Four things to know about Blackboard

FOUR THINGS TO KNOW ABOUT BLACKBOARD

Date: April 12, 2009. Prepared by Jacek Polewczak.

1. Who owns the course content?

One of the sensitive issues of online courses hosted by outside vendors is the question of who owns the content. In spite of Blackboard claim, in Point 5 of the Terms of Use,
http://www.blackboard.com/Footer/Terms-of-Use.aspx,
that instructor’s content remains his/her sole property or the property of their licensors, the very next sentence of the same section is troubling:

By uploading or otherwise making available any User Content, you automatically grant and/or warrant that the owner has granted Blackboard, the perpetual (emphasis added) royalty-free, non-exclusive right and license to use, reproduce, modify, publish, distribute, perform, display, and transmit (emphasis added) the User Content through the channel into which you have uploaded the User Content.

2. Microsoft and Blackboard: Too close for comfort?

In 2001, Blackboard and Microsoft became business partners by forming strategic alliance to empower learners (nice oxymoron, isn’t it?):

The stated goal was for Microsoft to “own the educational-software market.” The article in The Chronicle of Higher Education (November 23, 2001):

quotes Mark V. East, worldwide general manager for the education-solutions group at Microsoft,

Despite its emphasis on Microsoft products, (emphasis added) Blackboard will still write versions for Unix and Linux, says Matthew S. Pittinsky, chairman of Blackboard. All versions will have the same set of basic features, although Blackboard for Microsoft will eventually have more features than Blackboard for Unix or Linux, he says.

”It will be more feature-rich to run Blackboard out of the box on Microsoft” than on other platforms, Mr. Pittinsky says. System administrators will have more options for configuring the Microsoft version of Blackboard than the non-Microsoft versions. End users will notice a difference between systems run on Microsoft and those run on other platforms, he says. It will be easier for users to incorporate documents from any Microsoft applications in Blackboard’s online courses. They will have just one log-on for all Blackboard and Microsoft software through Microsoft’s Passport technology. (emphasis added)

3. What does Blackboard think about Open Source Software?

If potential clients or competitors use open source software to develop products that are competitive with our products and services, we may face decreased demand and pressure to reduce the prices for our products.
The growing acceptance and prevalence of open source software may make it easier for competitors or potential competitors to develop software applications that compete with our products, or for clients and potential clients to internally develop software applications that they would otherwise have licensed from us. One of the aspects of open source software is that it can be modified or used to develop new software that competes with proprietary software applications, such as ours. Such competition can develop without the degree of overhead and lead time required by traditional proprietary software companies. If potential clients use open source software to internally develop software or if a current or potential competitor develops products using open source software that are competitive with our products and services, we may face decreased demand for our products and services. (emphasis added)

Thus, the Blackboard says, Open Source will allow their competitors and/or clients to develop quality software that is less expensive than their own product. There already exist such products, e.g., Moodle. Sakai, and others.

The American Association of Community College’s Instructional Technology Council in its 2007 Distance Education Survey Results (published in 2008),

4. Blackboard: SCO of the educational software market

Ever since infamous SCO’s lawsuit over allegedly infringing code in Linux (see [1] for details), where Microsoft was a shadowy figure in the background, Blackboard’s 2006 lawsuit against Canadian based, Desire2Learn (D2L), E-Learning company, became a token of absurd and frivolous lawsuits by companies, who want to stifle the competition and become sole vendor (monopolist) in order to “own the educational-software,” in the words of Microsoft (see Section 2).

Blackboard’s litigation appears to be aimed at the entire Desire2Learn’s product line; see paragraph 10 of the official complaint:

Blackboard claims to have originated the idea of a learning management system in which the same user (call him ”Joe User”) through a single account can have multiple roles. (See diagram below). Thus, Joe User can have the role of a teacher in one class (e.g. Physics 101) and simultaneously the role of a student in another class (e.g. English 343). Each role corresponds to a different permission set. In his role as a teacher in Physics 101, for example, he might have the permission or ability to create tests. But in his role as a student in English 343 he can only take tests, not create them. Millions of dollars have been spent on both sides over the ”intellectual property” of this single Idea. It should be noted that nearly all learning management systems implement this basic idea in one form or another and, therefore, can be said to infringe the patent.

In the same piece, Alfred Essa’s comparison of Blackboard’s approach to that of the conquistadors is also a good read:

Old-style conquistadors used to lay claim to land on behalf of the monarch by looking yonder and chanting some such phrase: ”We claim this land in the name of God and our Savior by killing everyone who already lives here. By this land we mean all the land as far as the eye can behold and way beyond also for good measure.” These days modern-day conquistadors lay claim to ”intellectual property” by going to the Patent Office and chanting the modern version of the mantra: ”We claim this intellectual property in the name of Innovation and our Shareholders by killing anyone who dares use that Idea for the next twenty years.” In order to qualify as a patent the idea, at least in theory, must be ”non obvious” to a skilled practitioner and there must be no ”prior art” (i.e. there is no record of someone else beating you to that idea).

On February 22, 2008 the provincial jury in Lufkin, Texas, awarded Blackboard damages of $3.1 million US for royalties and lost profits. Desire2Learn appealed. On March 25, 2008, the US Patent Office issued a non-final action rejecting all 44 claims of Blackboard’s patent on which the original lawsuit was based on. On November 30, 2008, Blackboard then sued US Patent Office. And the shame continues: recently Blackboard sued again Desire2Learn (The Chronicle of Higher Education, April 1, 2009):

I do wonder why Blackboard’s customers (educators with high ethical and moral standards) continue supporting a company who’s actions are so ”ethically challenged.” I empathise with their clients who are locked-in and hope that projects like Sakai and Moodle provide an escape route. This absurd patent is costing the education community millions of dollars and has only one objective: To further conquer and lock colleges, universities, and primary/secondary schools into Blackboard’s monopoly. Leaders in education should tell them clearly, in the only language Bb understand, that this behavior isn’t acceptable. I hope the court sends the same message by finding in favor of D2L.

References

[1] In 2003, SCO Group filed a $5 billion infamous lawsuit against IBM for allegedly “devaluing” its version of the UNIX operating system. On 21 of September 2007, the case of SCO v. IBM was closed due to SCO filing for bankruptcy on 14 September 2007.

Department of Mathematics, CSUN

E-mail address: jacek.polewczak@csun.edu