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Blackboard's "Pledge" Not to Sue Open Source Software

Posted by Zonk on Fri Feb 02, 2007 10:22 AM
from the nice-monster-good-monster-stay-there-monster dept.
Education Software
Another anonymous reader writes with a link to the Inside Higher Education site. Those folks are reporting on Blackboard's 'pledge' not to sue open source projects used by universities and colleges. The Blackboard patent on educational groupware filed last year has come under a lot of fire, with many organizations simply seeking an open-source alternative. This newest peace offering to higher education groups has the Sakai open source consortium more than a little bit nervous. If Blackboard meant to set people at ease, all it has managed to do was confirm to onlookers that it 'wants to keep its legal options open.' Blackboard insists that this new pledge affords universities a number of legal privileges, and is designed to make educators 'sleep easy at night.' Somehow, very few people seem reassured. Update: 02/02 17:34 GMT by Z : Bad first link fixed.
+ -
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  • First link is borked (Score:5, Informative)

    by PornMaster (749461) on Friday February 02 2007, @10:25AM (#17859114) Homepage
    The first link goes to a Scoble blog entry about completely different things...
    • I'm sorry, but I'm having trouble understanding this story. The borked link doesn't help.

      If they are promising not to sue, isn't that a good thing?

      • Re:First link is borked (Score:5, Informative)

        by hahiss (696716) on Friday February 02 2007, @10:40AM (#17859324) Homepage
        Newsforge has had a few links this morning; here's a decent one:

        http://news.com.com/2100-7344_3-6155469.html [com.com]

        The gist of the situation is that Blackboard is making a pledge, but (i) apparently the constraints of the pledge are incompatible with the GPL (so it does GPL'd projects little good) and (ii) they're reserving the right to revoke the "license" from anyone that sues Blackboard for patent infringement.

        Of course, the real question here is whether they have a legitimate patent in the first place; if they don't, then the issues above go away.

        [Note: I'm not a legal expert, I'm not privvy to the relevant docs, and I've not been consulted by any parties involved. As a result, I'm not saying that the allegations are correct; I'm just telling the author of the parent post what has been alleged.]

        • It's hogwash (Score:3, Interesting)

          by sterno (16320)
          Glancing at the patent, there are two key pieces. There's a piece that talks about having a role based system where there are specifically teacher, student, and administrator roles. There's also a piece that talks about how files would be managed in that environment, permitting uploads, role based access, etc.

          I wrote a system in 1997, predating this by at least three years that did pretty much what they are saying (your patent lawyer mileage may vary). My system was a modification of an existing open sou

          • Re: (Score:2, Interesting)

            by FireFlie (850716)
            Ultimately proving once again how very useless software patents are. I am all for protecting your code/algorithms from people simply copying/pasting into their own projects if you desire, but if you are correct in your reading of the patent this is just foolish. I don't know anything about patent law, but I'm sure you are right, and there are probably a wealth of other projects that you haven't seen that predate blackboard that come dangerously close to the patent. Call of BS seconded.

            • The real problem... (Score:3, Interesting)

              by sterno (16320)
              It doesn't quite matter whether I'm actually right or not. If I was going to start up a company to develop software in that market, I'd now have to either pay a royalty to blackboard, or take my chances in court. One bright side is that a recent supreme court ruling established that you can sue blackboard beforehand to get a judgment on the validity of their patent. But still that will cost quite a bit of money.

              That's the problem is that the patent system heavily favors the people that get the patent, wh

            • Re: (Score:2)

              by JoshJ (1009085)
              The problem with the patent system is that software companies are patenting the end result.
              CUE BAD SLASHDOT ANALOGY TIME:

              A lot of software patents are like Coca-Cola patenting caffeine. This shouldn't be allowed.
              A "good" patent system wouldn't allow that.
              What would it allow?
              It'd allow Coca-Cola to patent their method for manufacturing caffeine- the equivalent would be the source code or pseudocode/specs of a program.

              • Re: (Score:2, Insightful)

                by FireFlie (850716)
                No, it's even worse. At the level the patents are actually describing, it seems that the best bad analogy would be Coca-Cola patenting "Brown liquids meant for consumption".
          • The priority date is from a 1999 application, so by US rules on priority (IIRC) the invention could have been first made public in '98. It may have been invented much sooner but not have been evidenced to have been created any sooner.

            Anyhow, the first claim (unamended in the '138 application) reads:

            +++
            1. A course-based system for providing to an educational community of users access to a plurality of online courses, comprising: a) a plurality of user computers, with each user computer being associated with
        • Isn't the very idea that they pledge not to sue anyone who is open source who has already done what they patented an admission that prior art exists? Am I missing something, or is it just that Open Source doesn't qualify for intellectual property.

          In my opinion this patent is incredibly obvious as well. It would be like patenting medical software that seperates its users into Dr.s, Nurses, and patients. Of course thats where the distinctions are, its the way these insitutions are structured.

          • Re: (Score:2)

            by hahiss (696716)
            It isn't an admission of prior art---instead, it is designed to allow projects that are currently working to continue their work. What they've done is pledge to allow other people to do what Blackboard is doing. This doesn't mean that Blackboard has admitted that someone else was doing it first.
      • no. The fact that they promise not to sue isn't a defence when they do, so no-one can really take the risk to do something that would infringe anyway.

    • Re: (Score:2, Informative)

      by sesquipedalian_one (639698)
      Try this page [insidehighered.com].
    • ZDNet [zdnet.com] has also covered the story.
  • for soon to be non existent patent infringements

    • Re: (Score:3, Insightful)

      by niiler (716140)

      Bingo. This story looks like a company trying to put a positive spin on the fact that they're in the process of losing their patents due to a plethora of prior art. Their PR people won't, of course, mention this to educators, preferring to sow FUD so that they won't lose their de-facto monopoly over courseware at universities.

      As our university is hurting for money and poorly endowed (ahem), I for one, am going to recommend Moodle [moodle.org] when it comes to renewing our Blackboard license. Based on my experienc

        • Gotta be better the POS WebCT stuff we're using now.

          As someone who was once forced to use WebCT, I can say, without reservations, that having homework assignments transmitted into your brain by having a midget repeatedly hammer Morse Code messages on a rusty screwdriver in your eye socket, would be a far preferable system, and probably more user friendly.

  • "not evil" for now, until aquired/sold (Score:5, Insightful)

    by denis-The-menace (471988) on Friday February 02 2007, @10:32AM (#17859212)
    Even with all good intentions in mind, all pleadges/promises will go out the windows when somebody buys the company.

    Either donate the patent to OSDL patent commons project or start enforcing it.
    (If you don't enforce now it makes it harder to enforce it later when greed kicks in.)

    Aren't SW patent wonderful?

    • Re: (Score:3, Informative)

      by squiggleslash (241428)

      There's a third option, which is to create a non-revokable Class License applying to software licensed under open source licenses. That way, should the company be bought, anyone using the technology covered by the license under an open source environment will remain protected.

      Personally though I'd rather just see the patent revoked. Supposedly there's another attempt brewing to get SCOTUS to look at software patents.

  • Blackboard's Quality (Score:4, Insightful)

    by Surr3al (800346) on Friday February 02 2007, @10:40AM (#17859328) Homepage
    Well, it would be one thing if blackboard actually had something to offer, but unfortunately in comparison with other open source (or web apps brewed within the edu) there really isn't much contrast. Meaning, if Blackboard had some desirable features that would be worth paying for, it would be more tempting to purchase it, obviously. Unfortunately, every feature they currently offer can be coded internally rather easily (my school proves this quite well), or it can be added in by some other module - for instance a php nuke forum.

    Maybe in realizing this - but realizing the latter point that they would be competing against their own potential customers decided it would just be really bad PR.

    • Yeah, the primary problem with blackboard is the lack of features and the poor implementation of the features that are there. Most of my teachers have abandoned using blackboard as a teaching tool- now it's just a way to give us PDFs of the homework so they don't have to run off copies.

      • Re: (Score:3, Insightful)

        by Fallingcow (213461)
        The three big uses of it here:

        1) file dump, like you said. PDFs, or, more often, .doc files.

        2) the forums get used every now and then. Mostly just for online classes, really.

        3) grade reporting. Some departments/colleges use it, others don't.

        NONE of these things requires Blackboard, and all could be replicated by a single competent sysadmin/coder in maybe a week's time, including ironing out (most) problems and making it easy and secure for the professors and students to use.
    • "Unfortunately, every feature they currently offer can be coded internally rather easily"

      Every feature of a commercial VLE can be coded rather easily?. So putting together competing free products was easy? Why not post that suggestion on the forums of Moodle or Sakai and see if they agree?
    • Blackboard is not going Open Source. They are merely stating that they will never sue an Open Source project that uses their patented stuff. Since that has previously stopped any FOSS projects from existing to duplicate Blackboard's product, this could mean a lot to the FOSS community and someone may actually create something now.

      It doesn't matter what Blackboard does and does not have in their product, only that the stuff that others can now 'do it right' in Open Source without litigation worries.

      Or at l

    • Re: (Score:3, Informative)

      by bcrowell (177657)
      Unfortunately, every feature they currently offer can be coded internally rather easily (my school proves this quite well)
      I'm the author of an open-source course management package called Spotter [lightandmatter.com], and I have to agree -- both the ideas behind and the implementation of one of these things are pretty trivial. My own software is more narrowly focused on science classes, and doesn't have some of the broader functionality in it that Blackboard has, but it still does enough that it seems to do every single thing
  • The one perspective that I havent seen in this whole debate is that BB is just trying to cover its ass on a legal basis. Think about it. Your a BB exec and you see many similar programs appearing and you have no legal claim to the technology. What would happen if someone built a very similar program and grabbed the copyright. They could then Sue BB for many monies and possibly take over. And I truly believe that they intend to honor there promise of not suing freeware/OSS system providers, clear up unti

    • What would happen if someone built a very similar program and grabbed the copyright.

      First, that's not copyright, that's patent. Please keep these straight; there are VERY important differences between the kinds of "intellectual property" law.

      Second, if they did, so what? There's this little thing called "prior art". Your legal claim is you produced the software -- if someone else beat you to the patent, but you already have the software, you win. If someone else beat you to actually developing the produc

  • http://www.blackboard.com/company/press/release.as px?id=956876/ [blackboard.com]

    In spite of the fact that it claims to be

    legally binding, irrevocable and worldwide in scope
    I don't see anything that would actually make it so. You just have a promise that they won't revoke ... and promises are as good as ???
    • A verbal contract is still a contract, and since it's in a press release it could likely be held as a contract as well. Whether it is specific to a given company or global in scope should not matter.

      So if BB decide to see an OSS project, then the OSS project could likely hit them with "breach of contract"

  • Good Old Blackboard (Score:5, Informative)

    by Jordan Catalano (915885) on Friday February 02 2007, @10:49AM (#17859448) Homepage
    See an insecurity in their systems? They'll sue you to shut you up about it.

    http://web.archive.org/web/20050404014123/se2600.o rg/acidus/campuswide/index.html [archive.org]

  • That's how it normally starts (Score:4, Insightful)

    by roman_mir (125474) on Friday February 02 2007, @10:50AM (#17859472) Homepage
    If you want to start a war with someone, first thing you should do is assure the opposite side of your eternal love and cooperation. Then, when the opposite side is all calmed down and relaxed hit them with the biggest hammer you've got and aim right for the head.

  • A big suprise (Score:5, Informative)

    by ManUMan (571203) on Friday February 02 2007, @10:56AM (#17859568)
    I am not sure what will happen with the Blackboard patent (if it will hold up, etc.), but I see this as an attempt for

    Blackboard to try to keep some face. The Blackboard product heavily utilizes "building blocks" (assuming you have the enterprise version), many of which are open source. If Blackboard is benefiting from open source, attacking open source products may kill or slow down the inovation that comes from the building blocks...

    Additionally, I think this is an attempt to try to placate those who are shouting prior art and want to go after the patent and invalidate it... The reasoning might go like, "If they aren't going after sakai or moodle, i don't really care if they have the patent." That is how I see the real purpose of this move... It seems fairly shrewd. Hopefuly higher ed will continue to go after them and educause [educause.edu] will keep the pressure up. BTW, there is a joint statement from educause and sakai (PDF) [educause.edu] on educause's website. (Here is the statement on sakai's page. [sakaiproject.org])

    --JS

  • Be Wary, Very Wary (Score:3, Insightful)

    by JumpingBull (551722) on Friday February 02 2007, @10:58AM (#17859604)

    If you look at this offer as a game of chess, they are sacrificing a small market segment usually served with discounted prices. As a telling example, most sales to the education industry are very inexpensive compared to the prices real companies and people pay. The Microsoft office suite, as an example, is discounted to under 150USD, while the average person can pay much, much more.

    The leverage this gives a company is incredible! Educators are always looking for stuff on the cheap, and the idea that a 150 software package translates into hundreds more of sales at the full price doesn't occur to them. So, they merrily specify it, and that generates a tremendous demand for later sales.

    Similarly, by "protecting" open source in an educational context, they are able to copy features that would be built in by the community. Now, the market demands are already known, and just need to be branded and productized.

    The real payoff for them is business; both as a part of infrastructure, and as a collaberation tool. Here the price for such tools can be quite high (about 10K USD).

    Don't take the cheese, it's on a trap.

  • I'm going to say, as a college student, blackboard sucks. Only about 15% of my teachers bother using it, and even among that percent, only around 50% of those who do use it know how. I can hardly use the messy interface of this horrible little system. Honestly, if I had a class, I'd just pop-up an invision or phpbb forum. I've only seen the "submit homework" feature used once. Having a place to get your syllabus is nice and all, but in the end all our teachers have free web space they hardly use anyway

    • Re: (Score:2, Interesting)

      by shashark (836922)
      I've been a user of both Blackboard and WebCT - the SAP and Oracle of (sort of) Learning Management Systems - and I've found both extremely horrible and user un-friendly to use - not to mention costly as well. I've also used Moodle - and I strongly believe its very techie-oriented. For eg, you can't expect a professor to install an Apache with MySQL and Php.

      Purely out of frustration - I created my own click and install LMS and content authoring engine named Krawler (shameless plug: http://www.krawlerx.com./ [www.krawlerx.com]
  • Come by the Albuquerque Moodle Moot [immagic.com] on Feb 16 to see how UCLA, Intel, The Open University, The Carnegie Foundation, etc. are using Moodle.

    Moodle is simply the most flexible mature LMS out there, with a wide range of completely different formats for supporting different pedagogies built in, and it's relatively easy to build new interfaces to meet the specific goals of a particular institution.

    For some of the best commentary on the Blackboard patent issue, see Al Essa [typepad.com].
  • My favorite is when it tells me I got 11.2 points out of a maximum of 10, and the class average was 13. No wonder why my GPA is so bad.
    • My personal (anti)favorite:

      "Incorrect answer: websites
      Correct answer: Web sites"

      That sort of thing happens on any Blackboard "online exam" that isn't purely multiple choice. And then each student has to email the teacher to get it fixed, and hope that he/she is actually paying enough attention to the online class to notice.
  • From BB's FAQ: [blackboard.com]

    My company would like to incorporate Open Source Software into our proprietary software (e.g., include the Sakai Course Management System as part of a commercially-licensed software package). We won't be charging for the portion that contains the Open Source Software but will be charging for our proprietary portion. Is my company covered by this pledge?

    No. To the extent that any proprietary software is Bundled with the Open Source Software, this pledge would not apply. However, if your cus
  • I always liked the acronym LEIA, Learning Environment Independent Architecture (LEIA), Independent as in "Open Standards, Open Source, Open Content, Open Learning" always free from authoritarian control or domination by someone or anything. [AKA: Learning-governed by Reality, Facts, Science, Math, Humanities, Arts/Cultures ...]

    Learning should not be controlled by government, politics, corporations, plutocrats, revisionist, religious-dogmatist .... Learning tainted by religious, business, and/or political g
  • When I was in school, we had a small team which developed, tested, and distributed educational groupware. According to our director who went to collect awards [washington.edu] for the good work, the Blackboard people were dumbfounded when he told them that his team was basically a group of sub-$10/hr undergrads plus a few grad students from the biology and sociology depts. Other schools actually offered to buy our software over Blackboards, from what I've heard.
    • That, in fact, is the Microsoft strategy. There was a funny spoof years back, sort of a take off on Star Trek in which the enemy ship (Microsoft) prepares to attack. They don't deploy a photon blaster, rather the pod doors open, and a column of suits (replete with brief cases) emerges - oh no! - lawyers!

      But at least in one case, very similar to Blackboard's situation (with prior art), Microsoft actually did the right thing. In their new version of Visual Studio, they had something called "Object Bench",

  • Reciprocation? (Score:3, Funny)

    by linvir (970218) * on Friday February 02 2007, @02:35PM (#17863482)

    What do you say, guys? Should we pledge not to sue them in return?

    No wait, that'd be really condescending.

  • For Blackboard to even have applied for these patents is evil and possibly fraudulent. Their pledge provides no security to anyone, and more looks like an attempt to give them some legal and PR breathing room. I hope they'll get sued into oblivion.

  • Blackboard insists that this new pledge affords universities a number of legal privileges, and is designed to make educators 'sleep easy at night.' Somehow, very few people seem reassured.

    There is absolutely no cause for concern. The wings are not on fire [uibk.ac.at].

  • I'm glad they're doing this. Patent lawsuits could really undermine much of "the pioneering work being done by educators in the e-learning 2.0 space." [slashdot.org] Whatever that means.

    • Re: (Score:2, Informative)

      by Patent-Monkey (1036772)
      Clearly, they have only received one issued patent and the rest of the application cannot be asserted until the claims are set in stone. They have US Patent 6,988,138 [patentmonkey.com] which is currently under review as well. It is a great point that they've got more applications coming and this needs to also be considered.

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