Increasingly students are demanding more flexibility in the delivery of courses. As more schools are adopting distributed learning approaches, software and technology have been central. One tool for course delivery is a learning content management system (LCMS) or virtual learning environment (VLE). The current state of the LCMS or VLE field underscores the importance of freely sourced options. Recent commercial mergers, acquisitions, and the rise of educational patents (EduPatents) have created an unstable environment where open source and free software options may in fact be less risky from both financial and legal standpoints, not to mention from the standpoint of ensuring intellectual freedom as advocated by Stallman (personal communication, September 10, 2006; Williams, 2002). Jim Farmer (2006), consultant to the US Department of Education and author of an upcoming report on open source communities for Oxford University, warned that “Education patents and the new licensing environment may further commercialize teaching and learning.”
Blackboard (http://www.blackboard.com) is a case in point. Over the last four or five years, Blackboard has consolidated its market share to become one of the largest proprietary commercial entities in the field. In January 2002, The Chronicle reported on the Blackboard-Prometheus merger, saying it was “the fifth acquisition for Blackboard since its founding in 1997, and three of those were companies originating in academe” (Olsen & Arnone, 2002). Four years later in January 2006, Blackboard bought-out competitor WebCT (www.webct .com) for an estimated $154,000,000 US (Helfer, 2005), making it one of the major forces in LCMS/VLE provision. (Keep in mind that WebCT also originated in academe, beginning life at the University of British Columbia, Canada.) Helfer (2005) wrote,
In 2004, many customers of Blackboard and WebCT received rather sizable cost increases to renew their software licenses. Questioners of the merger are concerned that decreased competition may mean increased costs to customers. The merger doesn’t necessarily mean the new Blackboard will squash all competition, however.
[Blackboard’s proprietary commercial competitors were listed as ANGEL Learning (www.angellearning .com), Desire2Learn Inc. (http://www.desire2learn.com) and IntraLearn Software Corporation (www.intra learn.com/) (Helfer, 2005).]
Helfer’s (2005) optimism may have been misplaced. In January 2006, around the time the WebCT buy-out was finalized, Blackboard filed for a US patent for “Internet-Based Education Support System and Methods” which it received in July 2006 (Mullins, 2006). Blackboard promptly sued Desire2Learn and followed with a flurry of international patent filings in Australia, New Zealand, Singapore, the European Union, China, Japan, Canada, India, Israel, Mexico, South Korea, Hong Kong, and Brazil (Mullins, 2006). This has caused a furor in educational technology communities, and is something about which we should all be concerned. A countermovement has been launched by some. As Feldstein (2006) writes, “patents can be invalidated if one can demonstrate that the claimed invention was in public use or described in a published document prior to the date of the patent filing.” Various groups with vested interests—commercial, non-commercial, proprietary and non-proprietary—are seeking to establish prior art in bids to undermine Blackboard’s patent claims. One such example is the Wikipedia site Michael Feldstein established for virtual learning environments (VLEs) on July 30, 2006 (Wikipedia, 2007). Feldstein (August 1, 2006) reported that while on July 30, 2006, the Wikipedia entry was “[only] a one-sentence stub” by August 1, 2006, was “a pretty good document that was generated by a variety of people”. As of May 2, 2007, the same Wikipedia entry was extensive spanning from the pre- 1940s to 2006 with terminology, references and further reading sections (Wikipedia, 2007).
Regarding Blackboard, Farmer (2006) wrote:
The Blackboard patent is not alone, but representative of many that have been issued – and many more that are pending in the U.S. that could apply to any learning system. It is unlikely that all claims of all patents will be found invalid before someone wins an injunction or judgment, and cease and desist letters and license invoices follow. We should be prepared for a new environment of restrictions, licensing, and confrontation of our suppliers … Now any choice of software, any method of instruction, and any choice of content will have to be viewed from a new perspective of risk assessment. This moves the decision from teaching faculty to business officers and attorneys who are least prepared to judge the effect on education and research.
As the educational technology field struggles with Blackboard’s attempts to secure a proprietary commercial future, the organization’s actions repeat patterns earlier established by AT&T and Microsoft. The actions of these two large proprietary players were key drivers in the rise of both the Free Software and Open Source Movements. If educational software evolution continues to parallel the AT&T and Microsoft model, freely sourced software should play a central role in beating back monopolistic bids—as should GNU’s GPL. Based on such a history, freely sourced learning platforms such as ATutor (http://www.atutor.ca), Sakai Project (www .sakaiproject.org), and Moodle (http://moodle.org) warrant watching.
