Scrabble v. Scrabulous

Hasbro, the creator of my grandmother's favorite board game, filed suit yesterday against Jayant and Rajat Agarwalla, the makers of the Facebook application Scrabulous. With over half a million users, Scrabulous is likely the most popular online version of Scrabble (Hasbro's own Facebook version of Scrabble, which was released last week, has a little over 9,000 users).

The Agarwalla brothers argue that "[Scrabble] has been copied so many times in so many different ways, by other websites and board games, that the copyright no longer applies," but they should be citing Fair Use doctrine, which says the use ain't fair if "the effect of the use upon the potential market for or value of the copyrighted work" is measurably negative. The overwhelming popularity of Scrabulous compared to Hasbro's online product is indisputable, but neither Hasbro's version nor the Agarwalla version cost anything. And because the Agarwallas don't have a physical product, Hasbro stands to benefit from both versions in the case that a user decides to buy the old fashion board game.

But suppose Hasbro and Mattel—which owns the international rights, and is suing the brothers for international copyright violations—were to win their cases. They're still idiots, and here's why:

Despite earlier stories suggesting that Hasbro was negotiating with the Agarwallas and that talks stalled when the brothers asked for too much money for Scrabulous, Blecher said Hasbro has consistently declined to negotiate. "Hasbro never contacted the folks who have the infringing application," he said, adding that the company did, however, send the brothers a DMCA notice, warning that they were violating copyright law.

So, instead of negotiating a purchase of Scrabulous, which would come with 506,580 daily users, Hasbro is suing to shut down the application? As has been the case with other unpopular changes to Facebook, Scrabulous loyalists are organizing. Application designer Venkat Koduru has created an app. called "Save Scrabulous," which posts comments from people who love the game.

Here are a few posts defending Scrabulous:

The secondary issue is that, in order to get anything more than a C&D and a clever redesign from the Scrabulous developers, Hasbro/Mattel will need to demonstrate financial harm. I cannot sit at my desk and play a game of Scrabble, so I would never purchase it for that purpose. Where's the financial harm in me not buying something I was already not buying? -Facebook user Mike Gentine

I have bought tons of Hasbro original products, for myself and my students, friends and relatives- because of the free marketing done by people like the brothers who built Scrabulous. -Vidya Wang

…And a few posts defending Hasbro and Mattel:

The issue here is that Scrabble is a trademarked game. Scrabulous is sufficiently close to scrabble to constitutet rademark infringement. If the devs had called the game something else no one would have not noticed. Besides you can copyright the design elements of the game. -Joe Brady

Everyone keeps saying how Scrabulous has helped sales of Scrabble. That seems to me like stealing someone's toaster, but then justifying yourself by giving the previous owner a few slices.

If Hasbro/Mattel are not allowed to excercise the control over the Scrabble name and design that they are legally entitled to, then the whole idea of intellectual property rights becomes redundant. This is the very purpose for which such laws exist.
-Michael Deighton

How do the patrons of Hit&Run feel?