Implementing Open Standards in Open Source

Industry standards morph into functional computer software. I use the word “morph” on purpose to avoid any term that can be found in US copyright or patent law. Morphing is a special effect in motion pictures and animation to turn one image into another through a seamless transition. Wikipedia shows an image of George W. Bush morphing into Arnold Schwarzenegger, and so too the morphing of an industry standard into software can result in something that looks entirely different at an expressive level and that potentially does useful things.

In the case of software industry standards, morphing transforms a written specification into working code through a mental process conducted internally by programmers and engineers. The end result – functional software – is a created outcome of human intellect that starts with a written specification and ends with a working implementation.

For attorneys, software specifications are unusual beasts. A specification may be the description of something patentable, but it is not itself patentable. Only an implementation of a specification, something that can be made, used, or sold, may be subject to patent infringement lawsuits (35 USC 271). Likewise, a specification itself can also be copyrighted, although the copyright does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in the specification (17 USC 102(b)). The rights to intellectual property in an industry specification (and thereby perhaps control over its intellectual content) are thus subject to some difficult legal questions with uncertain answers.