A Personal View on the Blackboard-D2L Patent Case Resolution

Before getting into my subject, here is a bit of background about me. I was the Assistant CIO for Learning Technologies for the Campus at Illinois, which made me the primary learning technology person here. I held that position through September 2006. I had substantial dealings with the WebCT Company in that capacity and knew all the WebCT senior management as well as many of the staff. Moreover, my peers at Purdue and Minnesota were similarly situated with respect to the company and WebCT interacted with me and my peers on several occasions as one block, because our three campuses had similar issues. The merger with Blackboard was announced at the Educause national conference in fall 2005 and subsequent to that I participated in (what I hoped would be) substantive meetings with the new management at the last WebCT users conference in summer 2006. I started my job in the College of Business in October 2006. Thereafter, I no longer had interactions with Blackboard, as I no longer represented the Campus in this capacity.

Being the most visible person on Campus associated with the Learning Management System (here we call it Illinois Compass) certainly has a number of headaches associated with it, particularly in periods when there are stability and performance problems – something we did experience (and below, I will discuss a new approach because I believe campuses my size or larger and that have very large introductory courses will inherently have such problems with the LMS independent of the particular platform and product). But those headaches were only a minor part of why I chose to change jobs. (The main reason was to get closer to faculty as they implemented technology innovations in their teaching.) The changes at Blackboard were entirely orthogonal to this choice.

But because in the past I’ve written a fair amount in this blog about the LMS, because the College of Business currently relies on the LMS as its main online teaching environment and courses portal, and because of my feelings for peers on campus and throughout the country, I still have strong opinions about the LMS and what is going on in this industry, so I want to frame the issues as I see them. I represent nobody in this other than myself, but I suspect that colleagues in Higher Ed will concur with at least some parts of what I say.

Collegiality of Blackboard Senior Management

At Illinois we went through a rather intensive scrutiny in 2002 – 2003 to determine our enterprise LMS system and since we specified Oracle/Unix back end we ended up with two bidders, Blackboard and WebCT. Previously we had supported both products in non-enterprise versions. The choice between the two was difficult and not clear cut and we are a very complex Campus with many competing needs to fill so the issue was more a matter of which was a better fit than which was the better product. But with that, company tone mattered and on that dimension we rated WebCT higher than Blackboard. I know many other WebCT customers felt the same way.

I believe since that time the perception of Blackboard (by me and my counterparts and perhaps also by campus CIOs) has, if anything, gotten worse. Again, I’m referring to the Michael Chasen level and his various VPs. I’m not referring to lower level stuff, some who are undoubtedly working as hard as they can to satisfy customers.

Personally, I value communication and prior notice. I value that a lot. If there is a problem, tell me. I won’t like you for it, but I will dislike you a lot less. At that WebCT annual conference in summer 2006, there were opportunities to inform us about the Patent case before that information was generally released. We were not so informed. It also turned out they had plans to close the WebCT office in Vancouver. That might have been a sound business decision to ensure coordination of staff who remained with the company. I can’t judge it on that. But it clearly was disruptive as all our technical support was in the Vancouver office and many of them quit once it was announced that office was to be closed. That turnover of this sort would occur and be disruptive could have been readily anticipated. But Blackboard didn’t inform us of their plans to close the Vancouver office at the conference.

More broadly, the Patent case following the merger and the earlier acquisition and then mothballing of Prometheus makes it pretty clear that Blackboard is pursuing a monopoly strategy and that is more important to them than collegiality with their customers. Having once felt that we mattered to the vendor, it is distasteful to feel otherwise.

The Parallel with the Scholarly Journals Problem

With scholarly publishing, the scholarship is done within Higher Ed by faculty employed by their respective institutions. Faculty then assign copyright to their works to the commercial publishers (out of fear that otherwise publication will be blocked, because they don’t know any better, and simply out of habit) and then the commercial publishers charge the academic libraries an arm and a leg to subscribe to these journals, which they must do because their faculty insist on it. The consequence is some dissemination of scholarship, but not full openness, along with a financial transfer from the subscribing universities to the shareholders of the big academic publishers. On face blush the transfer makes no sense as the value add of the publishers seems quite small.

The LMS situation is similar. Development of such a system requires the active participation of users, who are really partners in the development process. If the market is somewhat competitive, it may be efficient for the commercial partner to hold ownership of the innovations, because they can better internalize the issue of making changes that are compatible across the product and managing versions of the product offering. However, once the market becomes monopolistic, this ownership becomes a source of holdup. People in my former position (or their bosses, the CIO) may no longer encourage their staffs to act as a partner with Blackboard in developing future versions. Without the collegiality, this is a natural reaction. And without the market pressure from competing vendors, there is less of a need to innovate to capture new markets. This bodes poorly for the future of the LMS.

We in Higher Ed need to understand that while we may be good at diagnosis, we’re not that great at providing remedy. In the case of scholarly publishing, institutional repositories were supposed to be at least a partial antidote to the problem. Perhaps the recent changes at Harvard will change what I have to say next, but so far IRs have been a miserable failure in addressing the scholarly publishing problem. There may alternative pressures – namely that distinguished faculty can directly market their works without any other intermediary, including peer review, and counter attempts to woo these folks back to the traditional publishing fold may have some substantial effect. But that is outside the work on IRs, which themselves have seen very limited contribution of scholarly work.

Likewise, Sakai was supposed to be the answer in the world of LMS. Perhaps it still might be, but if I were to bet I’d take the alternative proposition. At many campuses such as mine that were Sakai partners, Moodle has a greater presence, but there still is much more reliance on the commercial LMS. And I know with that, there have been issues of database corruption as a source of instability (I’m not a techie so there may be a more technical explanation) at such campuses regardless of which commercial LMS it is, which I attribute to size and the complexity with which these products are used. This may not be a problem at more moderately sized campuses or at high enrollment campuses which nonetheless have modest section sizes. But it sure is a problem at peer institutions.

The LMS has not transformed the way we teach and learn

There are some courses that use the LMS in an intensive fashion. The high enrollment classes in this category are indirectly responsible for the stability problems I mentioned above. But most of the use is still in the file drawer/Xerox machine category. In these classes the LMS is used to distribute syllabus and PowerPoints of lecture and that’s it. Further, the LMS is no longer a novel technology. It’s viewed more as technological infrastructure and we are closer to steady state in use than to the early phase of adoption. ROI on such infrastructure depends on how it is used. While those large classes that use the LMS intensively may very well be reliant on the LMS, the rest of the courses are not. We likely will get very long in the tooth before those courses intensify their use of the LMS and in the meantime ROI will be modest.

Alternatives to the LMS for Collaboration, File Sharing, and Calendaring Scheduling

Students expectations for how technology should work are set by their experiences with Facebook, Gmail, AIM, YouTube, etc. The LMS falls short in terms of slickness and how up-to-date it is when compared with these commercial offerings. Further, much of the functionality in the LMS is not specific to instruction and since students live in a best of breed world regarding their personal computing, they’re apt to ask why we don’t do that with regard to instruction.

Ed Tech administrators are asking the same thing, because of their personal computing experiences, because they are being pushed by early adopter faculty who argue the LMS is too teacher centric, and increasingly for fear of being a hostage to Blackboard.

Since it behooves us in Higher Ed to have multiple sources for our IT services, irrespective of the nature of the service, to give us a reasonable walk away position and not be too prone to being held up by a vendor, a sensible near term solution is to start to pull out of the LMS those functions that could be reasonably satisfied by other sources, especially other sources with a much larger market than Higher Ed. This would move us away from the tightly integrated approach we’ve advocated for since the late 90s. But in the current climate it seems an imperative.

There is the further issue that we need to support other than classroom interactions. We need to support research groups with their collaborations, committees of all shapes and sizes, and inter campus work. We need to be in these other environments for these reasons alone. Given that, it makes further sense to use these environments for some functionality the LMS had done previously.

Should software be patentable and the appropriability problem

Having some understanding of the underlying incentives issue with intellectual property rights and having some significant role with the fledgling LMS from my Campus, CyberProf and Mallard, I’ll be damned if I can figure out what role Patents might play in the development of such environments, particularly when the field was so immature as it was in the mid to late ‘90s.

The uncollegiality I mentioned previously is amplified by this use of the Law. We customers want the better software to prevail. Copyright law is ok for software; we can understand lifting of chunks of code as a breach. But when the mousetrap is better a blockage via Patent violation seems out of bounds. And the reality with software is that starting later is an advantage – backward compatibility is not (as much of) an issue and development can take best advantage current art. We want to see the new overturn the old and if not let the lock-in choice be left to us as users. The vendor making the choice for us is offensive.

There is now the further issue of nobody developing open source LMS understanding what is in breach of the Blackboard patent. Blackboard’s assurances that it won’t go after Open Source are not comforting. If Moodle, for example, were to start really increasing its market share wouldn’t Blackboard have incentive to change its mind, especially if it thought it could win another infringement case?

The dampening effect on innovation may be more troublesome than the immediate damage to D2L. D2L customers will be nervous, for sure. And they will have to reconsider the planning for the future. But they will continue to operate in their current environments. It’s the future that’s at stake, not the present.

Why I’m writing this piece

I’m angry and all of us who are angry want to vent. There is a need to let go of steam. But that is not the purpose of the piece. I’ve got other ways to vent and can do that privately. Here I want to use the anger to force a strategic conversation that we should have been having openly a year or two ago. Do we need to turn 180 degrees in advocating for integrated solutions in teaching and learning in favor of a best of breed approach? That is the key question to discuss and in my view the answer is yes, for the reasons I’ve articulated above. I don’t know if this patent case will drive others to reach the same solution, but I’m willing to be it will encourage others to participate in the conversation.

I didn’t say this above but in addition to being poor at delivering credible open source alternatives, we’re equally poor, perhaps even worse, at forming buyer collectives that can serve as a counterforce to an increasingly monopolistic LMS market. It is true that there are many state consortia which purchase one LMS on behalf of their membership. But as far as I know there are no interstate consortia of this sort. And in my way of thinking that is unlikely to happen in the future. So the best of breed approach represents an imperfect but better answer than the available alternatives. That’s the discussion we need to have. Perhaps now, many of us are ready to engage in it.