The NOSE

Educause Podcast

My interview podcast with Educause's Matt Pasiewicz is now available. You can hear me pontificate on software patents, the spellings report, Kurzweill's law of accelerating returns, and the information commons. Let me know what you think.

I am looking forward to listening to the entire series of educause podcasts from this year's conference as they become available.

Got Spare Computer Cycles? Give to the World Community Grid

Most of our computers sit in idle during the day. Whether it's in a laboratory or our desktops, the computer stays on but unused. What if there were a way to harness the spare cycles for projects that benefit humanity? The World Community Grid does just that. Some of the supported projects include examining tissue microarrays for cancer research, identifying candidate drugs to block HIV protease as part of AIDS research, and obtaining higher resolution structures of human proteins and pathogens.

During my campus visit to Rochester Community and Technical College CIO Tim Gilsrud educated me about the project and RCTC's participation in it. Hundreds of computers on the RCTC network give their spare cycles to the grid. RCTC is not only a participant but number #2 in the world by having contributed over 334 years of run-time cycles. The global statistics page is fascinating: 229,232 members, 433,467 devices on the grid, europe has the most members, etc.

Tim has set a good example for other CIOs in the Minnesota State College and University System. Others will surely follow.

The New Gold Rush: IBM Sues Amazon over ecommerce software patents

IBM has done a good job bamboozling the software community by selectively releasing software patents into the public domain or making them available to open source projects. A trinket here. A trinket there. Big Blue also got some good press of late by announcing that it would begin to publish its patent filings on the Web for public review. I have been sceptical all along and my suspicions were confirmed.

IBM just filed a lawsuit against Amazon for software patent infringement. And yes, the lawsuit was filed in East Texas. Software patents serve one purpose and one purpose alone. They allow powerful companies and incumbents to levy an arbitrary innovation tax, stifling entrants and ultimately driving up costs for all consumers. IBM holds more US software patents and files for more each year than any other company. It does so because it can afford to do so. 

There is a new gold rush and it's for the set of basic ideas underlying the software we all use and depend upon. Big Blue, Blackboard, and other Big Companies are carving up the software idea landscape as quickly as they can.

Can Open Source Rest Easy?: Another Legal Scholar Weighs In

I have already mentioned John Mayer's excellent podcast interview with Professor Vince Chiapetta. Mayer's discussion with Professor Mary LaFrance (Willam S. Boyd Professor of Law, UNLV) also advances our understanding of the Blackboard patent case. Professor LaFrance, a high honors graduate of Duke University School of Law, teaches intellectual property law and is co-author of an intellectual property casebook published by West.

Let me highlight a couple of issues that jumped out at me during the LaFrance interview:

Can Blackboard sue a user for patent infringement? The answer is yes. According to Professor LaFrance, part of Blackboard's strategy "probably is to discourage universities from developing their own system...because the threat of litigation could cause some universities to terminate those efforts." Mayer then raised an interesting counter point for consideration. Blackboard has publically stated that it does not intend to come after universities or "faculty". Are these public statements binding in any way?  Or are they empty gestures because Blackboard can change its mind at anytime? According to Professor LaFrance, such public representations could be grounds for a defense of estoppel. If in the future Blackboard sues an open source project or a university for patent infringement, then estoppel is available, at least in theory, as a defense.

It goes without saying that this is all speculation and it's not at all clear how strong a defense estoppel would provide. However, if Professor LaFrance is even the slightest bit correct, then there is no immediate pressure on open source. Sakai, Moodle, and Universities potentially have a defense which is not available to Desire2Learn.

My conclusion? Our aim should be to maintain a common front by pressuring Blackboard into dropping its lawsuit against Desire2Learn. The legal and political route will take a long time, will be expensive all around, and at the end of the day everyone will lose. Following the Educause precedent, it would be helpful if organizations such as Sakai made a strong public statement urging Blackboard to drop its lawsuit.

Blackboard's Patent Scope: A Legal Scholar Weighs In

John Mayer, Executive Director of CALI (Computer-Assisted Legal Instruction) and blogger at CALIoplis, has done a great service to the community by posting a pithy podcast interview with Professor Vince Chiapetta, an expert on patent law at Willamette University College of Law. Chiapetta is graduate of MIT and University of Michigan Law School (magna cum laude).

I will comment on some of the key themes in future postings, but one item we can lay to rest once and for all is Blackboard's continuing deceptive claim that its patent scope is "limited".

Here is patent scholar and litigator who has read the patent, knows the distinction between independent and dependent claims, and concludes that "the system and method claims are very broadly written. I was pretty amazed at first blush at what ended up in there." Admittedly, Professor Chiapetta's view is only one view but his expert reading of the patent is consistent with what a number of us have been saying all along, namely that the Blackboard patent strikes at the core of essentially all e-learning systems.

The next time Matthew Small, Blackboard's general counsel, says that the patent is "limited", don't believe him and don't be fooled. All he means is that the patent is finite and doesn't cover everything. In that sense every patent is limited because every patent is finite in scope.