Scrabble v. Scrabulous

|

Clint just triple-word-scored your ass

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?

Advertisement

NEXT: The Public Is Very Interested, but Not Legitimately

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Sometimes, in fact, people from Rhode Island can be very, very stupid. I’ll be the first to admit it.

  2. How do the patrons of Hit&Run feel?

    I start by questioning whether intellectual property is, in fact, property.

  3. How do the patrons of Hit&Run feel?

    I feel like bringing sexy back.

  4. I start by questioning whether intellectual property is, in fact, property.

    It is, but is due for some tweaking.

  5. I have never played Scrabulous, but I think there are a few key things to point out.

    1. Scrabble, as the original game, is really not all that creative. Unless Scrabulous is using specific design elements (the layout of the board, the same letter values, other rules, etc.), then I can’t really feel too much for Hasbro here

    2. Scrabulous has no defense against the argument that they are riding off of the existing concept of Scrabble, on account of their name.

    3. Re: Michael Deighton’s response (as posted in the original post)…. what?

    4. Part of me wants to say “oh well, your loss that you waited so long” to Hasbro, but if Scrabulous really is that close to Hasbro’s version, and Scrabulous is generating some sort of profit… I don’t know.

  6. It is, but is due for some tweaking.

    Hit me with why.

    (I am an unabashed DotCommunist — I don’t believe that property concepts can survive the invention of a means of costless duplication, so you have your work cut out for you!)

  7. How do the patrons of Hit&Run feel?

    I’m feeling lucky.

  8. Scrabble, as the original game, is really not all that creative. Unless Scrabulous is using specific design elements (the layout of the board, the same letter values, other rules, etc.), then I can’t really feel too much for Hasbro here

    Yes, it did (same values for letters, same board layout, and I believe even same letter frequency distribution). So, if there *is* a reasonable intellectual property argument to be made, it would be made on the grounds that the game is a clear copy designwise.

  9. End Copyright Now

  10. 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.

    This has to be the most inept analogy I’ve ever read.

  11. Copyright protects the specific expression of a creative idea. It doesn’t, for example, protect the rules of the game, but it would protect the contents of the instruction booklet.

    It’s a fine distinction, but it could be argued that Scrabulous is a derivative work based off of that rulebook. Same of course for the board layout, and perhaps the scores associated with the pieces.

    With the trend towards copyright maximalism in the courts, I think things will go Hasbro’s way.

    That said, I think it’s stupid. Attacking fan-made derivatives that don’t impact your bottom line is stupid, always. Whether it’s fanfic or digitized versions of a game, anime music videos or youtube dance videos, your fans are your customers. It’s never wise to piss them off.

  12. This has to be the most inept analogy I’ve ever read.

    Yah. Slightly less elegant but more accurate would be:

    I have a toaster. You made a drawing of my toaster, and then photocopied that drawing and shared it with whoever wanted one. The photocopies become popular. I sue for royalties on the notion that I owned the model upon which your drawing was made.

    You tell me to kiss your ass.

  13. Hasbro ought to have to demonstrate harm done to it, which as far as I can tell there hasn’t been.

  14. This has to be the most inept analogy I’ve ever read.

    Yes, it’s like a monkey who, once getting the stick, uses it for cooking.

  15. Poor decision.

    They’d do better striking a deal that legitimately turned the offending site into a revenue generator: have them put ads and links to the Hasbro website on the pages.

  16. How do the patrons of Hit&Run feel?

    I’d actually like to hear from Chuck Woolery or Charlie Tuna on the matter.

    (On a related note, Sony some time ago threatened legal action against FlashGames concerning its properties–hence no Barry & Enright- or Merrill Heatter-affiliated games on the FG site.)

  17. Intellectual property is designed to compensate producers for their efforts, and when it doesn’t do this, it should not be respected – as opposed to real property, which needs no such justification. No harm, no foul. (This reasoning can be non-tortuously read from the Constitution, so if the judges of the Supreme Court weren’t all wusses, they could bring the copyright term back down to a reasonable length like 10-20 years, and then this case wouldn’t have happened.)

  18. Other than my feeling that copyright and trademarks are abused concepts (lasting an incredibly long time, as opposed to something, like say, medicine patents), Scrabulus does look like it was copying Scrabble much like China is copying GM/BMW/Mercedes. Where Hasbro played this wrong though is launching a similar product before going after Scrabulus. If they truly wanted to protect their copyright, as soon as they thought about creating a similar product online, they should have asserted their patent. By launching a similar product, they were tacitly condoning Scrabulus assuming they would immediately get customers. When their product failed, they fell back on the old “copyright” protection to eliminate competition. I think some statute of limitations should apply to companies that assert their copyright after allowing the coexistence of a similar product in a market. Either compete or protect your copyright, don’t try and save money by seeing if you can win by competing, then when lost, buy the lawyers.

  19. I don’t believe that property concepts can survive the invention of a means of costless duplication

    I-tunes generates profits.

    Hulu sells ad time.

    “Free” Venture Brothers down loads start with an ad.

    Your ideas are so 2001.

  20. LMNOP –

    Except that the drawing would have to be able to make toast. The people playing scrabulous are getting the same end benefit as a scrabble user.

  21. End Copyright Now

    Nah.

    Move back copy right expiration to more reasonable time frames…25-30 years should be good.

  22. Warren | July 25, 2008, 12:56pm | #
    End Copyright Now

    Spoken like someone who has never written or created something that anyone would want to buy.

  23. Information wants to be $5.99.

    Apply as necessary.

  24. They will take my intellectual property when they pry it from my cold dead hands!!!

  25. My wife, to practice for a group game, played 2 rounds against the compter opponent. In the first round it played the N word. In the second round it played another racial slur, although as the first half of spic-and-span maybe that one is excusable.

  26. The people playing scrabulous are getting the same end benefit as a scrabble user.

    Disagree. Playing Scrabulous was a different experience qualitatively than playing Scrabble. It’s along the difference between playing Diplomacy in person and playing it by mail.

    I-tunes generates profits.

    Hulu sells ad time.

    “Free” Venture Brothers down loads start with an ad.

    I didn’t say profit couldn’t be made. I said the notion of property as inviolate is demonstrably untrue. For every iTunes song in the wild, there are probably three hundred of the same song as a privately ripped MP3 or copies thereof. Doesn’t mean that iTunes can’t make money.

    It just means that iTunes isn’t dealing in *property*.

  27. The Writers of Happy Birthday!

    They will take my intellectual property when they pry it from my cold dead hands!!!

    LOL. Writers wis the thread!

  28. I stand firmly in the “fuck copyright” category.

  29. I don’t believe that property concepts can survive the invention of a means of costless duplication,

    Most money these days exists in digital form and can, presumably, be costlessly duplicated (only a tiny percentage is in cash, and I would even argue that the cost of printing more cash is de minimis).

    Does that mean that no one can/should have property rights in their money?

  30. How do I feel? Scrab-tacular!

  31. Money is not property; the concepts are not fungible.

    The rights one has to each are very similar, but not identical. Money plays a functional role in facilitating commerce by providing a common means of exchange, and as such can and should be protected from unlawful duplication.

    (And, FWIW, arguing that digital records of assets are themselves cash is confusing the map with the territory in the very worst way.)

    Either way, there’s a chasm and a leap between money and songs, videos, and board games.

  32. lmnop,

    It’s along the difference between playing Diplomacy in person and playing it by mail.

    Diplomacy by mail, also called “real time” diplomacy.

    Lepanto opening – suck it Turkey!

  33. The root of the problem here is the ridiculous length of copyright protections.

  34. My wife, to practice for a group game, played 2 rounds against the compter opponent. In the first round it played the N word.

    If it spelled out “Noose” would joe have had it arrested?

  35. Does that mean that no one can/should have property rights in their money?
    It means that we shouldn’t have fake digital money that’s not even backed up by fake paper money.

  36. Yeah, this is a clear case where intellectual “property” shows that it is nothing of the sort. Simply put, if this is illegal so should playing Scrabble with a homemade game board and pieces. These guys weren’t making a fraudulent profit from this and, in fact, were giving away some pretty good advertising to Hasbro.

    Somehow we’ve arrived at this bizarre notion that the only way to profit from an idea is to forcibly prevent other people from using it. No matter what tortuous legal mechanisms you come up with, you will never remove the gameplay and rules of scrabble from my brain. I will do what I want with the contents of my own brain, thank you very much, and that includes sharing said contents with other people.

    And if I should try to claim “rights” over these ideas and profit from them, I would simply be guilty of basic fraud. No bullshit necessary.

  37. Diplomacy by mail, also called “real time” diplomacy.

    Lepanto opening – suck it Turkey!

    Word.

    For some reason, I always end up playing Russia.

  38. For me the issue is less about whether Hasbro has a case here (they probably do considering how IP works) and more about, as the article noted, what a stupid business decision this is.

  39. End Copyright Now

    Right…or at least seriously weaken it.

    Spoken like someone who has never written or created something that anyone would want to buy.

    Meh…this is a facile argument. Prior to copyright laws people wrote stuff that others wanted to buy. You think books, music and such were written only after copyright came into existence?

    The bottomline is that monopoly is rarely a good thing for the state to enforce.

    I don’t believe that property concepts can survive the invention of a means of costless duplication

    TANSTAAFL. Really.

  40. As someone who has vigorously defended IP rights in this forum in the past:

    Patents cover designs, methods, and implemenations of inventions. One of the dumbest patents ever covers using a laser pointer to exercise a cat — and I actually saw a laser pointer in the cat toy section of the store referencing said patent.

    Hasbro/Mattel have not claimed a patent; so I don’t think the rules of the game (a method) are protected.

    Copyright covers expressions of ideas, images, and sounds. Scrabulous may infringe on the look and feel of Scrabble, but Hasbro/Mattel should be required to show that Srabulous actually devalued their IP somehow. I can’t see how that is true.

    Trademarks cover business names, marketing expresssions, etc. I can’t see how anyone would confuse Scrabble and Scrabulous.

    Hasbro/Mattel should have bought out Srabulous; replaced the name with Srabble; then tried to extract some value (eyes for advertisiing or some such thing) from the half million current users.

    It’s hard to defend IP when there are so many corporate dickheads in the world.

  41. I think that Hasbro has a legitimate claim to copyright infringement, and I have a feeling that the law is on its side. That being said, Hasbro is (or at least should be) under no obligation to actually enforce its copyright over Scrabulous. They stand to gain nothing, and will probably lose the respect of Scrabulous players, who would otherwise have nothing against the company. Simply because Hasbro has this option does not make it wise for them to exercise it.

  42. Somehow we’ve arrived at this bizarre notion that the only way to profit from an idea is to forcibly prevent other people from using it.

    Get a life Stretch.

    If you make a .pdf of a novel covered by copywright, post it on the internet where anyone can get to it, then sales of the printed version of the novel drop to nearly nothing then you have done serious financial harm to the owner of the copyright.

    The philosophical question is whether or not the owner of the copyright has any “real property right” that leads to an expection of being able to make money by selling copies of a creative work.

    Useability is completely irrelevant to the discussion.

  43. I did a paper on this issue in law school. Games are not copyrightable subject matter. Game boards can be copyrighted like a picture, and rules can be copyrighted as a written work, but neither can be used to exercise rights over the game itself. Unless you patent a game, it falls into the public domain automatically.

    Over the last 70 years, game companies have used a lot of fun tricks to try to protect games, all of which courts have rejected, including games with the rulebooks, like the game being a derivative work of the rules or the game being a public performance of the rules.

    Needless to say, I think Hasbro is overreaching in light of the case law and the statutory exclusion of processes and methods of operation from copyright protection.

  44. Unless you patent a game, it falls into the public domain automatically.

    Exactly! I’ll also add that Scrabble’s patent (#2,752,158) expired in the 1970s. And even that only included those little triangles sticking off of the score spaces, so you could see what the score would be without moving the tile.

    The Scrabble concept is absolutely public domain.

  45. I’m thinking USFL-type damages.

  46. @Tom: I kinda thought so, but didn’t have the legal background to argue it. Copyright usually protects the expression of a work, not the ideas contained within. So the board could be copyrighted (although, aside from scoring locations, there’s nothing creative about the board), but not the game itself.

  47. “How do the patrons of Hit&Run feel?”

    M A N Y
    A
    W
    N
    S

  48. well piss it didn’t work

  49. my problem with the suit is that there are SO MANY other ways Hasbro might have gone about this. They could have tried a buyout, a partnership, some kind of licensing agreement, offers to the programmers of Scrabulous to make an exactly identical and exactly legal Hasbro Scrabble app for facebook.

    And what did they choose to do? The legal action will probably cost them more than the buyout, and there’s no money in the app that Hasbro could take. The effect will either be Hasbro’s defeat or the closing of Scrabulous.

    What makes a company like Hasbro so blind to the obvious potential of a light affiliation (or more) with people who’ll publicize their product online, on their own time, for very little money or none at all? This isn’t at all the first time that something like this has happened.

    If Scrabulous is forced to close, a protest movement might simply distribute the source code for the app to everyone. This would mean that thousands of people could “create” their very own app. Within a week, so many varieties of baby-Scrabulouses would have emerged that it would take years to find out who to sue, let alone carry it out.

  50. Money is not property; the concepts are not fungible.

    I’m not saying they are fungible; I am saying that you have the same basic property rights in your money that you have in your other assets.

    The rights one has to each are very similar, but not identical.

    What rights do I have in my other assets that I do not have in my money? And vice versa?

    arguing that digital records of assets are themselves cash is confusing the map with the territory in the very worst way.

    I agree, but that’s not what I am saying.

    I am saying that most money in the world today exists only as a digital record. Just as most intangible assets (stocks, bonds, etc.) exist only as a digital record; practically nobody owns, or transacts, stocks, bonds, etc. in their paper form. Even if they did, the paper document is only a paper record of the underlying asset, which is, by definition, intangible. Duplication of paper is sufficiently low cost that I’m having a hard time saying it isn’t effectively “costless” as well.

    I think the point still stands – the statement that we cannot have property rights in something that can be “costlessly duplicated” raises very serious questions about the legitimacy of intangible assets of all kinds, up to and including the most fungible intangible asset, cash.

    It means that we shouldn’t have fake digital money that’s not even backed up by fake paper money.

    The only way to get around this objection is to require that all transactions be conducted with exchange of actual pieces of metal. I don’t think you could run a modern economy that way.

  51. Get a life Stretch.

    There’s no need to be rude.

    If you make a .pdf of a novel covered by copywright, post it on the internet where anyone can get to it, then sales of the printed version of the novel drop to nearly nothing then you have done serious financial harm to the owner of the copyright.

    Certainly, I don’t claim otherwise.

    The philosophical question is whether or not the owner of the copyright has any “real property right” that leads to an expection of being able to make money by selling copies of a creative work.

    Yes, that’s exactly the question and I would argue that the owner of the copyright does not have a “real property right” but rather has been granted a limited monopoly on the use of his idea. In your example above, of course I’m violating the copyright laws and consequently the author’s monopoly, but the potential harm I’m dealing him is entirely due to the legal structures we’ve built and he relied on, not some unalienable property right.

    Useability is completely irrelevant to the discussion.

    Sure it’s relevant. Under our current system, I am limited in my uses of his material, not only the physical copy of the book, but also in the way in which I can use the actual ideas from his book in conjunction with my own ideas. The ideas exist totally within my own head and yet I must either pay him, be granted an exemption or so distort his words that the law no longer applies.

  52. Hasbro just let the people play a damn game!

  53. FWIW, Scrabulous does have the look and feel of Scrabble, and it’s rules are the same. If they changed it just a bit(different shape board, different placement of scoring bonuses) I believe the creators would have a stronger position, but they basically copied the game. Weren’t there a bunch of lawsuits about Tetris?

    Second, I believe the creators of Scrabulous are making a profit. Maybe not on Facebook, but they have advertising on their website.

  54. On general principle, I side with Scrabble over Scrabulous – this is definitely not fair use.

    But I think Scrabble should be in the public domain by now; my main beef with current copyright/trademark/patent law is we’ve gone too far away from the ‘limited’ in ‘securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’

    Alfred Mosher Butts invented the game in 1931; charitably, you could say he didn’t trademark it until 1948, when it was first called scrabble. Either way, it’s been at least 60 years; providing the trademark protection is not encouraging Hasbro to ‘promote the useful arts’ (which arguably the Agarwalla’s are).

    And Butts died about 5 years ago, which should also terminate the copyright. (you want to ensure your family is cared for in the event of your demise, get life insurance)

  55. As inventor of Splattergories?, Buggle?, and Polopony?, I support my brothers at Scrabulous in their fight against Big Game.

  56. . . . but also in the way in which I can use the actual ideas from his book in conjunction with my own ideas.

    Wrong. Copyright does not cover ideas, never has. You are free to restate someone else’s ideas in your own words, and then claim copyright on your new expression of those ideas.

    Note that this does not cover borrowing characters from someone’s novel and telling a new story unless it is a parody.

  57. I am so tired of people that claim copyright covers ideas when it is patently false.

    Claiming someone else’s ideas as your own is plagiarism, not copyright infringement.

  58. You don’t understand fair use doctrine. So please don’t comment on it.

  59. Hasbro has a deal with Electronic Arts for online versions of its games. The National Scrabble Association (owned by Hasbro) sent out an email earlier this week urging members to sign up at pogo.com (owned by EA), “the first and only online SCRABBLE game officially endorsed by the NSA”. I haven’t tried it, but I’m sure it sucks.

    Scrabulous never appealed to me anyway. The cool geeks play online at isc.ro.

  60. Libertarians are against intellectual property, right? Right??

    http://mises.org/journals/jls/15_2/15_2_1.pdf

  61. I’m siding with Scrabulous.

    1. Copyright terms are FAR too long. There are good reasons to consider a 5 year term (90% of profits are typically in the first 5 to 6 years), the original term was 14 years (in the U.S.), and I could deal with 30 years. Life of the author plus 70 years (for works since 1976) or 95 years (works produced between 1923 and 1976) are both waaaaaaay out of line, and serve only to limit innovation, which is precisely the opposite of the Constitutional justification of granting monopolies to copyright holders.

    2. Copyright covers implementations, not ideas.

    3. The folks at Hasbro have got to be stupid to piss off half a million users who might be willing to pay Hasbro for physical copies of the original game. The online version keeps the concept fresh and current, and will encourage customers to go out and get the original – but this lawsuit will dissuade them from giving money to people who haven’t really done anything to earn it for the past 60 years.

    4. Hasbro might have a point about Trademark law, but they’re still damned stupid not to take advantage of free advertising.

  62. Kolohe wrote:

    …my main beef with current copyright/trademark/patent law is we’ve gone too far away from the ‘limited’ in ‘securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’

    I’m pretty much a rabid constitutionalist, as even a cursory examination of my postings here will immediately show; but I can’t agree with you here. “Limited time” is not synonymous with “short time.”

    Humans only live for a limited time (about a hundred years.) The inquisition only operated for a limited time (800 years.) The dinosaurs only existed for a limited time (millions of years.) The earth has only persisted for a limited time (about 4.5 billion years.) The universe has only persisted for a limited time (about 13 billion years.)

    It is very clear that the word “limited” implies that there are boundaries to a concept, but it is just as clear that there’s no required association of “short” or “small” to those boundaries.

    Consequently — speaking only in the constitutional sense — there’s no basis there to justify an “must be of a short length in relation to the author’s or inventor’s lifespan” interpretation. The intent of the constitution, as written and interpreted as if it was intended to be understood by a reasonably intelligent and literate human being, was that the power to protect ideas for the benefit of authors and inventors (not their heirs, you’ll note) was authorized, and that said power was intended to be used to define the limits in such a way as they saw fit in order to meet those goals. Further — and I really don’t think you can make a sensible argument otherwise — it has done society a great deal of good to formally incentivize invention and the creative paths in general.

    Personally, I think “average human lifespan at the time of publication/release” is the “sweet spot” for quite a few reasons; but I have almost no influence, so what I think doesn’t matter a whole lot. I’d change that position only if the average human lifespan broke 100 years.

  63. Seriously? How is this not the most open-shut case in the world? How is this in any way controversial? They even used the same color scheme. Hasbro, as the trademark holder, has an obligation to aggressively protect that trademark. Writing the Scrableicious team a check might have been the better business decision, but Hasbro has every right to make terrible decisions for itself. Our intellectual property regime might be out of whack, but that’s hardly Hasbro’s fault.

  64. @ Max Hats

    No, actually it is Hasbro’s fault. Hasbro, Disney, et al are very responsible for the current intellectual property regime. Until cases are decided against them, this regime will continue along the current path of ever increasing periods, however ‘limited’ they may be.

    I agree with earlier comments. There are two major premises: (a) Under the letter of the law, this is not an open and shut case for many reasons. (b) From a business point of view, there were and are so many more positive options for Hasbro.

    Finally, from a social perspective, Hasbro and the current IP regime is just dumb. If there is a place in the ecosystem for gigantic corporations, it should be in sponsoring innovation, not stifling it.

Please to post comments

Comments are closed.