasonable royalties.

On the role of software in education, BB’s products have impact on the technology of learning. Commercial software plays a valuable role in this space.

On Europe, he is not a patent lawyer and so defers to Moglen’s response.

BB will respect European law.

BB has a duty to its clients and shareholders to protect its intellectual property.

There followed a question-and-answer discussion with the audience.

Q: How can “roles” be patented?
A (EM): Question is whether there should be business-method patents. For example, spreadsheets have been around for centuries, yet Microsoft has patents on Excel.

EM: There are 44 claims in the BB patent. The “role” part is very minor (as he put it, “it is found in parentheses inside parentheses”) yet it was this part that convinced the patent examiner that the patent should be awarded.

A patent isn’t less dangerous if it is narrow. The problem is that a collection of narrow patents can have the same force as a single broad patent.

EM then said, “This the price of arrogance. They have threatened people. This is the wage of sin.”

(EM was very forceful in his remarks. I was sitting right at the front of the hall and so I could see his body language. It was clear from his frequently raised eyebrows that he was sceptical, if not derisive, of Mr. Small’s comments. While at the time I thought this was in part inappropriate, I came to appreciate the strength of his feelings — and also the reasons he was so forceful — in a later session that day that will be the subject of my next post.)

Q to BB: What is your view of the open-source community? BB has never said it would “hold harmless” universities. Can you please clarify?

MS: BB is considering a non-assert statement. (He made mention that such non-assert statements had been made, for example by IBM.) BB was considering such a statement.

It is difficult to “sue open-source.” Also, educators are customers.

Q: This is another non-issue. We need something more definite, as all still fear threat of suit by BB.

MS: If you wish to use Sakai, you are free to bundle BB’s product in your product.

Q: BB has bought its competitors in the past and then “smashed” them.

MS: BB has made several acquisitions, including “Prometheus.” Prometheus could not have survived, that is why they sold the company.

BB is not hoping to put its competitors out of business.

Q: What was the basis for the lawsuit? Was it due to similarity of code, functionality, or architecture?

MS: We make no statement that code was taken. BB determined that our patent applied and so sought royalty payments.

Q: I’ve been using BB for 6.5 years. I’m concerned about the intellectual property of students and faculty. I am especially concerned about the exporting of archives. Does BB has a right to any of these packages.

MS: BB has no ownership. Intellectual property (IP) is owned by schools. They provide the content.

Q: I don’t understand your answer. Is it ok to reverse-engineer the BB archive format.

MS: I don’t have technical background. Our contracts do say that schools can’t reverse-engineer.

(As best I could tell, the issue was whether Sakai could figure out the BB format for storing content, in order to then import it into Sakai. This is a reminder that open-ness is not just about code, but also data. For example, consider all the discussion of the proprietary format used by Microsoft for Office documents. If you write such a document then it is your words, yet the reader has to get a copy of Office to read them. Go figure. That’s also why I prefer HTML to Office.)

EM: “There is no role for trade secrets in education.”

Q: BB says it supports Sakai. How has BB in practice supported Sakai to date?

MS: BB has applied for membership to Sakai twice but was declined both times. Some Sakai code is based on BB’s API’s.

Q: Membership is not the only way to contribute. BB can get involved without being a member.

Q: Why did you sue “D2L” (D2L stands for “Desire To Learn,” the defendant in the BB suit.) Why in Texas?

MS: We only did an analysis of once company, D2L. We decided they should pay royalties.

EM: Almost all patent suits are filed in a particular jurisdiction in Texas as the judge there supports patent holders.

Here end my notes.

I learned later the session was recorded and that the recording will be posted to the web, so those with serious interest in this issue can play it back word-for-word.

However, having taken the notes, I thought it worth the effort to share them with you.