Blackboard's Dangerous Patent

EFF lawyer Jason Schultz says Learning Management System vendor Blackboard’s broad patent for e-learning gives it too much power over educational institutions. Ars Technica covers the story.

The patent, which covers an “Internet-based education support system and methods,” could potentially threaten increasingly popular open-source course management platforms like Moodle and subject universities to the risk of litigation. … Although Blackboard has publicly pledged not to enforce its patent against open-source software distributors, universities, or non-commercial entities, there are many gray areas that make it difficult to guess what is permissible and what is not. For instance, Schultz points out that the pledge allows Blackboard to sue proprietary software vendors that incorporate open-source software components into their offerings.

This situation parallels the Novell – Microsoft patent non-enforcement agreement I previously discussed. Even in the best of contingent circumstances, when the patent holders pledge good behavior, users live under the coercive effects of this contingency. Colleges and universities are uniquely dedicated to freedom of information, and we need tools that fit with that dedication.

The whole point of the patent system is to bring proprietary inventions and novel methods into the public domain by legitimizing the inventor’s right to license the technology. Software patents allow the inventor to set license terms that are incompatible with free software. Charging fees was once no impediment to patent licensing because the only licensees would be commercial entities. With software, there is no inherent need to recoup costs commercially — whence free software — so charging fees now reduces public access to patented technology. Patent holders are also allowed to restrict the modification of their licensed technology, which is incompatible with free software.

I am not claiming that colleges and universities must use only free software. But we do need the freedom to choose between free and commercial models as they affect our sometimes conflicting educational objectives — e.g. freedom of information vs. access to robust tools. It’s hard enough finding an LMS that does what we need at an affordable cost (whether commercial software, paid support for free software, or employees to roll our own) without the additional anticompetitive force of potential patent litigation.

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