And implementation is where there is differentiation. Just as Disney’s “The Wild,” a film about a Central Park Zoo lion accidently shipped off to Africa, was in production for years before DreamWorks’ “Madagascar,” teams are what make the difference, not necessarily what they’re making.

DreamWorks crunched and built their own movie about a Central Park Zoo lion accidently shipped off to Africa in a timeframe that was shorter than Disney’s. They got to market first with a different script, different characters, different art style and actors. They basically just made the other guy’s movie faster. And they won: Madagascar spawned sequels and penguin junk everywhere.

And so it is with software. DreamWorks had every right to act on its knowledge of Disney’s pipeline, and to work harder to get their own project done faster. Sound like any software projects you’ve worked on in your career?

This tells us that, in the digital economy, where digital assets and revenue sources are created by teams working to create what are, essentially in the end, large pools of 1’s and 0’s, implementation is the differentiator, not functionality.

If your competitor has built and patented the only functionality anyone actually wants in your market, everyone loses if they implement it poorly. But if they copyright their poor implementation instead of patent it, then anyone can build a better version and compete on quality instead of functionality.

There was a time when functionality was the differentiator for software. In the days when it was a major breakthrough to plug an Atari ST into a lathe, functionality was the biggest part of software. Today, however, mobile devices have imposed UI expectations on developers. Poorly designed interfaces can tank functionally solid applications. A better movie is a better movie, even if it’s basically the same movie you’ve seen 100 times before.

And a better app is a better app, even if it’s just getting you a pizza or finding you an apartment.

Software needs copyright protections on the actual code, not patent protections on the functionality. Copyright ensures someone cannot simply take your application and sell it as their own work.

Patent law, on the other hand, attempts to give developers a monopoly on meta-concepts that often restrict the freedom of other developers to build as they please.

Sadly, software patents do seem to be here to stay, but it would certainly save everyone time and effort if they’d just go away. We could handle this mess with a big private Git repository hosted at the copyright office, where source code could be checked in privately for copyright registration, and with the addition of some law laying down a line on where plagiarism can exist therein. Obviously, boilerplate code and headers would need to be exempted from copyright restrictions, and 70+ years seems a bit long for software to remain in private hands, but frankly, those restrictions sound preferable to not being able to make bookmarks without being exposed to legal risks.