"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.