Being Fair to Blackboard

Al Essa has taken me to task a bit for appearing to favorably compare Microsoft and IBM to Blackboard. He notes that companies can be good corporate citizens on certain patents while predatorily asserting other patents. Let me make a couple of points in response. First, my intention wasn’t to say that Microsoft or IBM is “better” than Blackboard somehow. My intention was only to show that Matt Small’s assertion that patent holders can’t make definitive statements about how they won’t assert their patents is not only false but also flatly contradicted by well-publicized behavior of several large, conservative, pro-IP companies. Second, although software patents in general make me queasy, I am not personally taking the position that we should be fighting to end all software patents or even that there is never a case when software patents should be asserted. I suspect that Al and I may differ on this point. There is plenty of room for legitimate disagreement among intelligent and fair-minded people about how broadly we should be defining the “problem” that we are trying to solve. My own personal interest right now is focused on taking pragmatic steps to end the specific threat to innovation in e-learning technologies and to use market mechanisms (as opposed to legislative mechanisms) to do so.

Finally, and in some ways more importantly, I agree completely with Al on the larger point that it is important to be fair to Blackboard. In fact, I’ll go further. If Blackboard (a) drops their suit against D2L, (b) offers some kind of reasonably broad and legally binding pledge of non-assertion of present and future patents, and (c) provides material support to the creation of industry-wide measures intended to blunt the threat of patents to innovation in education, I pledge to do everything I can to help them repair their reputation and reap the benefits of good behavior. I don’t hate Blackboard. I hate what they are doing. And I want their help. At the end of the day, I look for actions that will provide the greatest benefit to students and teachers. Period. If Blackboard helps foster innovation in e-learning by working to prevent the sort of threat that they are currently demonstrating, then I’m fer ‘em. If they continue to use intellectual property law to create barriers to entry for potential innovators, then I’m agin’ ‘em.

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About Michael Feldstein

Michael Feldstein is co-Publisher of e-Literate, co-Producer of e-Literate TV, and Partner in MindWires Consulting. For more information, see his profile page.
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29 Responses to Being Fair to Blackboard

  1. Alfred Essa says:

    Michael, I completely agree. Blackboard statements are, at best, disengenuous and, at worst, dishonest. They need to be taken to task.

    My point is that as we hold Blackboard to a certain standard of behavior and accountability, we should do the same with others. I honestly do not know whether the IBM, Microsoft, and Suns of the world are aggresively asserting patent rights behind the scenes. It would be useful to know.

  2. I don’t think we’re far apart, Al. Your post just gave me an opportunity to clarify my own position.

  3. Jesse Ezell says:

    Microsoft is one of the prime examples of companies who are responsible with their patents. Microsoft uses its patent portfolios almost exclusively in a defensive manner. Every single case I can think of in recent history involving Microsoft, a patent, and a lawsuit has been Microsoft being sued, not the other way around.

    In fact, not only is Microsoft promising not to sue people that infring patents on technologies that get integrated into standards, it also is making it so people dont even have to apply for a patent license to begin with, as well as submitting huge chunks of specifications to standards bodies like ECMA (Microsofts two most important recent technologies: the .NET framework and C# for example). Additionally, we see Microsoft completely opening up other important technologies like Atlas (Microsoft’s AJAX library has a completely open source control toolkit) and WIX (the Windows Installer XML project, very cool installer technology being used in upcoming Microsoft product releases).

    So, the bottom line is that Blackboard isn’t even in the same league with Microsoft’s behavior. Regardless of what you might think about their pricing or bundling practices, they are almost as good as it gets when it comes to the patent arena.

  4. Sean says:

    As much as I don’t like the idea of patents on ideas, it appears that the process of accumulating patent arsenals is just “doing business” for many companies. Is it possible that open source communities need to consider this as a cost of doing business? Is an open source license enough to ensure that your product is safe from a flawed patent system? The patent commons for open source projects makes sense to me in this light.

  5. Scott says:

    Jesse,

    Microsoft may indeed be a good patent citizen (though we can’t confirm that from the few citations you’ve offered up). But I can’t at face value accept your premise that Blackboard is behaving less admirably than Microsoft, a company that has been around for 30-plus years, accumulated hundreds of patents, and at some point may have wielded them in unseemly ways. Just because Microsoft has exhibited good behavior in recent years doesn’t mean that has always been the case.

    Comparing the companies is a stretch to begin with. Microsoft’s market cap is 362 times the size of Blackboard’s. Relatively speaking, Blackboard is still in its infancy and as such doesn’t have the clout, stability, and entrenched base that allow Microsoft to behave as magnanimously as you imply.

    To make a comparison between these companies, one would have to examine Microsoft’s behavior at a similar juncture in its evolution as a company. And I doubt anyone here has undertaken the research to know one way or the other.

    Yes, I’m probably splitting hairs with this argument. But I feel compelled to speak up when the current “patent hysteria” leads someone to compare Blackboard with Microsoft, a company that has employed some of most odious tactics in the annals of American business. Indeed, perhaps only WalMart has earned a reputation worse than the folks up in Redmond.

    Let’s all take a deep breath and let the current patent imbroglio run its course. I think it’s rank speculation to predict Blackboard’s intent at this stage in the game. This is a pending legal action, and it may turn out that there is merit to Blackboard’s case against D2L. Point is, none of us know, and as such we should refrain from demeaning any company involved until the facts are out and the matter settled by the courts.

  6. I think you missed Jesse’s point, Scott. There are lots of software companies, large and small, who have chosen not to assert patents. (eCollege is a good example of one that is much more closely analogous to Blackboard.) As for refraining from demeaning, I don’t that that’s what Jesse was doing. He was making a fact-based comparison of the behaviors of two companies.

  7. Scott says:

    Michael,

    That may well be true. But when a small company like Blackboard with not much of a track record is compared unfavorably to Microsoft, whose tactics are nearly universally disdained, I think Blackboard’s critics are sorely in need of perspective.

    Honestly, Michael, given the depth and breadth of Microsoft’s operations, do you truly believe anyone short of a full-time researcher could make a meaningful comparison between the two companies? A few facts on either side can’t possibly tell the whole story.

    I have nothing personal against Jesse. I’ve just grown weary of the hyperbole and hysteria that has attended the Blackboard patent. I’m not crazy about the patent myself; I’d prefer Blackboard grow and thrive by building excellent products that people line up to buy. Alas, they have made an initial foray into using this new patent, and it’s far too early to predict their ultimate intentions or the impact of this legal action on the e-learning community.

    But that doesn’t stop folks from making ludicrous comparisons to a company like Microsoft. I think Jesse’s recall is selective and short. Seems to me that as recently as 1998 Microsoft was playing games with its implementation of Java for the sole purpose of taking Sun out at the knees. The subsequent rage from the Java community is what, I suspect, has incentivized Microsoft to change its tactics.

    Whereas you see Jesse merely stating facts, I see him cherry-picking the facts that allow him to make an unproductive and unfair comparison to a company which has hardly been anyone’s role model.

  8. You’ve picked the wrong site to call the patent issue “hyperbole and hysteria”–particularly after praising my objectivity in your comment on another post. The fact is that *I* was the one who made the first comparison to Microsoft in a prior post. Jesse was simply picking up the thread. And I stand by my comparison.

    What’s sauce for the goose is sauce for the gander. Matthew Small, in arguing that the Blackboard patent is *not* a game-changer, made an analogy to the automobile industry? Is that any more apt a comparison? The fact is that it’s tough to find a close comparison–probably because there are few industries the size of this one where anyone was dumb enough to bother asserting a patent. We take our data points where we can find them, and a certain amount of caveat emptor applies. But it certainly *is* fair to ask what other software companies are doing with their patents.

  9. Jesse Ezell says:

    Scott,

    While Microsoft has been extremely aggressive in its business tactics, it’s a well known fact that the company only uses patents defensively. What you are doing is changing the subject from patents to general business practices, which has nothing to do with what I was talking about and little, if any, relevance to the topic at hand, Blackboard’s handling of their eLearning patent. If you want to say I’m wrong, that’s fine, but at least provide an example that has something to do with patents to back up your claim.

  10. Scott says:

    Michael,

    My response was solely in response to Jesse’s comment. Fact is, while I can’t offhand document a case where Microsoft used a patent offensively, neither can Jesse assert with full confidence that Microsoft has never done so. His recent examples notwithstanding, Microsoft is a company with a 30-year history. I can’t see how anyone among us could possibly know the whole of Microsoft’s patent actions. And that being the case, a comparison between Microsoft and Blackboard is unjustified conjecture.

    And while we’re on the subject, I ask with all respect: what is the difference between an “offensive” and “defensive” use of a patent? Are these generally accepted patent terms? It would seem that to some degree Blackboard’s patent action is defensive in that the company believes its patent has been infringed, which is a reactive stance. Is the request for licensing fees what makes this an “offensive” action? If not, then it would seem that all patent actions are defensive in nature; after all, that’s the reason a patent was sought in the first place–to defend against entities who would copy your work without compensation.

  11. “Defensive” use of a patent means a company only uses it to protect against other companies suing for infringement. And yes, the terms are generally accepted.

  12. Jesse Ezell says:

    I fail to see how it can possibly be unjustified conjecture when Microsoft is promising not to sue people over its patents out in the open while Blackboard is actively suing people.

    http://www.microsoft.com/interop/osp/default.mspx

    In fact, Microsoft is not only promising not to sue people, but they are also trying to get the laws changed to prevent the kinds of lawsuits like Blackboard is pursuing from ever happening:

    http://news.com.com/Microsoft,+Oracle+call+for+patent+reform/2100-1030_3-5683240.html

    So again, if you are going to say I’m wrong, offer some facts. Don’t cop out and say that I can’t possibly know what I’m talking about simply because Microsoft has been around for 30 years. I could care less what they did 30 years ago, or what they are going to do 30 years from now. The fact is that in recent and relevant history, the two companies are behaving in quite opposite manners.

  13. Scott says:

    It took only 30 seconds to find an instance of Microsoft suing for patent infringement. I don’t mean to play a game of “gotcha” here. My main point is that comparing Blackboard to Microsoft is a sensational claim that doesn’t belong in a reasonable dialogue about the current patent situation.

    http://news.zdnet.co.uk/business/legal/0,39020651,39280317,00.htm

  14. Jesse Ezell says:

    Did you even read the article? This is a perfect example of Microsoft using it’s patents defensively:

    “In a statement, Microsoft said it has no intention of seeking financial compensation but instead simply wants the unlicensed Belkin products out of the US market. Microsoft considers the importation of products with unlicensed U2 technology into the United States to be encroaching on its utility patents.”

    Also, these are very specific hardware patents on a specific technology that Belkin knowingly included in its products and just refused to pay the fees. Suggesting that this is similar to the Blackboard case in any way is laughable.

  15. Scott says:

    Well then, Jesse, it appears Microsoft is talking out of both sides of its mouth. They’ve filed an IP suit in the last few months.

    I don’t deny the general thrust of your argument. I only bridle that you seemingly consider Microsoft a better corporate citizen than Blackboard due to a few select data points.

  16. Scott says:

    Microsoft doesn’t need to seek financial compensation in this case. By keeping Belkin’s products out of the U.S. market, it’s indirectly getting the compensation it seeks.

    And if Belkin refused to pay the “fees,” as you suggest, does that not mean that Microsoft is using one of its patents to collect said fees?

    If I’m wrong, I’m wrong. But I’m not seeing the distinction you are

  17. Jesse Ezell says:

    There is a vast difference between a company coming out with specifications for a certain type of hardware component and insisting that companies who want to use the technology pay a small license fee and what Blackboard is doing. For example, while MPEG-LA holds the patents for the techonlogy behind MPEG-4, I don’t have any major problem with it, because their intentions were extremely clear from the moment they advertised the techonlogy and they remain extremely clear to this day. They have an extremely specific patent on and extremely specific technology and they charge an extremely small fee for you to include it in your devices. If MPEG-LA were to sue Sony for refusing to pay the license fees for it’s MPEG-4 players, this would still fall under the idea of defensive patent use.

    You don’t have to take my word for it, look up patent in Wikipedia and you will find Microsoft listed under the examples of defensive patent holders:

    “Defensive patents

    Many software companies, such as Oracle Corporation, a proprietary software firm, and Red Hat, an open source software firm, are generally opposed to the patentability of software[21]. Their position is that copyrights and trade secrets provide adequate protection against unauthorized copying of their innovations[22]. Nonetheless, these companies do file and receive patents. As of September 2006, for example, Red Hat has 8 issued US patents and Oracle has about 350 issued US patents.

    Their stated rationale is that since their competitors get patents, they must get patents as well for defensive purposes. Microsoft, for example, has about 7,500 issued US patents. In the event that they get sued for patent infringement by a competitor they can counter sue using their own patents. The net result is that both companies often cross license each others’ patents at little or no out of pocket costs for either party.

    This strategy, however, is not effective against software companies whose primary business is licensing their patents. These companies are often referred to by the pejorative patent troll. In this situation an infringing company must either license the patents, design around them, or fight them in court. Oracle, for example, recently sued EpicRealm to have one of their patents covering a method for delivery of dynamic Web pages declared invalid. EpicRealm assert this patent against one of Oracle’s licensees and Oracle anticipated that the patent would be asserted against them in the near future.”

    http://en.wikipedia.org/wiki/Software_patent#Defensive_patents

  18. Scott says:

    Fair point, Jesse.

    I didn’t mean for this thread to wander off into patent law. I simply object to the degree to Blackboard is being pummeled given that the litigation is still pending and we still don’t know what Blackboard’s future posture will be.

    I think all industries are unique. Just because Microsoft can take such a high-minded stance in its industry doesn’t mean Blackboard can afford to do the same in its. For all I know, Blackboard sincerely believes that D2L essentially plagiarized Blackboard’s software and is profiting from what would be a shortcut to market. To use a mushing analogy, it’s hard work to break trail, and in the Iditarod it’s common for the competitors to take turns in front as opposed to laying back and benefitting from someone else’s efforts. If it turns out that D2L gained a competitive advantage by cloning Blackboard’s e-learning system, then I can understand Blackboard’s desire to say, “Hey, our investors have poured $100 million into the research and development of this product, and we intend to protect them against companies who would duplicate software made possible by their investment.”

    Now I’ve never used D2L, so I can’t speak to the similarities between the products. But if D2L did indeed copy Blackboard’s software, then they aren’t deserving of the heroic underdog status that some have granted them. To the contrary, it would make them bottom feeders and hardly worthy of admiration or defense.

    But as I keep saying, we should let the process run its course. I do believe if there is no out-of-court settlement, a trial will bring much-needed clarity to the situation.

  19. Scott says:

    I should amplify my point about the uniqueness of industries. It’s more to the point to say that Microsoft is an established and entrenched player in its industry, whereas Blackboard has no such stranglehold in an e-learning industry that is still very much in its infancy.

    Bottom line: Blackboard still needs to aggressively improve its products and monitor its competitors if it is to retain its majority market share. At this stage in the game, nothing can be taken for granted. All it takes is a couple of bad moves, a bad product release, the advance of a competitor who didn’t have to “break trail,” and Blackboard could fairly easily give up its perch in Higher Ed e-learning. I think that is probably part of the motivation behind the D2L suit.

    OK, back to work. Thanks all for the thoughtful responses.

  20. Alfred Essa says:

    We have to judge Blackboard for its own actions and the comparison to Microsoft is probably misleading. That’s the only point I agree with in Scott’s remarks.

    Scott says things like: “if D2L did indeed copy Blackboard’s software..”, “If it turns out that D2L gained a competitive advantage by *cloning* Blackboard’s e-learning system,..” These types of remarks show a complete lack of understanding of the patent case.

    D2L did not “copy” or “clone” Blackboard’s sofware. Nor is that the accusation. Go back and try to understand the distinction between copyright and patent.

    D2L is being taken to task for implementing an IDEA. That IDEA did not originate with Blackboard. It was stolen from the commons. Whether or not the courts establish that, the community of experts in computer science and e-learning will soon enough.

  21. Scott says:

    Alfred,

    I think you’re reading me too literally–and interpreting the words “copy” and “clone” rather narrowly. If we can move beyond my choice of verbs just for a minute, my point is this: if it turns out that D2L took Blackboard’s implementation of a learning environment (i.e., the IDEA, as you put it) and essentially monkeyed that IDEA, then Blackboard may have chosen to sue because they have millions invested in their IDEA (whether it should be patentable or not), whereas D2L, I believe, has bypassed the capitalization stage (i.e., private financing) and may have been able to do so by copyping/cloning/imitating/monkeying (choose whatever verb you prefer) Blackboard’s IDEA.

    BTW, I perfectly understand the distinction between copyright and patent, but thanks anyway for the insulting implication to the contrary. Did you actually think I meant that D2L might have copied the source code itself? I mean, come on.

    Thanks also for restating the obvious–i.e., that the core of this whole brouhaha lies in establishing the origin of the IDEA. I thought that went without saying. My primary point was merely to speculate as to the mindset that prompted Blackboard to pursue litigation against D2L.

    BTW, I’m no fan of the patent and no apologist for Blackboard. I *am* trying to provide an alternate perspective for the torch-wielding mob that has vilified Blackboard beyond what I believe is reasonable. (And no, Michael, I don’t include you among that mob. ;) )

  22. Alfred Essa says:

    Scott,

    If you want to debate the merits of the patent case, let’s do it. I agree with your basic point that we need to be careful when making comparative judgments (e.g. Microsoft vs Blackboard). This thread began with my making the same point.

    But you don’t contribute to the debate one bit by flinging rhetoric around such as “torch-wielding mob”. Do you wish to name names? Who might be members of this mob?

    You state that you understand the distinction between a patent and a copyright. But then you go on to repeat the Blackboard propaganda that they have invested millions of dollars in their IDEA. Blackboard has invested tens of millions of dollars in developing code (no one disputes that) but zero dollars in developing the IDEA underlying their patent. You might want to take the time to understand this basic distinction.

  23. Scott says:

    Alfred,

    OK, I’ll plead guilty to a little unnecessary rhetoric. But if you haven’t seen the inflammatory, uninformed bashing of Blackboard that’s floating around on the Web, then I suggest you Google “blackboard patent” and see for yourself some of the nonsense being written.

    As for the contention that I “go on to repeat the Blackboard propaganda,” I was merely using your language (“IDEA”) to express my original point.

    No, Blackboard didn’t event the idea of e-learning. I don’t believe that, never said that. But Blackboard has invested a lot of money in developing and enriching the idea, and that’s my primary point. If a company like D2L comes along and rides someone else’s development dollars, does that not have a chilling effect on investment in e-learning? Why should I throw $50 million into a company if I can sit back, invest nothing, and then use the other company’s advances as a blueprint for my own product? It seems there is no legal remedy for this scenario, assuming as many do that this patent is so broadly written and lacking in merit that it wiil surely be overturned. Nevertheless, Blackboard’s advancement of the IDEA certainly should be recognized. To dismiss Blackboard as a “patent troll,” as many have, is unfair in my opinion and fails to recognize the company’s significant contributions to e-learning around the globe.

    And it’s completely unfair to diminish those contributions as nothing more than “code.” Blackboard has spearheaded a tremendous amount of conceptual development in the idea of a full-blown e-learning system, particularly as it pertains to the complexities of back-end integration that go far beyond the basic e-learning framework that most agree existed before Blackboard’s patent application was filed. These advances have little relevance to the patent as written, granted, but it should serve as a reminder that Blackboard has been a huge contributor to the evolution of the e-learning environments that so many students use today.

    Anyway, until such time that the patent is overturned (if indeed it is), Blackboard apparently intends to use the patent to, among other things, protect that significant monetary investment in its products. This doesn’t seem like a ludicrous or predatory action to my mind; though I do wish–as I have stated many times–that the company had instead focused its energies on building a start-of-the-art product so good that it protects itself.

  24. Scott says:

    Michael,

    Did you ban my e-mail address because you no longer wish me to post to this board? If so, I’ll gladly take my leave. All you have to do is ask.

    Scott

  25. Jesse Ezell says:

    I agree with Alfred, Scott may know the dictionary definition of a patent, like every 8th grade student in the country. However, his conceptual grasp doesn’t seem to have progressed beyond that, as he keeps coming back to the idea of D2L copying the product and Blackboard investing millions on the product as if it has any relevence to the patent. The idea certainly did not cost millions to develop (especially considering that the ideas in the patent didn’t even originate with Blackboard). The expression of the idea (ie. the product) might have, but that has no bearing on the subject. They would still own the patent if they hadn’t spent a penny of their own developing it afterward into a product.

    I agree with Scott that Blackboard has contributed to the Elearning space. But, again, the fact that they have contributed to the space has no bearing on whether their actions in this patent ordeal are justified.

    Regardless, he does seem very passionate about the subject for someone pretending to be objective. Apparently passionate enough to mistake you and Alfred for people who aren’t being levelheaded and intelligent about this whole situation.

  26. I didn’t ban you, Scott–at least not on purpose. I’ve been fighting with a comment spammer all weekend and accidentally caught you and a couple of other innocents up in the net. Your privileges should be restored now. (Sorry about that.)

    That said, I do think this debate has outlived its usefulness. I think we all know where everybody stands on this issue.

    I would also ask all parties to refrain from ad hominem attacks in the future.

  27. Scott says:

    Geez, I don’t know what to say. I don’t think you’re actually reading what I’m writing. I wrote:

    “These advances have little relevance to the patent as written, granted….”

    “It seems there is no legal remedy for this scenario, assuming as many do that this patent is so broadly written and lacking in merit that it will surely be overturned.”

    Seems as if I prematurely praised your decorum, Michael. To liken my knowledge of patents to that of an 8th grader is certainly an inflammatory and unjustified thing to write. Am I a patent lawyer? No. Are you? I don’t think so.

    It seems as if you and others won’t accept at face value that I’m as disappointed by, and opposed to, the patent as you are. I’ve only tried to add some balance to a conversation that is almost unremittingly anti-Blackboard.

    Perhaps I *have* fallen short of attaining objectivity on this subject. But to imply that I’m “pretending” to be objective … wow, that’s extremely cynical and flat wrong. And I might say that with the exception of some of Michael’s posts, one of which I specifically commended, I haven’t seen a lot of objectivity from the other participants on this board.

    But that’s OK, because true objectivity is a difficult thing to attain. Our perspectives on the world are invariably colored by our backgrounds and our experiences. As a former newspaper reporter, I can tell you that many journalists don’t even believe in the concept of objectivity. The goal in journalism, and my goal here, is to seek balance and remain fair to all parties involved. I fall short of that standard more than I’d like, but it’s certainly what I strive for.

    I’ve truly enjoyed the back-and-forth here and learned a lot from folks who have knowledge that I lack. But Michael, your decision to callously diminish my good-faith attempts at dialogue has exposed a second row of teeth. It was your gentlemanly demeanor that drew me to this board in the beginning; now the lack of same is driving me to find some other place to discuss the issue.

    And I have ask … have you considered that perhaps *you* are the one pretending to be objective? As Oscar Wilde said, “All criticism is autobiography.”

    Best to all. I truly hope for a resolution that allows Blackboard to thrive and the e-learning community to innovate. I believe strongly in the power of unfettered creativity, and I sincerely hope the current litigation doesn’t jeopardize experimentation and exploration on college campuses.

    Best,
    Scott

  28. Scott says:

    Michael, much to my dismay, I see that I errantly attributed the “8th-grade” crack to you. The e-mail notification of a new post came from your address, and I carelessly assumed that the post was yours.

    Michael, please accept my apologies. I should read more carefully next time.

    I hope it goes without saying that my original impression of you was correct, and I’m so very sorry to have mistakenly suggested otherwise.

    Best,
    Scott

  29. Let me try this a second time.

    Please let this thread die. It has degenerated into a largely content-free flame war.

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