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From software patent wars to cloud computing: How the LMS has evolved

Roger Atkinson

How much of your reading is initiated by an interesting headline? Like one that appeared in The Economist in 2013, "Obituary for software patents" [1]. While the topic may at first glance seem to be a little specialised or even quite boring, The Economist's headline links to a salacious topic from the past, 'software patent wars', to a contemporary buzz phrase, 'cloud computing', and to what I feel is a significant trend in the recent evolution of the LMS (learning management system). So for me that headline initiated a lengthy but intriguing reading and re-reading path.

To begin with software patents, it is less than a decade since the "patent war" that is perhaps the most memorable for IT in higher education. This was Blackboard Inc. suing Desire2Learn Inc. in 2006 for an infringement of Bb's U.S. Patent 6988138 over learning management systems [2]. Bb's legal action created outrage in educational technology communities, but over time the issue quietly faded away. The end point in this "patent war" was summarised succinctly by Keller (2010) [3]:

Patent No. 6,988,138 granted Blackboard the rights to course-management software in which a single user could have multiple roles in multiple courses. A federal jury in Texas ruled in 2008 that Desire2Learn had infringed the patent and ordered it to pay Blackboard $3.1-million. ... But the U.S. Patent and Trademark Office ruled later in 2008 that the patent should be invalidated because others had used similar technology to what Blackboard said it had invented. Blackboard officials vowed to have the ruling overturned on appeal. ... Last week, a Blackboard representative said in an e-mail that the company had ended its appeals and that the patent had been officially terminated. [3]
Whilst Blackboard's 2006 legal action put Bb into the "patent troll" category attacked by The Economist's "Obituary for software patents", it is perhaps more interesting to probe further into reasons for Bb's announcement that "the patent had been officially terminated". As an advance organiser: "losers change direction rather than persist with a failed tactic!" The most obvious reason of course was legal setbacks - especially the success of Desire2Learn's appeal in 2009 [4]. Among the contributions to the legal counterattack on Bb was the widespread publicity for published work that undermined Bb's claim that it invented the LMS [2]. Thanks to the Internet's capacity to simulate a library of almost infinite size, much of that critical publicity remains available online [5]. It won't go away; even the infamous 2006 patent remains online [6].

A second obvious reason was the deep resentment Bb's action generated amongst the population that Bb had to win over and keep on side in order to sell licences and services: university, college and school sector teachers and management [2, 4]. As another advance organiser: "one cannot declare war upon one's own customers and potential customers!" Looking back at some of the references [2], it was a warring period, a blunder by Bb: "Boycott Blackboard", "Blackfate" [7]; "... like poking a stick into an anthill ... a furious reaction..." [Downes, 8].

However, there another reason, explored in the rest of this column, that is possibly more important, from a longer term perspective. This is 'outsourcing', now being linked increasingly to a contemporary buzz phrase, 'cloud computing'. In the Australian context, at least, 'outsourcing' is often an emotive term associated with fears about losses of jobs to overseas suppliers who provide cheaper services [9]. By contrast, within the narrow and very specific context of IT in higher education, such fears seem to be quite muted [10]. This could be in part because IT is a relatively rapid growth area, in which outsourcing facilitates expansion, on a 'few or even no new jobs in house' scenario, in contrast to a 'job losses' scenario. Also, in part, there can be persuasive arguments within academia that IT services are not in the 'core mission and competencies' class [11]. Furthermore, the outsourcing of IT services is becoming better known under a catchy new label, 'cloud computing', thereby distancing a little from the fears associated with the outsourcing of other kinds of services or in other industries. Lastly, in the very specific case of outsourcing/cloud computing for LMS services, a prominent Australian supplier has emerged, thereby avoiding the extra apprehension associated with 'offshoring' (i.e. outsourcing to an entity in another country [12]).

The prominent Australian supplier of outsourcing/cloud computing for LMS services is NetSpot, a South Australian company [13]:

Your Premium eLearning Partner
NetSpot supports education organisations within Australia and New Zealand. We provide professional services including managed hosting for over 2,000,000 users, technical support, training, content migration, implementation support, and help desk. [13]
The phrase "over 2,000,000 users" added to the length of my reading path. Divert to the ABS website, to find that Australia's student population (all sectors of formal education) was 2,040,400 in May 2012 [14]. Perhaps 'users' refers to 'unit enrolments'? But, no matter, it is clear that with its large number of university and other educational institutions as clients, NetSpot is attaining the most important of the common goals shared by 'outsourcers' and 'outsourcees', namely economies of scale [11]. Why run your own server bank, software maintenance processes, technical help desk, etc., for (say) 100,000 LMS unit enrolments, when a third party can let you into the economies of scale attained with (say) 2,000,000 unit enrolments? And that's so much easier these days, given the previous decade's spectacular advances in network, server and data storage technologies, especially with respect to reliability and cheapness.

Besides economies of scale, there are numerous other advantages, disadvantages and issues associated with outsourcing/cloud computing [11] [15]. But one aspect seem to have received little attention. This is the emergence of large scale purchasing power (for want of a better term). To illustrate this concept by way of analogy, Australians are familiar with arguments between our very powerful supermarket duopoly (Coles and Woolworths) and their suppliers, for example producers of dairy products and the dairy farmers. Like, 'accept our downwardly revised unit price for your contract renewal, or no deal, we will not put you on our shelves'. Coles and Woolies have scope to exert that pressure owing to their capturing of high proportions of the Australian shopper population. Adapting the supermarket scenario to the LMS market, producers (such as Bb) have accepted that the good old days of rising income from software licensing fees that could be increased every year (and defended by 'patent wars') are gone. Now it's more like, 'discount or you won't appear on NetSpot's shelves'. Actually, Bb does 'appear on NetSpot's shelves', in the form of Collaborate and other Bb products [13], though we do not know the extent of the 'discount' or other inducements. In other apparently adaptive tactics, Bb is becoming also a provider of managed hosting ('taking to the clouds!') [16], in their case with Bb Learn; has bought forward new products (such as Collaborate, Connect, Mobile and Analytics); commenced offering free course sites for small scale users [16]; and has continued its old game of 'buying up' or 'buying into' competitors [17].

Is there a danger for universities and others who have been strong supporters of Moodle and other open source LMSs, and 'outsourcees' such as NetSpot, as Bb buys into competitors? Young (2012) [17] suggested that there is a danger, as "... Blackboard essentially owns the open-source alternatives [Moodle, etc.] as well". I find from my reading that Young's view is too pessimistic. The history of these matters suggests to me that Bb has been forced into a defensive strategy, for example offering free course sites (perhaps in response to Pearson and Google developing a free LMS [18]), and in their newer products offering integration with LMSs other than Bb's own Learn. Ironically, one could suggest that as LMS evolution has proceeded, Bb has been forced to learn, collaborate and connect with others.

Also, the history suggests to me that Australia's universities (and other LMS users) are on a safe path with current LMS outsourcing/cloud computing directions and providers, though it could be important to be united behind a small number of Australian-based 'outsourcees' or even a single 'outsourcee'. The big challenge for universities is not technological infrastructure for the LMS, it is populating the LMS with good courses, increasing the numbers of students enrolled, and sustaining their satisfaction levels.

This column has concentrated upon corporate aspects of the evolution of the LMS, with no mention of evolution in teaching and learning aspects of the LMS. That's not an oversight! Firstly, 'pedagogical evolution' is beyond the scope of this brief column, but secondly and perhaps more importantly, it could be argued that 'corporate evolution' has followed a more tortuous path (and therefore is more salaciously interesting!), from software licensing and patent wars, to software-as-a-service [11] and cloud computing. By contrast, 'pedagogical evolution' got away to a fast start, and perhaps a smoother, 'non-salacious' or 'low controversy' path, being strongly influenced from its beginnings some 15 years ago by emerging new ideas in pedagogy, especially constructivism. For example, as expressed by Moodle's originator, Martin Dougiamas [5] (who did not get into patent wars):

In 1998, I started exploring educational theory to find directions for improvement. Constructivism, and particularly constructionism, was immediately attractive to me as a tool to help understand learning and the nature of knowledge (Dougiamas, 1998) as were theories of how reading and writing could be used in learning (Dougiamas, 1999). This is because the Internet as a medium is well-suited to interactive constructive activities... (Dougiamas, 2000, [5])


  1. The Economist (2013). Obituary for software patents. 13 December.
  2. Atkinson, R. (2006). Has Blackboard become Blackbeard? HERDSA News, 28(2).
  3. Keller, J. (2010). Blackboard drops appeals on software patent. The Chronicle of Higher Education, Wired Campus, 30 Nov.
  4. Wikipedia (2014). Blackboard Inc. - Legal matters (viewed 21 Mar 2014). (provides an extensive bibliography)
  5. See, for example:
    Wikipedia. History of virtual learning environments. (viewed 21 Mar 2014).
    MoodleDocs. Online learning history. (viewed 21 Mar 2014).
    Dougiamas, M. (2000). Improving the effectiveness of tools for Internet based education. In Flexible futures in tertiary teaching. Proceedings of the 9th Annual Teaching Learning Forum, 2-4 February 2000. Perth: Curtin University. (documents the origins of Moodle).
  6. US Patent & Trademark Office (2006). United States Patent: 6988138.
  7. See for example:
    Boycott Blackboard. (viewed 21 Mar 2014).
    Blackfate. (viewed 21 Mar 2014).
  8. Downes, S. (2013). The Blackboard patent. (viewed 21 Mar 2014).
  9. See, for example:
    Smith, P. (2013). Jobs to go as Rio Tinto signs $100m outsourcing deal with IBM. Financial Review, 22 October.
    Smith, P. (2013). Toll plans outsourcing of up to 200 jobs. Financial Review, 8 October.
    Ryan, P. (2014). Tax watchdog monitoring ATO outsourcing plan. ABC News, 16 January.
    Wordsworth, M. (2011). Union fears insurance jobs will go offshore. ABC News, 13 September.
  10. For example, the National Tertiary Education Union's statement on 'Outsourcing and Contracting Out' seems very brief at only about 215 words, with no links to more detail elsewhere.
  11. Hignite, K., Katz, R. N. & Yanosky, R. (2010). Shaping the higher education cloud. EDUCAUSE Publications.
  12. See, for example: ACTU (2014). Savage Qantas jobs cuts a devastating blow for workers and the economy. Media release 27 February.

    Financial Services Union. Offshoring Watch. (viewed 21 Mar 2014).
  13. NetSpot. There are other, smaller scale Australian-based providers or aspirants, e.g. ELMO,; My Learning Space,; Nine Lanterns,; Realize Online,
  14. Australian Bureau of Statistics. Education Services, Society and Community Datasets, Soc4: Field of education, by Sex, by Age, May 2012.
  15. Wikipedia. Cloud computing. (viewed 21 Mar 2014).
    Ross, J. (2013). Academe heads for the cloud, with collaboration firmly in mind. The Australian, 3 April.
  16. Blackboard. Managed hosting.; CourseSites.
    Hutchinson, J. (2011). Unis prepare for next Cloud wave: Blackboard managed hosting gains traction as universities contemplate further outsourcing moves. Computerworld, 16 March. 2011.
  17. Young, J. R. (2012). Blackboard buys 2 leading supporters of open-source competitor Moodle. The Chronicle of Higher Education, Wired Campus, 26 March.
  18. Fischman, J. (2011). Pearson and Google jump into learning management with a new, free system. The Chronicle of Higher Education, Wired Campus, 13 October.
    Google Apps, EDU. OpenClass

Author: Roger Atkinson retired from Murdoch University in June 2001. His current activities include honorary work on the TL Forum conference series, Issues in Educational Research, and other academic conference support and publishing activities. In mid-2012 he retired from a 17 year association with the publishing of AJET. Website (including this article in html format):

Please cite as: Atkinson, R. J. (2014). From software patent wars to cloud computing: How the LMS has evolved. HERDSA News, 36(1).

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