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.