Blackboard Won. Making the case for open source

Blackboard Won:This just in

A Texas jury has found Kitchener software company Desire2Learn Inc. guilty of infringing on an American competitor’s patent.The verdict, announced this afternoon, allows Blackboard Inc. to demand a ban on sales of Desire2Learn’s products in the United States.

(Via e-Literate.)Michael F. isn’t the only one who’s speechless at this decision. The precedent this sets is uncomfortable on many levels, despite the fact that both:

  1. The patent itself looks to be well on the way to being invalidated
  2. I doubt Desire2Learn will have any trouble getting more Amicus motions filed for them at any subsequent trials or appeals.

Desire2Learn has reassured their customers:

With your support and that of the entire educational community, we were able to present a strong case. While we are disappointed that the jury did not agree with our position, we will continue to challenge the patent’s validity and Blackboard’s charges of infringement. We are currently evaluating our next steps.The United States Patent and Trademark office has committed to reviewing the patent. As these activities take place we will provide you updates through our patent blog at www.Desire2Learn.com\Patentinfo.

(Via Desire2Learn)First off, addressing confusion and concerns I’ve heard expressed during conversations with a number of individuals: this decision in no way implies that Sakai infringes on any Blackboard IP. Additionally, both Sakai deployers and any Commercial Affiliate you may contract with for services are explicitly mentioned under Blackboard’s previous commitments not to sue Universities and open-source.So “all” we (the Sakai Community) have directly lost is freedom of choice and a small piece of the spirit of innovation in education. While I don’t live in the right district, drafting Lessig for Congress seems like a better idea all the time. I do wonder however, if Blackboard’s previous “pledge not to sue” open-source products and affiliates might have unexpected implications.Though open-source communities seem unlikely to play the FUD game, does this mean that cautious schools may have only 2 options: Blackboard products or open source? If you’re looking to upgrade an existing LMS or deploy a system for the first time, does this affect your decision making regarding product selection?I should also take the opportunity to point out that this kind of key vulnerability is exactly why the separation of licensing from commercial relationships is such a powerful dynamic. Desire2Learn is by all accounts an excellent company, whose customers are happy. No matter how good the company behind the product, however, choosing D2L as a platform also directly binds you to the fate of a single commercial entity. A company who can fail, be sued, bought (a la WebCT, eCollege), experience a strategy shift (Be Inc.), etc.Participating in a community (or to grab a phrase from Barak Obama “a movement”) like Sakai gives you tremendous long term advantages. You can get competitive bids from multiple vendors due the huge number of commercial affiliates. You can switch vendors if you’re unhappy without having to migrate your service. If Sakai moves in a direction not aligned with local interests you can choose to create your own fork or derivative product. Finally, in the same way that diversified investments allow you to reap the rewards of the stock market while lowering your overall risk — Sakai (and other open source products like Moodle, Atutor, etc.) allow you capitalize on eLearning technology without putting all your eggs in one basket.Update: Michael Korkuska (Sakai Executive Director) blogged about the decision and it’s impact on Sakai and the industry as well.