I'm in seat 14E (middle seat because I forgot to check in online yesterday) on my way to Chicago. I'm headed to the NACUBO conference where I'll be speaking about the Kuali community with Kathleen McNeely (AVP at Indiana University and Kuali Financial System's business leader), and Rich Andrews, Controller at UC Irvine (an investing and implementing institution).

Yesterday I updated my iPhone with the 2.0 software which wiped out all my music. Somehow the only audio that made it through the upgrade and restore was Ira Fuchs' speech from the 2008 JASIC summer conference. It's well worth a listen if you haven't already heard it. Since I've got a couple hours to kill on the plane I took some notes from the recording. Hopefully they'll inspire you to listen for yourself. :-)

Ira Fuchs directs a program at the Andrew W. Mellon Foundation that has been instrumental as a catalyst to launch some of the most important open source projects in Education by providing seed funding. Kuali, Sakai, and OSP are the ones I care most about but there is a long list of other important projects like Fluid, Bamboo, and Zotero that are making a real difference in education.

Ira's talk this past summer was focused on the impediments to widespread acceptance of open source software in education. He recognizes that virtually every campus is using Linux and other infrastructure software but some of the education specific applications that have the greatest potential to offer institutions greater strategic agility and more control over their own destiny.

Why doesn't every campus in global higher education use open source software applications? Ira characterizes the impediments in terms of legal, economic, organizational, and psychological factors. He urges the participants at the conference to understand why campuses choose to participate and why many, beyond the community source subculture don't.

Why should we care about adoption? "Communities are living things. Like all living things when they stop growing they start to die." says ira. He notes that not all growth measured in adoption but for now, more adoption is important. The network effect arising from growth driven by adoption leads to : higher quality software (given enough eyeballs, all bugs are shallow); more feedback from higher usage; greater capacity as a community to develop and to support each other; more peer users who help each other and reduce support costs. He also notes that investors (like Mellon) find greater social returns and that adoption attracts more commercial involvement.

The obstacles

Legal obstacles - The good news is that campus leaders don't seem to be overly concerned about insurmountable legal obstacles. However, open source software and projects are held to higher standards. It's an irrational position notes Ira. Campuses routinely take far greater risks than anything yet demonstrated from open source software. He credits software foundations like Sakai and Kuali who hold IP and have strong IP management practices for reducing risk.

Economic, organizational, and perceptual obstacles...

Ira notes that overall IT capacity in higher education will continue to decline as many institutions outsource more IT functions. Given this:

"If there's anyone here that still believes that vendors are unimportant to the long-term success of our projects, then it's time to lose that delusion. Vendors are essential even for big institutions, and essential for small ones."

I really identify with Ira when he says "it's startling when a senior leader at a higher institution believes that his/her institution needs to have substantial IT capacity even to consider participating."

He cites that many of the institutional adoptions of Mellon-funded software over the past couple of years were vendor supported. For projects like Kuali he says the number is "virtually 100%." He doesn't mention rSmart specifically but I believe rSmart has worked with nearly every institution considering or implementing Kuali applications to-date.

He encourages participants to note that statistic:

"That's a statistic that should be on everyone's tongue's when we're talking with institutional leaders. Many of the institutions had the capacity to implement on their own, but chose to work with vendors in order to mitigate the risks of going it alone. That's a strategy we can expect to see much more often as time goes by."

There's a real lack of understanding what the real total cost of ownership is for these open source applications. Ira calls for better empirical data about the real costs and notes that this is critically important if we are to compete with what proprietary vendors insinuate about costs. It's an obstacle, he says, that we need to get past in order to get to the more strategic benefits of open source: Greater strategic agility and greater control of destiny. He notes a statement Brad Wheeler, the CIO at Indiana University made about the need for pragmatic arguments:

"If tomorrow I got a new provost who wanted to know who are all these people taking my paychecks and siting in my offices but reporting to people at Cornel and Michigan and producing software that IU doesn't own. I can't then respond by talking about the virtues of altruism or the glory of open source. I need to have a spreadsheet that shows exactly how it's in our institutional interests."

Many institutional leaders still see open source as anti commercial or unprofessional... they don't trust it. They don't realize that developers are just as professional as counterparts at proprietary software companies, and that these projects are highly organized with strong engineering practices.

He concludes the first part of his talk with a call to action: Produce more and better marketing materials. He notes that most people outside the community source subculture still judge the risks of open source as higher and the benefits as lower than proprietary alternatives. "Some of this misperception," he says "is rooted in simple ignorance, though proprietary vendors, seeking to preserve their market position, nurture of of it too." (Ira was being kind. Many proprietary vendors use their full marketing arsenal to support these misperceptions.)

The only way to overcome these widespread misperceptions, Ira says, is through clear consistent communication. He notes that everyone involved must "communicate the value over and over again, understandably and effectively until a more accurate perception settles in."

He uses Zotero as a positive example how end users can be empowered to do a projects "selling" on campus. He talks about how essential it is for community members to develop screencasts, online demos, podcasts, and good marketing materials to help end users in their efforts to overcome institutional objections.

These self-help selling tools require a significant investment. I know because for the Sakai and Kuali communities rSmart is probably the organization investing most heavily in developing these things. Ira has some great suggestions for leveraging institutions' significant marketing resources so that the responsibility doesn't fall entirely on professional open source companies like rSmart. I think he's right on and I'll be doing my part to encourage that kind of collaboration to build on the development collaboration that's already working so well.

Late last year I bookmarked the Creative Commons Launches CC0 and CC+ Programs press release to look into at some point. I finally got around to it this week and I'm sure I'll take advantage of these great new tools to help balance the spirit of open sharing of IP with the need to grow a profitable business around open source software.  

The new protocols (they are not actually new licenses) are very straightforward and easy to use. This is something CC has always done very well IMHO. So what are they for?

CC0 - CC Zero is a simple protocol to waive all rights to a work. It's like putting a work in the public domain but CC Zero appears to be better because it's more explicit and works better internationally.

CC+ - CC Plus is an addition to the CC licensing architecture that enables the cross-over between the "sharing economy" and the "commercial economy." It makes it very straightforward to offer additional permissions to CC licensed content. The most obvious use case is to profit commercially from CC licensed content by starting with a CC Attribution Non-Commercial license and using the CC Plus protocol to permit commercial use for a fee. It would look something like this:

In the open source software licensing world there's a concept called "dual licensing" that has been used to accomplish a similar objective. The CC+ literature does a great job describing the concept and making it easy to implement. 

We hear a lot about open everything in the media today. Open source software, open content, open innovation, even open source beer. :-)  The big consultants and analysts are catching up with what's happening and making predictions about mainstream implications of the trends toward openness. 

We don't hear a lot about the legal underpinnings that are enabling these trends. In fact, the legal infrastructure is one of a few key enableers along with the ubiquity of web-based collaboration and workflow software that connects people to get things done. Without these two things I don't think the two efforts I'm most involved in (Sakai and Kuali) would be possible.

It's interesting that the CC+ literature talks about bridging the "sharing economy" and the "commercial economy." One of the core values and a key to sustainability of the Sakai and Kuali  communities is commercial involvement. From the beginning these communities have been architected to evolve the software ecosystem in education and enable a new commercial model that fits with the institutions' abilities to lead the development of their key business systems. It's one of the things that sets Sakai and Kuali apart from similar initiatives that have come and gone in education. It'll be interesting to see how/if the CC+ license plays a role in enabling our goals.

Red Hat settled a patent dispute this week that had potentially wide reaching impact to the open source community. Matt Asay points out nicely that Red Hat has demonstrated the open-source way to quash patent lawsuits. 

"Typically when a company settles a patent lawsuit, it focuses on
getting safety for itself," said Rob Tiller, Vice President and
Assistant General Counsel, IP [Red Hat]. "But that was not enough for
us, we wanted broad provisions that covered our customers, who place
trust in us, and the open source community, whose considerable efforts
benefit our business."

This particular suit hits close to home as Sakai and Kuali, two open source projects that mean a lot to me, both use Hibernate, which was the target of this particular attack.

I've verified my interpretation with several people (including real attorneys) and Red Hat's settlement seems to cover Sakai and Kuali. Red Hat's approach to this makes good business sense for them but still we shouldn't take it for granted. It only makes good business sense for them because they truly understand the value of their open source ecosystem and because they've adopted the right set of values to be successful in that ecosystem. Thank you Red Hat from the Sakai and Kuali communities

One troubling thing about all of this is the ongoing threat patents pose to the software world. One article commenting on the Red Hat settlement applaud's Red Hat but points out that "pointed out an opinion that this is an example of patent trolls getting smarter. (By the way it's interesting that the article lumps Blackboard into the patent troll category). The article points out that  "what we're really seeing here is a skillful example of patent gamesmanship by the troll."

Last week Google faithfully notified me that Blackboard had responded to the USPTO rejection of their 'Alcorn' patent. It's maddening to think how much of a drain this whole thing has been to the education community. I didn't want to contribute any more to so I resisted posting anything about it. This morning I see that they are petitioning to have the USPTO drop the whole thing so that they can just get everything worked out in East Texas where they've been successful to-date.

It would be a real shame if the USPTO allowed Blackboard to circumvent the whole process and deferred to the courts. Remember that there are two filings in the USPTO against the patent. The inter-partes filing between Blackboard and Desire2Learn, and the ex-partes filing by the Software Freedom Law Center (SFLC) who filed on behalf of the education community. Blackboard is asking the USPTO to abandon both of these and let the courts settle it.

The latest D2L post :

April, 2008 – Matthew Small, Blackboard's Chief Legal Officer:

"Certainly we believe the reexamination process is a healthy process. It serves to generally strengthen patents, and this case is no different."

http://www.thejournal.com/articles/22358

May, 2008 – Blackboard's filing with the Patent & Trademark Office:

"Patent Owner Blackboard Inc. ("Blackboard") hereby petitions the Office to suspend the inter partes reexamination between Blackboard and Third Party Requester Desire2Learn Inc. . . ."

Petition To Suspend Inter Partes Reexamination Under 35 U.S.C 6314(C)

Wonderful news this morning...

On March 25, the U.S. Patent & Trademark Office issued its Non-Final Action on the re-examination of the Blackboard Patent. We are studying the document, found here, but in short, the PTO has rejected all 44 of Blackboard’s claims. We caution that this is a NON-final action; both Blackboard and Desire2Learn will have an opportunity to comment before a final action will issue, and after that, the decision will be subject to appeals.

I spent this past week at the OSBC conference in San Francisco where intellectual property issues and discussions about Microsoft's patent position relative to their relationship with the open source community were hot topics. This news is a great step forward for the education community and for the world of software patents in general. Thanks to the SFLC and to the education community for all the thoughtful responses and documentation that have helped the USPTO come to this initial determination.

I'm here at Sun's Education Research Community Conference today in San Francisco where the theme of the conference is "The Power of Communities." Throughout the event so far participants have been engaged in dialog about the various aspects of community and how the value of participation and contribution in various communities is realized by various stakeholders. Sun and other corporate participants discussed many ways in which participation in open source communities has been a driver of innovation and a closer more collaborative connection to their customers. Students spoke about the value of learning using open source technologies and the value of participating in open source communities. Educators from a variety of institutions all over the world shared ways that open source software and participation in open communities is giving them new tools and new ways to engage learners.

At the opening session Joe Hartley presented an interesting idea he referred to as the personal community map. See photo below. Joe visually mapped his own involvement in various communities based on his level of commitment to the community and the corresponding value to him and to the community. It's an interesting way to think about it.

Yesterday afternoon during one of the general sessions I peeked at my iPhone to see what was going on and I scanned the headlines in one of my Google alerts. Just below an article about Sun's completion of the MySQL acquisition was another article in the steady stream of dismay at Blackboard's "victory" over Desire2Learn.

The event here in San Francisco really highlights for me the stark contrast between a company like Sun and a company like Blackboard. Sun's is clearly aligned with the values of the education community. Today's dialog has been an open, participatory dialog between the people of Sun, their customers, their partners, and even student 'ambassadors.' During one of the sessions someone asked a question about how Sun would recoup the investment in MySQL and part of the response was the transformative value to Sun of the MySQL community culture. This is a company clearly interested in creating business value in harmony with their various communities... including the education community.

Blackboard, on the other hand, is a company who's actions are simply misaligned with the values of the education community. They are a bad actor who's aggressive and offensive use of a bad software patent is stifling a space that needs competition and the innovation capacity of communities like Sakai and Moodle. The recent verdict awarded Blackboard $3.1M and the right to request an injunction preventing Desire2Learn from selling it's product in the United States, which they've apparently done. The verdict is disappointing but predictable given the patent's current standing with the USPTO and the track record of the East Texas court. I'll be very surprised if the patent holds up to the scrutiny of the pending re-examination. The most disturbing thing about this whole mess to me is the waste. Millions of dollars of the education community's license fees paid to Blackboard and Desire2Learn aren't going into R&D, they aren't being used to innovate and provide better products or services, the money is being used to 'cheat the system' to achieve one goal: Total domination of the eLearning market at all cost. How long will the education community continue to fund their behavior? I empathize with customers of Blackboard's who feel locked in. Fortunately there are now alternatives like Sakai and Moodle that have become attractive alternatives. For many of Blackboard's customers who are facing a migration anyway, especially the WebCT customers, the timing might be just right to get on a better path. A path that leverages the "power of communities" to further the impact of technology in scholarly endeavors and improve access to education.

Other key resources to learn more about the verdict, the patent, and the pending re-examinations:
Blackboard Wins Patent-Infringement Case Against Rival Courseware Provider, The Chronicle

Our 'official response' from the Sakai Foundation on Michael Korcuska's blog

Michael Feldstein's blog

Steven Down's summary of others' comments

Yahoo Pipe for Bb patent news

Local software firm loses patent suit, The Record

This past week the Blackboard patent trial began. I've been following the blogs and news coverage hoping to hear some positive signs that the ridiculousness of the whole thing had been exposed. No such luck from any of the accounts I've read as of yet. I am hopeful for next week though. Any reasonable person is sure to see the absurdity of Blackboard's claim right? I sure hope there's a few reasonable people in Lufkin, TX where Blackboard filed suit.

For anyone reading this that's not familiar with the case there are plenty of summaries out there. Alfred Essa's blog from yesterday is my new favorite. I love his comparison of Blackboard's approach to that of the conquistadors:

Old-style conquistadors used to lay claim to land on behalf of the monarch by looking yonder and chanting some such phrase: "We claim this land in the name of God and our Savior by killing everyone who already lives here. By this land we mean all the land as far as the eye can behold and way beyond also for good measure." These days modern-day conquistadors lay claim to "intellectual property" by going to the Patent Office and chanting the modern version of the mantra: "We claim this intellectual property in the name of Innovation and our Shareholders by killing anyone who dares use that Idea for the next twenty years." In order to qualify as a patent the idea, at least in theory, must be "non obvious" to a skilled practitioner and there must be no "prior art" (i.e. there is no record of someone else beating you to that idea).

With all the existing prior art and the sheer obviousness of Blackboard's claim, it's baffling how it could have been approved in the first place. It's incomprehensible that it could have made it this far and wasted so much of the education community's time and money fighting.

Alfred also does a nice job of articulating the essence of Blackboard's claim (the part that hasn't already been thrown out) in straightforward terms that make the obviousness and sheer ridiculousness of the claim clear. I worry that, as he points out, the claims are dressed up in so much unrecognizable legalese that they might actually succeed in confusing even reasonable people. It is good to know that there are two other endeavors to destroy Blackboard's patent. The USPTO has approved two independent requests to re-examine the patent. Odds are that between these two re-exams the patent will be invalidated. The only question is how much damage Blackboard will do before it's gone.

I do wonder why Blackboard's customers (educators with high ethical and moral standards) continue supporting a company who's actions are so "ethically challenged." I empathise with their clients who are locked-in and hope that projects like Sakai and Moodle provide an escape route. This absurd patent is costing the education community millions of dollars and has only one objective: To further conquer and lock colleges, universities, and primary/secondary schools into Blackboard's monopoly. Leaders in education should tell them clearly, in the only language Bb understand$, that this behavior isn't acceptable. I hope the court sends the same message by finding in favor of D2L.

I've just returned from my second Open Source Think Tank hosted by Olliance and DLA Piper. The event is a very interactive discussion of a variety of open source topics. The participants are the leaders of commercial open source companies and open source projects, analysts, VC's, CIOs that have OSS in their enterprise, etc. It's got to be the most significant gathering of open source business experience and talent.

At the end of last year's Open Source Think Tank there was a recognition that the line between open source and proprietary companies would blur. In time software companies would have both proprietary and open source software elements and business models that matched. Even a year ago we speculated that there are probably few software companies that didn't use open source software at all.

This year there seems to be a resounding agreement that all of our "commercial open source software companies" are simply software companies. During one of the panel sessions a group of CIOs were asked "What would you like to tell the commercial open source companies in the room?" One CIO's answer was particularly representative:

"You're not OS vendors. You're software vendors that happen to be ahead of the pack. You're using the most effective development and distribution model. You have a competitive advantage in the communities and approach. I expect you to become the next generation of software vendors."

Much of the discussion here was about what we (those of us formerly known as commercial open source software companies) need to do to become more mainstream. Or, as one of the CIOs put it, move out of 'junior varsity status.' Some key discussion points and challenges we've identified and discussed are:

Ease of consumption. The consumers of our software and services need us to fit better into the mainstream expectations of software companies. We need to improve the total experience interacting with us a companies including downloading, installing, deploying, using, managing, supporting, and procuring.

Integration with other software in the ecosystem. There's a need for better integration in the current software ecosystem. Such as "certified" integration, testing, and support both vertically in the software stack (OS, DB, App server, etc.), and horizontally with other business applications that combine to solve real problems.

Licensing and IP. The complexity of open source intellectual property was a key concern discussed throughout the event. It's clear that there's at least a perceived risk factor associated with open source software IP that we need to address. One person made a comment that OS licenses are an issue because people actually read them, as opposed to proprietary licenses. While there are a lot of OS licenses, in reality proprietary licenses are almost all unique and far greater in number. The OS licensing and IP problem breaks down into partially an education problem, and partially a compatibility problem between reciprocal (like GPL) and non-reciprocal licenses (like BSD and Apache). In any case there's a perceived problem if not a real one and it is a barrier to adoption.

Business models and commercial engines. Many people speak of open source businesses, and open source business models. Most (if not all) of the people at this event agree that open source isn't a business model. That's just not the right way to think about it. Software companies do have to think about the impact open source software will have on our business models. Companies building businesses primarily from open source software have been inventing and re-inventing business models that deal with the unique intellectual property, development, and distribution models for ten years. There are some best practices today but one of the key challenges remains to create a commercial engine that appropriately adds value and benefits both the development/user community as well as the customer community.

I'll probably write more later as other thoughts about the conversations at the event begin to gel. Hats off to Andrew and Mark for bringing us all together. It continues to be a thought provoking event and a great opportunity to meet others facing similar challenges.

Very cool new initiative called FOSSBazaar launched by HP to foster best practices in open source governance. I just registered for FOSSBazaar after reading HP Launches Open Source Governance Initiative. I haven't fully digested the initiative yet but at first glance a couple of things impress me: 1) There's a lot of interesting and unique resources that appear to be well organized; 2) People I know and respect are involved. 

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.