Fortnightly Mailing

What's the state of ICT access around the world?

Source: International Telecommunications Union

Thanks to Dave Pickersgill for this link to the World Summit on the Information Sociey's Digital Divide at a glance web site, which seems to have last been updated at the end of 2005, and which contains a wealth of data and charts, mostly much less blurred than the one above.

Two contrasting views about software patents. A debate between Eben Moglen and Blackboard's Matt Small

"a very effective trial lawyer summing up his case before a jury, and a corporate attorney reaching for a compromise"

Updated 15/12/2006, and a broken link fixed 14/10/2013

A couple of years ago, in Fortnightly Mailing Number 44, I mentioned Eben Moglen's work for the Free Software Foundation:

"Not many academic lawyers start off as programmer/analysts with IBM, and then switch to law. Eben Moglen is now Professor of Law and Legal History at Columbia Law School, and acts pro bono for the Free Software Foundation.  For interesting samples of Moglen's views, see The dotCommunist Manifesto and Freeing the Mind: Free Software and the Death of Proprietary Culture."

Moglen has come to the fore as the lawyer behind the Free Software Foundation's ex parte application for a re-examination by the US Patent Office of the Blackboard Patent.

On 6/12/2006 Moglen gave the keynote at the Sakai Conference in Atlanta, and later on in the day he and Matt Small, Blackboard Inc.'s General Counsel, took part in a debate about the Blackboard Patent. Jim Farmer [20 kB PDF], who wrote The new "post-patent" environment for e-learning: a perspective as a Fortnightly Mailing Guest Contribution in September of this year, has done a brilliant job of summarising the debate between Moglen and Small [190 kB PDF]. (Notes from Moglen's keynote will be available in due course, and I will post a link to them from this piece.) The debate, which is relevant to the situation in Europe rather than just the US, provides plenty of insights into "the software patents question". Sakai has done us a service by organising it; and Blackboard a service by taking part in it (whatever you think about the logic or justification for the Blackboard patent, you have to admire Small for going into the lion's den and patiently holding his and Blackboard's ground, albeit with a much more reasonable tone than is used by the lawyers that Blackboard instructs [63 kB PDF]): and it emphasises that the dispute, in which Moglen is vigorously confident of long term victory, is really between two world views, rather than between organisations, or about a particular piece of software.

Jim's write-up should be taken alongside the podcasts of Eben Moglen's keynote [78 minutes, 37 MB MP3 - gripping, forceful, wide-ranging, devoid of the slightest shred of self-doubt, not to mention entertaining] and the debate between Moglen and Matt Small [69 minutes, 32 MB MP3].  10/12/2006.  And you might also want to take account of Michael Feldstein's carefully thought out and heartfelt "from ringside" views about the debate, which [15/12/2006], over the last few days has accrued some exceptionally interesting comments, including a long explanation by Eben Moglen about his strategy, and his scathing views about Desire2Learn's. They shed a lot of light on the final part of this comment from Jim's introduction to the transcript:

"Typically I try to summarize the key points from a presentation in notes like these. However, the important points are all subtle points of interpretation. I suggest you listen first to the audio recording of Moglen’s keynote for context and then the entire audio recording several times in conjunction with these notes to make your own interpretation. I have transcribed, with errors anyone unfamiliar with transcription and with only primitive software installed would make, the parts that I believe should be carefully reviewed. The further the presentation moved from Joseph Hardin’s introductory questions to confrontation, the more I thought you would find the points less obvious and the transcription useful."

Note. Other posts about the Blackboard patent:

• 25 January 2007 - United States Patent & Trademark Office orders re-examination of Blackboard Patent;
• 9 December 2006 - Two contrasting views about software patents. A debate between Eben Moglen and Blackboard's Matt Small;
• 2 December 2006 - Blackboard: two separate re-examination requests to the US Patent and Trade Mark Office; and an application to the Court from Desire2Learn for a stay in proceedings;
• 27 October 2006 - EDUCAUSE on Blackboard: "patenting a community creation is anathema to our culture";
• 16 October 2006 -  John Mayer interviews various lawyers with patent knowhow;
• 10 September 2006 - The new "post-patent" environment for e-learning: a perspective. Guest contribution by Jim Farmer;
• 9 September 2006 - Blackboard's work for IMS;
• 8 August 2006 - Did the US Department of Justice know about the patent when it cleared Blackboard's acquisition of Web CT?;
• 26 July 2006 - Blackboard's US Patent 6988138.

Computers in schools are like zebra mussels - the social life of technology

Picture source: Ontario Ministry of Natural Resources

The Times Educational Supplement's coverage of a recent talk by Professor Yong Zhao, Director of the Centre for Teaching and Technology and US-China Centre for Research on Educational Excellence at Michigan State University, to the UK's Specialist Schools and Academies Trust Conference, had the strap line: "Technology is triggering teachers' survival instincts, warn US academics". The TES reports that Zhao's talk was received in frosty silence and with much shaking of heads. According to the TES, Zhao:

"believes that computers are like an invading species in schools. Survival of the fittest will dictate whether they are ousted, establish an uncomfortably equilibrium with the existing species (teachers, apparently) or replace them. "

I was not at the talk, but my guess is that this 1 hour video [100 MB MP4] of a wide-ranging, perceptive, and internationally well-informed talk by Yong Zhao given earlier in the year covers the same ground, as does this 2003 PDF of a paper by Yong Zhao and Kenneth Frank. What I found striking about the talk is the way Zhao pulls in data about educational use of ICT from across the world, and draws out similarities in the (failed) approaches of different OECD countries (including the large amount of funding poured wastefully into ICT spending in schools) over the last 10 years.  Zhao's comments on the difficulties of innovation, and the "normal fact" that  technology-as-innovation (new unreliable complicated system) fails, whilst technology-as-appliance (e.g. iPOD) are also interesting. His subsequent analysis, in which he views technology innovation and its spread and embedding from an ecological perspective, though much more contentious, provides plenty of "aha!" insights.  Watching this will be an hour well-spent.

Casablanca - re-enacted by bunnies

To prevent the sound in this 30 second re-enactment of Casablanca from catching you unawares, I've placed it in the  continuation post below. For short versions a wide ringe of film classics, go to Angry Alien Productions.

UN reports on dismal state of web accessibility

 

Via Pinsent Masons handy "OUT-LAW" legal developments news feed:

Ninety-seven percent of websites fail to achieve a minimum level of accessibility according to the first ever global web accessibility survey. A new UN convention aims to change that.

UK-based web accessibility agency Nomensa released its report today based on research commissioned by the United Nations.

Using a combination of manual and automated testing against the Web Content Accessibility Guidelines (WCAG), Nomensa examined the leading website in five different sectors in 20 countries, including its Head of State and leading airline, bank, newspaper and retailer. In all, the survey tested 100 websites.

Only the websites of the German Chancellor, the Spanish Government and the British Prime Minister met WCAG Level A, the minimum recognised level. No site met Level AA or higher.

World-class skills. HM Treasury publishes Leitch Review.

Update - 27/1/2007.  For four overlapping but contrasting views on the Leitch Review of Skills, by Bob Harrison, Markos Tiris, Kevin Donovan, and Donald Clarke, see the January 2007 issue of the Association for Learning Technology Newsletter.

A day earlier than some were expecting, the Treasury published the outcome from the Leitch Review of Skills: Prosperity for all in the global economy - world class skills, and [14/12/2006] there is a brief and coherent overview of the whole report on the TUC web site.

Several readers of Fortnightly Mailing will welcome the review's strong support for the work of Trade Union Learning Representatives, as well as its recognition that the emphasis must begin to shift from the provision of Level 2 training and education to Level 3.

People working in public sector education may be more anxious about the review's recommendation that routing public funding for adult vocational skills will "be through demand-led routes, ending the supply-side planning of skills provision". "Train to Gain" for employers, and, from 2010, the re-introduction of Learner Accounts for individuals will be the main ways of funding adult vocational education.  "These accounts should not be based on providing colleges with a block grant based on expected demand and clawing back the difference at the end of the academic year. Instead, colleges should receive full funding only when individuals enroll on and complete a course. This will give the best providers freedom to expand, while encouraging all providers to be more responsive to the demands of their customers – in this case, individuals."

The proposal for "rationalising the number of bodies aiming to articulate the views of employers into a single Commission for Employment and Skills" is not the throwback to the Manpower Services Commission that it might at first seem, since the latter, if I remember rightly, employed a large number of civil servants, which is not what is now envisaged. And although there will be trade union presence on the Commission, and, as mentioned above, the importance of union involvement in skills and education issues in organised workplaces is taken as read, it will not be on the old-style 50/50 basis: employers will be in the driving seat.  This squares with the overwhelming emphasis of the report that the purpose of training and education system is to produce what the labour market needs, plain and simple, with a sideline, if strong, emphasis on:

• entitling young people to training and education to a much greater extent than at present;
• pushing employers into ensuring that their workers can improve their skills, whether or not that particular employer needs them to so do.

You cannot argue with these latter two points.

Nowhere in the document do the terms personalisation or personalised (maybe that bit of mantra has not reached into the Treasury?) appear; and of on-line learning, e-learning, informal learning, or the new methods that are emerging for knowledge generation and dissemination there is no mention.  For a document concerning skills, that looks forward to 2020 (and bearing in mind that searching a PDF for key terms is sometimes a misleading way of reaching judgments of this kind!) this seems to be almost bizarre.

Finally I spotted a "dodgy" chart, reproduced below. Can anyone see what is wrong with it?

Blackboard: two separate re-examination requests to the US Patent and Trade Mark Office; and an unsuccessful application to the Court from Desire2Learn for a stay in proceedings

Originally written 2/12/2006. Updated 5/12/2006, 7/12/2006, 9/12/2006, 11/12/2006.

Two separate and almost simultaneous requests to the US Patent and Trade Mark Office have been issued in the US against Blackboard's US Patent 6,988,138. The first, on 17/11/2006 was issued by the New York based Software Freedom Law Center (SFLC), acting in support of the makers of 3 Open Source VLE systems: Moodle, Sakai, and ATutor.  The second, on 1/12/2006, was issued by the Canadian VLE company Desire2Learn, against whom Blackboard issued patent infringement proceedings earlier in the year.   On the same day Desire2Learn also issued an application to the court [64 kB PDF] for a stay in the patent infringement proceedings pending re-examination of Patent 6,988,138 by the US Patent and Trademark Office. 5/12/2006. Within 3 days, Blackboard had filed a rapidly produced, and extremely forcefully written 16 page opposition to Desire2Learn's application to the court for a stay, plus 5 exhibits, one of which is described as "a highly confidential submission to the U.S. Department of Justice during the approval process for Blackboard's merger with WebCT, in which Blackboard sets forth in detail the competitive threat posed by Desire2Learn", and is not in the public domain. The tone and content of Blackboard's 16 page opposition shows that both companies are playing for very high stakes. There is an extract below. 7/12/2006. Desire2Learn has filed its from Al Essa, picking up on three key features of Blackboard's opposition to the stay: "We have a company that has seized community property - your property and mine - and now in broad daylight is wielding our knife to cut its competitor's throat". 11/12/2006. From the Desire2Learn patent information page: "On Friday, December 8, during a routine scheduling conference held at the courthouse in Beaumont, Texas, U.S. District Judge Clark of the Eastern District of Texas denied Desire2Learn's Motion to Stay Proceedings. We had requested that the Court stay - or put the litigation "on hold" - while the U.S. Patent & Trademark Office reexamined the Blackboard patent. Judge Clark's actions do not affect the reexamination request that we filed with the U.S. Patent & Trademark Office on December 1."

SFLC's ex partes re-examination request is short and to the point, with the main VLE-based prior art cited being the Irish VLE Top Class, which the then Aberdeen University staff member Jim Kerslake  investigated during the 1990s, and whose signed declaration is included in the SFLC re-examination request.  Jim has posted a useful summary page relating to VLEs at that time, which is a model of clarity, and is an indication of how important the careful documentation of prior art can potentially be. SFLC's other two citings are publications: Information sharing: collaborating across the networks, by MIT's Phyllis Galt and Susan Jones; and Enhancing teaching using the Internet, by Stephen Hartley, Jill Gerhardt-Powals, Richard Stockton, Colin McCormack, Dee Medley, Blaine Price, Margaret Reek, and Marguerite Summers.

Desire2Learn's inter partes re-examination request is much more complicated and includes a mass of papers (SFLC's re-examination request is at the same URL). The Desire2Learn request references: details of systems available at the time (including Ceilidh, jointly developed by at Nottingham University, and Ngee Ann Polytechnic in Singapore); evidence relating to "role-based access control"; the previously featured EDUCOM/NLII Instructional Management Systems Specifications Document; and at least one sworn declaration. On a personal note it also includes documents relating to the 1996 Renaissance Project, an EU ACTS Project in which several Sheffield organisations, including The Sheffield College, where I then worked, had a role.

What happens next? If the court  - and it is quite a big if - grants the postponment requested by Desire2Learn (and see the extract below for part of Desire2Learn's rationale for the postponment)  then attention will switch to the 2 re-examination requests, which could possibly result in Patent 6,988,138 being deleted, or modified, or consolidated. The process will not be quick. Blackboard will already surely be aware of most if not all of the material assembled by SFLC and Desire2Learn, and you'd expect, from its apparently unfazed reaction to SFLC's re-examination request, that it will have detailed responses (which might well up the ante) to both re-examination requests, just as the company was quick to oppose Desire2Learn's application to the court for a stay.

Extract from Desire2Learn's application for a stay in the patent infringement proceedings.

The patent on which the plaintiff, Blackboard, Inc. (“Blackboard”) has asserted patent infringement is currently the subject of both an ex parte [i.e. the Software Freedom Law Center's] and an inter partes [i.e. Desire2Learn's]  reexamination request filed with the United States Patent and Trademark Office (“PTO”). The currently pending ex parte request seeks to invalidate the patent-in-suit based on prior art that was never submitted to or considered by the PTO during the six years that the patent was in prosecution. Likewise, the inter partes reexamination request, filed by Desire2Learn Inc. (“Desire2Learn”), seeks to invalidate the patent-in-suit not only based on prior art that was not submitted to or considered by the PTO during the prosecution of the patent-in-suit, but also based on prior art that is not part of the pending ex parte request.

Because the currently pending ex parte reexamination, as well as Desire2Learn’s inter partes reexamination request, will likely narrow the issues or eliminate the need for trial and because doing so would conserve resources, Desire2Learn requests that this Court enter an order staying these proceedings pending the completion of the ex parte and inter partes reexaminations. EchoStar Technologies Corp. v. TiVo, Inc., 2006 WL 2501494, at *5 (E.D. Tex. July 14, 2006) (granting motion to stay proceedings pending an ex parte and inter partes reexamination).

Extract from Blackboard's opposition to Desire2Learn's request for a stay in the patent infringement proceedings.

Plaintiff Blackboard Inc. (“Blackboard”) filed this case in July. In the answer that Defendant Desire2Learn Inc. (“Desire2Learn”) filed in September, Desire2Learn identified alleged prior art that it asserts renders the patent-in-suit, U.S. Patent 6,988,138 B1 (the “’138 patent”), invalid. Now, in December, less than a week before the Case Management Conference, and more than six weeks after the parties agreed in their Rule 26(f) Joint Conference Report to a February 2008 trial date and a discovery schedule that has already required Blackboard to expend significant resources, Desire2Learn has filed an inter partes reexamination with the United States Patent and Trademark Office (the “PTO”) and simultaneously moved to stay this case. Desire2Learn’s motion is a stall tactic crafted to allow it to continue its infringement of Blackboard’s intellectual property for as long as possible. Staying the case would not create judicial efficiency. To the contrary, a stay would harm Blackboard by allowing Desire2Learn to avoid an injunction and continue to infringe Blackboard’s presumptively valid patent.

Note 1. On 2/12/2006 I gave this post a somewhat more cautious emphasis once a helpful reader had pointed out the lack of unequivocal data available on the successs rates of inter partes re-examination requests. On 3/12/2006 I added links below to two USPTO documents summarising data relating to the processing of patent re-examination requests. Reference is made to one of these documents in my response to Joseph Hardin's comment below. On 4/12/2006 I added a link to the archived Ceilidh site. On 5/12/2006 I added a note about Blackboard's opposition to the application for a stay, and an extract from that document.

Note 2. Links to USPTO documents summarising, to 30 June 2006, data concerning the processing of  ex partes re-examination requests [100 kB PDF] and inter partes re-examination requests [100 kB PDF].

Note 3. Other posts about the Blackboard patent:

• 9 December 2006 - Two contrasting views about software patents. A debate between Eben Moglen and Blackboard's Matt Small;
• 2 December 2006 - Blackboard: two separate re-examination requests to the US Patent and Trade Mark Office; and an application to the Court from Desire2Learn for a stay in proceedings;
• 27 October 2006 - EDUCAUSE on Blackboard: "patenting a community creation is anathema to our culture";
• 16 October 2006 -  John Mayer interviews various lawyers with patent knowhow;
• 10 September 2006 - The new "post-patent" environment for e-learning: a perspective. Guest contribution by Jim Farmer;
• 9 September 2006 - Blackboard's work for IMS;
• 8 August 2006 - Did the US Department of Justice know about the patent when it cleared Blackboard's acquisition of Web CT?;
• 26 July 2006 - Blackboard's US Patent 6988138.

Educational change and ICT - a new report from Becta says "concentrate on people not technology"

An outline of the eSIR research methodology

Last year Becta commissioned the Open University's Peter Twining, Roger Broadie, Deidre Cook, Karen Ford, David Morris, Alison Twiner, and Jean Underwood, to lead a review of Priorities 2 and 3 of the DfES e-Strategy, as they relate to schools and colleges. (3/12/2006 - not all the authors are OU employees. See Peter Twining's comment below for clarification.) These Priorities are (or rather were, at the time the report was commissioned; the six in the 2005 e-Strategy having since been boiled down to four): Priority 2. Integrated online personal support for children and learners, and  Priority 3. A collaborative approach to personalised learning activities.

The resulting "e-Strategy Implementation Review" (eSIR), which should be said with a northern accent to get the acronym's weak quip, has just been published as a 106 page, 2 MB PDF.

A short post like this cannot properly cover the content of the report, so all I am attempting here is to convey its breadth and depth.

In 19 different languages - eLearningPapers - first issue of a new European digital publication

eLearning Papers, is an ambitious new EU-funded digital publication "providing articles, interviews and good practices related to e-learning", all of which appear to be available in 19 different languages, which is a major plus. Articles in the first edition are as follows.

by Kussai Shahin, Cristina Cogoi, Daniele Sangiorgi

mGBL - mobile Game-Based Learning: perspectives and usage in learning and career guidance topics

by Sharon  Monti Bonafede, Felix San Vicente, Vanio Preti

Characteristics and Capacity of e-learning platforms for learning languages (Summer 2006)

by Ian Roffe

E-learning Development and Exchange: practical lessons from developing e-language tools for support in lesser-used European languages

by Tapio Varis

eLearning and higher education

by Jean Johnson, Jonny Dyer

User-defined content in a constructivist learning environment

Crawling into the skin of a user....

A few weeks there was "climbing inside your users' heads and seeing your web site through their eyes". In Beyond Search, a 22/11/2006 article in Information World Review, by David Tebbutt, we have the equally extreme “a good information professional should be able to crawl into the skin of the user and understand their thought processes", in this case a quote from Susan Feldman, from the market intelligence firm IDC, in support of the argument that . The focus of Tebbutt's article is the shake-up that is happening in the commercial search world, stemming from the way in which vast tracts of content are now being routinely indexed, with storage costs no longer really relevant, and the increasing sophistication of the software systems that determine how search terms are turned into search results.

Where does this leave the information professional? According to Tebbutt:

"it means that if your department is not already integrated with the organisation, it soon will be. Whether the initiative comes from you, from IT or from somewhere else, the fact is that your world, the business world, and the IT worlds will merge."

On a related issue, and straying into territory that I observe rather than in which I have professional expertise, here is an interesting report of a discussion between Tim Berners-Lee ("father" of the Web) and Peter Norvig (Director of Research at Google) at the July 2006 American Association for Artificial Intelligence conference. This  highlights the "divide" between people who want information and the links between it to be curated, with thought given to how both are described, and people who think that as more and more of the content "out there" is produced by amateurs, never going near an information or ICT professional, the only way forward is for search tools to extract meaning from the content without reliance on how that content has been categorised.