I just ran across an interesting post of David Shields' called New Life Forms in the Open-Source Ecosystem: Redmonk, Mellon Foundation, And Some Newbies. I like the way David talks about "new life-forms" appearing in an open source ecosystem as a way to track (and measure) the progress of open source. He goes on to talk about a few of the project's I'm very involved in, and about a Licensing Summit we held in Indianapolis which is where I met David. A lot has happened since that Summit David. I blogged recently with a bit of an explanation of where the Sakai and Kuali communities are today WRT licensing.

Interesting analysis compliments of Michael Feldstein and Jim Farmer over at e-Literate.

I was at rSmart's EDUCAUSE reception last week when Brad Wheeler grabbed my attention. He told me the new news about blackboard's latest deceptions which, of course, Michael Feldstein reliably picked up. As I thought about them planting a spy and spinning the public perception one way, corporate activities another... I thought how glad I am to be part of something entirely different.

The news about Bb's recent loss in court has spawned a new conversation about the status of the threat. It looks like the net of the recent news is this:

There are two groups of claims in the patent: Claims 1-35 ("system" claims based on claim 1); and Claims 36-44 ("method") claims based on claim 36). The recent decision takes out the first group, but leaves the second group. I understand that the second group may be easier to attack because claim 36 is less convoluted than claim 1. Since it's less convoluted, it may also be easier to demonstrate that one does not actually infringe those claims.

Remember that there are at least three things going on here:

1. The SFLC patent re-exam (Ex-parte): Filed Nov 2006, Granted Jan 2007, current status: In progress.
2. The D2L paten re-exam (Inter-partes): Filed Dec 2006, Granted Feb 2007, current status: In progress.
3. The Bb suit against D2L: In a patent infringement suit like Bb vs. D2L, there's an important phase that preceeds the trial called the "Markman Hearing." This is the source of the news we've been hearing this year. In this phase, the judge determines what the patent actually means--the scope of the patent. The decision that invalidated claims 1-35 came from the Markman Hearing, and it means that those claims won't be. While this case is independent of the re-exam's, the public's condemnation of the patent, the overwhelming attention, and the two re-exam's probably had some influence on the judge.

#1 and #2 above aim to destroy the patent. They both use a wealth of prior art to argue that the patent claims are non-novel and obvious (a valid patent must be novel and non-obvious of course). #3 is specifically about the suit between Blackboard and D2L.

And don't forget Blackboard's patent pledge for OSS. Though it was far less than what the education community expected of Blackboard, it does provide some useful assurances for the open source communities. Though I'm sure it's Sakai's great software that keeps adoption growing strong.

I read Michael's post about socialism and Sakai commercial affiliates last week but between traveling, returning to Phoenix, and then hitting the road again I didn't have time to say thanks. Thanks Michael, I think you've really captured the essence of what's important about the commercial role in the open source ecosystem.
I found the comments on the post interesting as well. John and Michael both pointed to some interesting related reading:

Back in August we heard that one of two key claims in Blackboard's patent 138 had been invalidated. Today I saw that e-Literate picked up a blog post from D2L that says the original decision was re-affirmed...

The bottom line: Two judges have now ruled Blackboard's Patent Claims 1-35 are invalid because of indefiniteness of claim 1. Blackboard cannot claim infringement at trial of those claims.

Sounds like good news to me... again.

Michael Feldstein from e-Literate got in touch with me late last week to inquire about Sakai's move to the Educational Community License 2.0. He expressed some concern about the new license which he discovered reading John Lewis' blog complaining about the move. I'm glad Michael contacted me because it gives me an opportunity to talk about the great things Sakai and Kuali do to protect contributors and adopters.

First, let me say that I have no formal legal training but I've learned a lot spearheading a set of intellectual property management practices for the OSP, Sakai, and Kuali communities over the last 5 years (wow, I can't believe it's been that long). Our community practices consist of 3 parts:

In The Cathedral and the Bazaar Eric Raymond said "Given enough eyeballs, all bugs are shallow." The phrase, he calls Linus' Law after Linus Torvolds, is probably one of the most memorable and most repeated phrases (in one form or another) from the essay.

This morning I read a post on The Open Road about new data that supports the anecdote. Matt quotes from the CIO Magazine post:

According to a survey commmissioned by BMC and conducted by Forrester analyst Carey Schwaber, the average time to resolve an application problem is 6.9 days for enterprise developers and 6.7 days for software vendors. Ten percent of those problems take 10 days to solve, says the report. Developers spend just over an hour documenting the problem; and, if given that hour back, they'd use it to create enhancements to the application they are working on....

...Evans Data Corporation (EDC) just finished its twice-yearly report, resulting from a survey of several hundred open-source and Linux developers (with some managers, but primarily folks-who-code). The EDC numbers are somewhat different. The average time between discovery and solution of a serious bug, for 36 percent of open-source developers is under 8 hours. Hours. Not days. Not a week.

Of course, as Matt notes, it's not that all open source software is better, but that open source lays the foundation for "better." My own experience certainly backs this up.

The Joint Information Systems Committee (JISC) released two nicely produced videos on Tuesday that share results from recent research on the use of Virtual Research Environments (VRE). Both videos talk about Sakai as a software platform well suited to handle the diverse needs of academic and scientific research collaboration. It's suitability for a variety of scholarly collaboration needs from eLearning and research collaboration to portfolios and other ad-hoc group collaboration is one of Sakai's great design strengths.

VREs in practice: Research needs

VREs in practice: Technical solutions

JISC's VRE Programme home

When you can't beat 'em, spread FUD about 'em. There must have been a marketing seminar for software companies threatened by open source where they all learned the same FUD tactics. I just stumbled on a post by Carl Grant that deals with 9 common FUD statements/questions regarding open source. His post is aimed at addressing questions left unanswered during a panel session at the American Library Association annual conference. Panel participants were CTO's of proprietary integrated library systems (ILS).

Carl's post does a nice job of addressing some of the common questions about open source. It's unfortunate that they are still common questions though. There are still many who profit from the old, closed software regime. They have yet to figure out how to be part of the movement and so they spread these misconceptions that introduce fear, uncertainty, and doubt that stall change just a little bit longer. Some wise words from Bob Dylan seem appropriate here...

Your old road is Rapidly agin'.
Please get out of the new one
If you can't lend your hand
For the times they are a-changin'.

For someone who spends a lot of time lending a hand, I'm always interested in helping others understand the open source movement. Reading Carl's post this morning got me thinking about why open source is so often viewed with uncertainty.

Perhaps it's because so many of us who are involved in spreading the message are so enthusiastic about what's happening we talk about it as if it's a revolution. I know that I often refer to the open source or community source movement. In some ways it is a movement, and at times it seems worth recognizing some of the revolutionary ways organizations are working together to produce great software. In many ways, open source is simply an evolution of the way we build great software. For most organizations it's aquired the same way any software is aquired, through a software company. There are some differences worth noting, but they are evolutionary differences more than revolutionary.

Take Sakai, for example. Sakai is a community I'm a part of that develops eLearning software. My company, The rSmart Group, sells the rSmart Sakai CLE commercially. For our clients, acquiring the CLE is like acquiring Blackboard or any other commercial eLearning software. There are some qualitative differences worth noting, but it's fundamentally the same process: They pay Blackboard for their software, they pay us for our CLE; Blackboard installs or hosts their software, we install or host our CLE; Blackboard offers training, integration services, etc., we offer training, integration services, etc.; When there's a problem customers call Blackboard for support, our clients call us for support...

So what's different? Our software costs a lot less. Though the total investment in the Sakai CLE may ultimately exceed the investment Blackboard makes in it's software, that investment is shared among a great number of organizations. Our clients probably pay less than half of what they'd be paying if they used Blackboard. Our software is better. The Sakai CLE is built by and for Education. We employ rigorous engineering practices and source code management practices, and we're producing great software at lightning speed with more than 100 education-focused organizations and institutions around the world. Our service is better. Because our software is open, accessible to anyone in the world. We have to compete on the quality of our service. Whether it's our training, installation, integration, hosting, or support, if our clients aren't happy with our service they have options. Our clients are in control of their own destiny. This just isn't true with Blackboard. Blackboard's clients have the options Blackboard is willing to give. Our software can't be taken away. Our clients are guaranteed access to the CLE forever. It can't be taken away. This is also not true of the proprietary competition. I've been involved in eLearning for about 10 years and have seen many aquisitions. The aquiring company almost always takes one of the options away. Blackboard will certainly have to focus their investment on one platform going forward and that will take software and choices away from thousands of colleges and universities.

So maybe it's time to talk more about evolution than revolution. Though I do think we're doing some revolutionary work as a community.