[an error occurred while processing this directive]

learning.now: at the crossroads of Internet culture & education with host Andy Carvin

[an error occurred while processing this directive]
August302006

Blackboard, Lawsuits & Wikis, Oh My!

In case you’ve spent most of August relaxing on a beach somewhere, you might have missed the lawsuit that causing a firestorm in the edtech world and beyond. Let’s take a quick look at Blackboard vs. Desire2Learn, and see what bloggers and Wikipedians are saying about the dust-up.

Launched nine years ago, Blackboard, Inc. is the largest commercial provider of learning management systems. LMSes are software packages used by schools and universities to deliver and manage e-learning courses. Over the years, Blackboard has solidified its role as the biggest player in the market by purchasing many of its rivals, including Prometheus and WebCT. (Full disclosure - PBS TeacherSource is also a provider of e-learning services, though I personally have no involvement in them.)

On July 26, Blackboard announced it had received a US patent for learning management systems, one of several patents they had applied for around the world. The patent, however, goes beyond the specific tools developed by Blackboard. It includes “Internet-based education support system and methods” - in other words, the very concept of learning management systems. In a press release announcing the patent, CEO Michael Chasen said

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. Our leadership in technology gave rise to innovations in our products which advanced e-Learning around the world and many of those innovations are now also embodied in our patent. We are committed to continuing the development of technologies which will enable educators to fully harness the potential of the Internet to enhance the educational experience within their institutions.

That same day, Blackboard sued one of its rivals, Desire2Learn, citing its patent as legal backup. Now educational bloggers are fighting back, arguing that no one company can claim ownership of e-learning without stifling innovation. A new Associated Press article, which has appeared in BusinessWeek and numerous local news outlets, attempts to sum up the battle:

It may seem self-evident that virtual classrooms should closely resemble real ones. But a major education software company contends it wasn’t always so obvious. And now, in a move that has shaken up the e-learning community, Blackboard Inc. has been awarded a patent establishing its claims to some of the basic features of the software that powers online education….

…. Blackboard, which recently became the dominant company in the field by acquiring rival WebCT, says the critics misunderstand what the patent claims. But the company does say it must protect its $100 million investment in the technology. The day the patent was announced, Blackboard sued rival Desire2Learn for infringement and is seeking royalties.

“It just wouldn’t be a level playing field if someone could come onto the scene tomorrow, copy everything that Blackboard and WebCT have done and call it their own,” said Blackboard general counsel Matthew Small.

Waterloo, Ontario-based Desire2Learn said it was surprised by the lawsuit but will defend itself vigorously. No court date has been set.

While the lawyers on both sides haggle for position, a more personal battle is playing itself out in cyberspace. Canadian Web 2.0 guru Stephen Downes has been scouring the blogosphere for various tidbits related to the lawsuit. In his latest post, he’s critical of recent news coverage - including the aforementioned BusinessWeek article:

Blackboard is given credit for an invention (though it is characterized as “obvious” and “incremental”) although it should not be (even Blackboard’s “obvious” and “incremental” developments were discovered prior to its claim). The ‘market’ is described as entirely occupied by commercial products, which is simply false (“Blackboard has about 60 percent of the market for those systems, followed by eCollege and Desire2Learn with about 20 percent each, according to Eduventures”). And universities are said to be “borrowing from” Moodle and the Sakai project, rather than, as is actually the case, developing them and using them.

In the Pacific Northwest, Nancy White notes a link between the Blackboard suit and the DOPA legislation:

I wonder if we care about innovation in the USA anymore. We seem to spend a lot of time trying to block others, control iffy intellectual property and generally shut down the power of remixing and mashups. Wassup?

Is the culture of control a sub part of the culture of fear? (We fear the loss of our market if we don’t create patent barriers? We are not smart enough to make an offering to the market that stands on its own merits?) What would be the culture of love response to overreaching patents and uninforceable and uninformed laws?

What if we started getting creative and thinking about REAL alternatives to the over-control?

Michael Feldstein of e-Literate considers Desire2Learn’s legal options and their potential impact on education:

Suppose that Desire2Learn settles out of court. They will pay a license fee, yes, but it will probably be significantly less than their litigation costs. They will also gain an advantage in the marketplace, since some of their competitors may not be able to afford to pay the license fee when Blackboard goes after them next. Sadly, D2L would be better off settling out of court even if they are certain that they will win the lawsuit. And the pressure is on for them to make a decision quickly; as much as fifty percent of the total litigation costs happen by the end of pre-trial discovery. That’s not good for you and me. Settling would clearly not be in the consumer’s best interest. It would establish a toll road for anyone who wants to build an LMS. As my colleague Patrick Masson pointed out to me, just about every LMS commercially available in the higher education marketplace started off as a homegrown university system that was later commercialized. Blackboard itself started at Cornell, WebCT at University of British Columbia, ANGEL at Indiana University, D2L at Waterloo, and so on. The same is true on the Open Source side. Will universities continue to innovate, creating more and better choices in the marketplace, if they have to pay Blackboard an entry fee? I doubt it.

Perhaps the most interesting response to the lawsuit has occurred on Wikipedia, where a group of educational bloggers, including Feldstein, have started an entry titled History of Virtual Learning Environments. They’re attempting to catalogue the history of learning environments, and so far they’ve gone back to the 1700s. The current version of the entry is over 16,000 words long, containing more than 350 different milestones on the timeline. It’s hard to say whether the entry will in itself affect the case, but it demonstrates yet again the power of wikis as a collaborative workspace. It may have taken a lawsuit to spur them on to write the history, but a wiki gave them the tool to do it. (I wonder how long it’ll be before a company tries to patent the concept of wikis?)

What are your thoughts on the case? Does Blackboard have any business at all in trying to claim ownership of the concept of LMSes, or has their role over the years justified the claim? Will attempts by bloggers and Wikipedians have an impact, or are they pushing a giant snowball uphill? -andy

Filed under : Policy, Wikis

Responses

I’m always amazed at the way some companies work, in that it seems like they take the “gather up my arsenal and cement my fort” approach, as opposed to the “how can I make my product so absolutely good, that customers just don’t WANT anyone else” approach? I suppose I sometimes forget that educational companies can be just plain ol’ businesses, and are in it for the bottom lines - control and money. That’s a shame. What I already hear amongst colleagues is a backlash against Blackboard - people purposely leaving it for free, open-source options. I hope this patent issue doesn’t squelch efforts amongst the community to continue improving our options in this area.

It never ceases to amaze me how a company can so quickly turn folks from friend to foe.

[an error occurred while processing this directive]