Facebook Scrabble Rip-off Capitalizes on Mattel's Lethargy

mlimber writes "The Facebook app Scrabulous was written by two Scrabble-loving brothers in India, has over 700,000 users, brings in about $25,000 per month in advertising revenue, and is in flagrant violation of copyright law. The corporate owners of Scrabble, Hasbro and Mattel, have threatened legal action against the creators and have made deals with Electronic Arts and RealNetworks to release official online versions of the game. But according to an NYTimes article, 'Scrabulous has already brought Scrabble a newfound virtual popularity that none of the game companies could have anticipated,' and according to one consultant to the entertainment industry, 'If you're Hasbro or Mattel, it isn't in your interest to shut this down.' Hasbro's partner RealNetworks is 'working closely' with the piratical brothers, but Mattel says that 'settling with the [brothers] would set a bad precedent' for other board games going online."

Comments

double word score for ...

[Anonymous Coward]

firstpost

Re:double word score for ...

[WwWonka]

firstpost

...and negative karma for grabbing nine tiles out of the bag.

Scrabble cannot be copyrighted.

[Reverend528]

Copyright applies to an expression of an idea, not the idea itself. Scrabble is not an expression.

The image of the board can be copyrighted. The manual can be copyrighted. The logo can be trademarked. But the rules of the game are not subject to copyright.

Re:Scrabble cannot be copyrighted.

[OrochimaruVoldemort]

that is the truth, but if they [Mattel or Hasbro] have enough money, it doesn't really matter. they could just take it as their own.

Re:Scrabble cannot be copyrighted.

[julesh]

Copyright applies to an expression of an idea, not the idea itself. Scrabble is not an expression.

The image of the board can be copyrighted. The manual can be copyrighted. The logo can be trademarked. But the rules of the game are not subject to copyright.

The arrangement of bonus squares could be subject to copyright. Also (although with somewhat less certainty) the selection of available letters could be subject to copyright. Change these, and you'll end up with a game that is somewhat like Scrabble, but which isn't Scrabble and which isn't subject to copyright. As it is, these two aspects of the game seem likely to me to be copyrightable.

Re:Scrabble cannot be copyrighted.

[abigsmurf]

surely game rules can be copyrighted much like the scenario behind movies can be?

Also, the board has the same layout and same points for each piece as scrabble, it's clearly a direct clone of the game.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

The image of the board can be copyrighted. The manual can be copyrighted. The logo can be trademarked. But the rules of the game are not subject to copyright.

Yeah, people are clueless about intellectual property. I dug up the original Reuters article this is referencing, assuming somewhere along the line someone copying it had managed to confuse copyright and trademarks. Sadly, it appears it was the original reporter that screwed up. He says they threatened with regard to copyrights, but all the direct quotes refer to trademarks, brands and "intellectual property." Never once does any spokesperson for Mattel reference copyright directly.

Note, trademarks are probably what are at issue since "Scrabulous" is easily confused with "Scrabble." The authors of the game should have picked something that did not reference the trademarked name.

Re:Scrabble cannot be copyrighted.

[Dachannien]

The text of the rules could be copyrighted, but the ideas behind them could only qualify for patent protection.

In this particular case, Mattel may have reason for a trademark infringement complaint as well.

Re:Scrabble cannot be copyrighted.

[Reverend528]

In this particular case, Mattel may have reason for a trademark infringement complaint as well.

That's pretty much all they have a chance it, which is why it doesn't make sense to me that they would pursue this on a highly-questionable copyright claim. Unless their goal is to expand the scope of copyright.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

The arrangement of bonus squares could be subject to copyright.

I don't think this is true. You could patent the arrangement, but that would have expired by now. You could patent certain images in certain locations, but if, for example, a clone used a different symbol or text to indicate bonus squares I don't think that would be considered copyright infringement.

Also (although with somewhat less certainty) the selection of available letters could be subject to copyright.

Again, I think this would have to be a patent.

Change these, and you'll end up with a game that is somewhat like Scrabble, but which isn't Scrabble and which isn't subject to copyright.

I'm pretty sure copyright is a mistake made by the Reuters reporter. He references copyright, but the Mattel representative says "trademark" and "Scrablous" is pretty confusingly similar to "Scrabble" such that the average person could certainly think the former was made by the same person as the latter.

Re:Scrabble cannot be copyrighted.

[Naughty Bob]

Not to mention the famous 'Batman's belt' case.

Re:Scrabble cannot be copyrighted.

[Naughty Bob]

surely game rules can be copyrighted much like the scenario behind movies can be?

What, all five of them?

Re:Scrabble cannot be copyrighted.

[WK2]

I count seven:

* black (sometimes Asian) cop, white cop
* family man has crisis, family is there for him, or he discovers he doesn't need them
* quest to kill bad guy
* boy learns he has special gift, and then goes to avenge his parents/guardians
* some tragedy strikes a town (such as monster attack), and a small group of people must kill monster, etc, or maybe leave.
* hunted man must escape to freedom and kill his hunters
* some guy must solve a series of obscure puzzles to find treasure/kidnapped girlfriend or family member/save world

There's actually probably a few dozen movie plots. But I'm pretty none of them are copyrightable.

Re:Scrabble cannot be copyrighted.

[kestasjk]

I wrote an implementation of a board game called Diplomacy, so I find that reassuring, but is it actually true?

Re:Scrabble cannot be copyrighted.

[ezberry]

What bothers me about these discussions on Slashdot is that 99% of the time, it's people that aren't lawyers, and don't really have a sense of what the law actually is.

"I feel that the law is this way" really isn't a valid argument. Can either the parent or the GP point to some precedent - legislation, caselaw or anything to support their positions (no, not Wikipedia)? What jurisdiction would this be filed in? Is there any jurisdiction that would support Mattel or Hasbro's position? If so, I'm pretty sure minimum contacts would be satisfied there. These are all important questions before you can start to argue abstractly on law you don't know about.

Re:Scrabble cannot be copyrighted.

[Actually, I do RTFA]

The image of the board can be copyrighted.

And those two brothers copied the board, right down to the colors for the various square types.

Re:Scrabble cannot be copyrighted.

[iamhassi]

"Yeah they're so dumb that they're... making lots of money....Seems like it's you who isn't bright."

Yeah, drug dealers make a lot of money and look where they end up? Still think they're bright?

They stole the game and put it online. Why are people defending them? They pirated the game: when people rip movies and put them online and sell them for $25,000/mo and the FBI raids their home does anyone on /. say "Hey that's not right! They were only stealing money from the creators!"

I hope Hasbro sues them for every dime they've made. You can't just rip-off popular board games and cry foul when the owners bitch. How stupid is that? Anyone want to make a online Monopoly... er, I mean "Monopolious"... and cry then Parker Brothers sues? It'd be total anarchy if Hasbro let's these guys continue. Hell if they somehow get away with this I'm making Starcraft Universe (WoW clone) and I'm gonna be a millionaire!

Re:Scrabble cannot be copyrighted.

[Dogtanian]

Not the brightest rip-off artists in the book. Yeah they're so dumb that they're... making lots of money. If they hadn't used the name 'Scrabble', it wouldn't have been as popular, and they wouldn't have made as much money. Seems like it's you who isn't bright. Making money means nothing if they have to give it all to Mattel in damages. OTOH, if they'd played safe and skirted around the various IP laws, they might have made less money in the first place, but Mattel couldn't have sued them as easily.

OTOH, they could be clever, convince Mattel that it's in their interest to let them continue, and still come out with more than they would have by playing it safe. (Perhaps they even planned that in the first place... perhaps not, who knows?) But it's certainly not as simplistic, nor as risk free as you make out.

Re:Scrabble cannot be copyrighted.

[tepples]

surely game rules can be copyrighted much like the scenario behind movies can be? Board games and movie plots can be patented, but those expire 20 years after the inventor files the patent application.

Re:Scrabble cannot be copyrighted.

[rtb61]

In this case it has a whole lot less to do with Hasbro and much more to do with EA. EA have spent a huge amount of money to gain access to the Hasbro game licences, which in turn has pretty much swallowed up pretty much every other game board manufacturer from the past.

They are expecting to make huge amounts of money from those old fashioned games, unfortunately reality is setting and and old fashioned board games, are really just bored games, games people play when they are truly bored but have absolutely no desire to pay for them ie. once a request for payment is made, people just shift to another free web based game.

So as it turns out the oldest board games that managed to survive have also mostly lost or are about to lose their copyright protection and of course there a very of those that even marginally succeed. Most of the titles only get the odd free nostalgia play and EA is already starting to feel the bite of money going out and very little returns and is forcing the issue via Hasbro.

Re:Scrabble cannot be copyrighted.

[asc99c]

Remember Scrabble is old enough now that everything has fallen into public domain, with the exception of the name which is trademarked and does expire unless it stops being used. I'm not sure of copyright lengths in India but I'd be surprised if its longer than 70 years. I'd have thought all that can be done is to stop them using the name Scrabulous. For your Starcraft example the game and the content are all copyright protected. The name is trademarked but that is the only similarity.

Re:Scrabble cannot be copyrighted.

[TekPolitik]

I don't think this is true [that the arrangement of squares is protected by copyright] You could patent the arrangement, but that would have expired by now.

While the arrangement of squares is not strictly protected by copyright in itself, the entire image of the game board is protected by copyright as an image. That protection extends to derivative works. Any board that used the same layout would be a derivative work infringing on that image. So while it is technically true to say the arrangement of squares is not protected, the net effect of the law is you cannot use the same arrangement without infringing copyright.

Re:Scrabble cannot be copyrighted.

[hey!]

That's silly.

You have to be lawyer to give legal advice of course, but saying you always have to be a lawyer to have an opinion about what is legal implies that the law is nothing more or less than state coercion.

The important thing about the law is that it divides what a person can do from what he can't. If an educated person of average intelligence can't tell what is legal or illegal, then he can't give voluntary consent to the law. He might not grasp the subtleties and implications of various aspects of contract law; but he should be able to have an informed grasp of something like the distinction between copyrights and patents.

He certainly should be able to have an opinion about what the law should be.

This is certainly an intriguing situation. Logically, the GP is correct; scrabble is a system. But clearly game systems are kinds of works that have been habitually accorded copyright protection. The problem is that there isn't a clear, logically unambiguous boundary between categories of things like systems and forms of expression. The law makes decisions as if there were precise boundaries, even though they don't exist. It has to because we expect it to. That's why you need a lawyer. Over time the law's line becomes more and more precise, but the underlying distinction doesn't change at all. In truth when you look at cases adjacent to a well established line but on opposite sides, the distinction between them is bound to be arbitrary. That's also why lawyers always qualify their advice in terms of probable outcomes; if they were on the other side of the case they could argue the other way; and there's no telling whether a clever opponent will manage to frame the case in a way that nudges it one way or the other if it is close.

This is certainly one of those cases where assigning the work to the realm of invention or expression is arbitrary. The state of case law may be such that an IP lawyer could tell you with confidence which side of the line this falls on. However an equally competent lawyer, working in a parallel universe with a chain of case law that is equally justifiable, might give you an opposite answer. In fact, that happens all the time with lawyers working in different jurisdictions.

And therefore non-professionals are entitled to their opinion. If they plan on marketing such a game, they'd be well advised to consult a lawyer, but not to tell them anything about expression or invention they don't already know.

Re:Scrabble cannot be copyrighted.

[Anonymous Coward]

You must be new here...

Re:Scrabble cannot be copyrighted.

[pclminion]

"Hey that's not right! They were only stealing money from the creators!"

The creator of Scrabble is dead. At this point it is only "stealing" from a large corporation whose only concern is money making. Is it legal? No. But I consider it quite a bit less ethically broken than if Mr. Butts (yes, that's his name) was still alive and actively profiting from his creation.

Re:Scrabble cannot be copyrighted.

[mdwh2]

In that case, the burden is on the submitter of the story to cite legal precedents (no, not Wikipedia) that show that the rules of Scrabble are subject to copyright.

Re:Scrabble cannot be copyrighted.

[mdwh2]

I agree, although note also that the name can be trademarked, which I imagine is the area most likely to be an issue in this case.

Re:Scrabble cannot be copyrighted.

[Anonymous Coward]

Yeah, but your GP isn't saying he shouldn't "be able to have an opinion about what the law should be" but that "the law is this because I think it's that way" is NOT valid reasoning. That's like me saying "I think the law says if I fart on tuesday I get whatever the wind touches, so thus, I don't see the problem with copyright infringement."

The guy is just pissed that idiots come on Slashdot and say "nope, the law says you can patent arguments, but this other stuff needs to be copyrighted. Keep in mind I'm talking out of my ass" with no support, no logic, nothing to back up their "this is how the law is I think" other than some random thought that popped into their head.

Yeah, any asshat CAN post uninformed opinions on Slashdot, he's just saying maybe they shouldn't, or maybe they should try to look into a subject before just being wrong.

GGP didn't have an opinion on what the law should be, which is subjective, but he had an "opinion" on what the factual, objective state of what the law was. That's not an opinion, that's a mistaken belief.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

Yeah, drug dealers make a lot of money and look where they end up? Still think they're bright?

You mean living in a nicer house than mine?

They stole the game and put it online.

They didn't steal anything. They copied something, an idea, that someone else came up with. That is normal. We all build upon the works of those before us. Star Wars used plot lines copied from westerns who, in turn, had copied them from samurai books. Each built upon the last and added something of their own as well. No one, not even Mattel, is alleging anyone stole anything. What Mattel is claiming is that the name "Scrabulous" is too close to their name "Scrabble" and thus people will think it was made by Mattel. Thus, Mattel will probably get a court order for the name to be changed.

Why are people defending them?

Many people feel intellectual property laws as they are currently enacted are unfair.

They pirated the game

Yeah and you raped the dictionary. Transposing words with a high negativity index in order to try to capitalize on people's emotion is a time tested marketing trick. It is also a logical fallacy, appeal to emotion and conflation.

when people rip movies and put them online and sell them for $25,000/mo and the FBI raids their home does anyone on /. say "Hey that's not right!

Yes. Especially when they are movies so old that the copyright has expired and all the original creators are long since dead.

...hey were only stealing money from the creators!"

Alfred Butts? The dead guy? He's been dead for 20 years and the person he sold the rights to has been dead longer. You can't take it with you man.

I hope Hasbro sues them for every dime they've made.

Mattel, not Hasbro. I guess if you don't know that Mattel sells Scrabble overseas and owns the rights, maybe a similar name isn't tarnishing their brand, but that of their biggest competitor.

You can't just rip-off popular board games and cry foul when the owners bitch.

Lots of people own Scrabble games and this deprives them of nothing. As for intellectual property, copyright and patents have both expired and entered the public domain. The only intellectual property that applies is trademark, as in not confusing people into thinking one company made something when someone else did.

Anyone want to make a online Monopoly... er, I mean "Monopolious"... and cry then Parker Brothers sues?

The only problem I see with that is the name, if you confuse people into thinking Parker Bros. made it.

It'd be total anarchy if Hasbro let's these guys continue.

Yah I'm sure all of society would break down and it would start raining donkey feces. That's called appeal to consequences; yet another argument demonstrated to be a logical fallacy more than a thousand years ago.

Hell if they somehow get away with this I'm making Starcraft Universe (WoW clone) and I'm gonna be a millionaire!

Go for it, but you'll have to wait longer than the 70 years it took for the copyright on Scrabble to expire, I hope you live longer than 100 years.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

What bothers me about these discussions on Slashdot is that 99% of the time, it's people that aren't lawyers, and don't really have a sense of what the law actually is.

Actually I had already linked to this page which is the U.S. office of copyright's page for guidelines on copyrighting games. It specifically excludes the items I mentioned and since trademark does not apply to such items, patent is all that is left.

"I feel that the law is this way" really isn't a valid argument.

You're correct, excepting the fact that your statement is a straw man, since neither I nor the other poster claimed we felt anything, only what we thought.

Can either the parent or the GP point to some precedent - legislation, caselaw or anything to support their positions

Strangely I don't have a legal library handy. I did, however, cite public documents published by the government.

What jurisdiction would this be filed in?

Likely India for ease of getting damages.

Is there any jurisdiction that would support Mattel or Hasbro's position?

And what position, exactly, is that? Mattel, who has standing in this, has only talked about trademarks. Lots of jurisdictions will support their rights in that regard and they probably have a pretty slam-dunk case with Scrabble and Scrabulous being so similar.

These are all important questions before you can start to argue abstractly on law you don't know about.

You don't have to be an expert on intellectual property laws to have a reasonable handle on them, given that they are fairly uniform in most of the world. That applies double in a simple case like this.

Re:Scrabble cannot be copyrighted.

[cpt kangarooski]

No, you've got it backwards. The law prioritizes preserving the public domain status of noncopyrightable elements over whatever else might be copyrightable; thus, whatever copyright there could be on the board artwork, it doesn't cover the arrangement of the squares on the playing field. And if you cannot separate the two, then it would all be uncopyrightable. Copyright is never allowed to cover uncopyrightable material.

Re:Scrabble cannot be copyrighted.

[dissy]

Note, trademarks are probably what are at issue since "Scrabulous" is easily confused with "Scrabble." The authors of the game should have picked something that did not reference the trademarked name. You are probably right, since this has been ongoing for awhile over the trademark issue.

Same reason yahoo calls their version of the game Literati, despite being identical to scrabble in every other way.

Re:Scrabble cannot be copyrighted.

[thelegality]

Scrabble can be, and has been Copyrighted. A colleague of mine, Steve Glista, wrote a detailed and insightful piece about exactly that. Check it out: http://www.thelegality.com/archives/11

Re:Scrabble cannot be copyrighted.

[TekPolitik]

No, you've got it backwards. The law prioritizes preserving the public domain status of noncopyrightable elements over whatever else might be copyrightable;....

No, the law protects the substance of the original expression in the work. The layout is part of the substantial expression. This is not like a telephone book case where there has merely been a methodical collection of information from the public domain. All of the expression in the layout originated with the prospective plaintiffs. It is part of the substance of the expression in the image.

I am a lawyer too.

.

Re:Scrabble cannot be copyrighted.

[cpt kangarooski]

Remember the merger doctrine? Where the expression and idea are merged such that affording protection to the expression would in effect confer protection to the underlying idea, neither is protected. Anything unoriginal may be copied. Remember how facts and other noncopyrightable elements can be plucked from any source whatsoever? The same applies here. And there are some other, similar doctrines, e.g. roman à clefs.

A graphic work may be protectable, but the nonprotectable elements that appear within it are not, and may be copied freely.

In the case of a scrabble board, we have: A board which is 15 by 15 squares. This is defined by the uncopyrightable rules of the game, and may be copied. Some squares, in certain locations, have special attributes (e.g. double word score). This is defined by the rules, and so the attributes and locations of these squares may be copied. Designating these squares by some means is an idea, and is uncopyrightable. A specific means for doing so may be copyrightable, if sufficiently creative. Coloring the special squares doesn't seem particularly creative to me. While the choice of colors -- red and blue -- may be creative, the use of different shades of those colors likely is not, where the attributes are related (e.g. double letter is a shade of double word). Also, where we're looking at a mere three colors (the board, and the two base shades), it seems likely that merger would apply, since there's a very finite number of basic possibilities, especially where extrinsic factors that limit creativity come into play, such as what color combinations look good to the average player.

Finally, there is the utility doctrine. Where a graphic work is useful, and where that use is inseparable from its appearance, there is no copyright. Here, we have a totally functional game board meant for playing a game on, aligning tiles, indicating the scores of words or letters placed at certain spots, etc.. It is highly utilitarian, and lacks separable ornamental features. This would likely be yet another reason to deny copyrightability on the game board art. Cf. with other games, such as Candyland, which has a very decorative board that has many non-useful features.

I don't dispute that you are a lawyer, but there is more to copyright law than most people outside the field realize sometimes.

Re:Scrabble cannot be copyrighted.

[1u3hr]

The image of the board can be copyrighted. The manual can be copyrighted. The logo can be trademarked. But the rules of the game are not subject to copyright. I doubt the board itself can be copyrighted. A square grid is not art, and copyright is supposed to protect works of art and creativity. Even if it could, a functionally identical version (different colours and fonts, maybe change a few words "triple word" -> "treble word", etc.) would not be covered. Basically, as long as you recreate it, not just duplicate, you would be safe. Except you would still have to spend a fortune in court to fight the case to defend yourself, of course. Big companies can CLAIM copyright and make your life hell for years regardless of the merit of their case.

Re:Scrabble cannot be copyrighted.

[1u3hr]

While the arrangement of squares is not strictly protected by copyright in itself, the entire image of the game board is protected by copyright as an image. That protection extends to derivative works. Any board that used the same layout would be a derivative work infringing on that image

Rubbish. Under this "rule" every game that used a square grid would be a "derivative" of another game (Chess, checkers, etc). But many of these games are thousands of years old. So out of copyright, even in the US under its Mickey Mouse copyright laws.

Only a duplicate of the board could be considered a copyright violation. Just redrawing it, different colours and fonts (and omitting the trademarked logo), would avoid any infringement.

Re:Scrabble cannot be copyrighted.

[1u3hr]

Scrabble can be, and has been Copyrighted. A colleague of mine, Steve Glista, wrote a detailed and insightful piece about exactly that

No he didn't. RTFA. He says:

"If Hasbro eventually files a lawsuit but claims only copyright infringement, it might just lose the case. A trademark dilution claim will surely score a bingo,"

Though earlier versions of Scrabulous may inded have violated copyright, (by duplicating various graphic elements) current ones have been sanitised. And the simple fact that this is an online game, not a real board game in a cardboard box, is enough to make it fundamentally different in its rules, whci are the only other thing taht might be copyrightable.

As he says, trademark is the real issue. The game itself is clear, aside from the branding.

Re:Scrabble cannot be copyrighted.

[ezberry]

Intellectual property laws are not uniform around the world. That was one of the "I feel that the law is this way" arguments. You might wonder "where does this guy get off saying all this?" I'm a lawyer.

It's not patent law, as you claim. A patent would have expired years ago. Also, Scrabble was denied a patent by the PTO. I don't know what copyrights are claimed, but there are several claims that could be raised, including the look of the board as an artistic expression. The Scrabulous board uses the same colors and pieces as Scrabble. Clearly there are a number of trademark issues. It's not clear why you brushed those claims aside, maybe you don't know the law and you just felt that it was a certain way? Is Scrabulous too similar to Scrabble? Maybe. Is the use of the word Scrab in conjunction with a crossword game a trademark violation - probably.

Mattel and Hasbro's position, obviously, is that there is a violation of their intellectual property in one form or another. They will raise both copyright and trademark claims. But you're sorely mistaken if you think their primary goal is to disgorge the makers of Scrabulous of the ~$300,000 per year that they make off the game. They sell 1 to 2 million Scrabble boards per year. They want it taken offline, and they don't need to sue in India for that. Different circuits in the US have different bodies of law. Mattel and Hasbro will have their pick of the one with precedent most supportive of their claims. The Scrabulous makers will likely not have many grounds for removal.

Your rebuttal, however, really proved my original point. Every claim you made was wrong - and that didn't stop you from saying it as though you had some authority.

Re:Scrabble cannot be copyrighted.

[rizole]

This is /. so I can't pass up the opportunity to point out the one we are all familiar with: *Midget girl in lingerie meets hung stud and they go on to have involved, energetic snu snu.

Re:Scrabble cannot be copyrighted.

[Rosy At Random]

Damned italics; I wondered what you meant by "This is I." for a second there...

Re:Scrabble cannot be copyrighted.

[jollyreaper]

* black (sometimes Asian) cop, white cop
* family man has crisis, family is there for him, or he discovers he doesn't need them
* quest to kill bad guy
* boy learns he has special gift, and then goes to avenge his parents/guardians
* some tragedy strikes a town (such as monster attack), and a small group of people must kill monster, etc, or maybe leave.
* hunted man must escape to freedom and kill his hunters
* some guy must solve a series of obscure puzzles to find treasure/kidnapped girlfriend or family member/save world * Teen "sex" comedies where there's only gross-out humor and maybe a few seconds of tittie to earn the R rating. Would have been more entertaining to simply watch porno instead.
* Big special effects and explosions so large you can't even remember what the mcguffin was
* Black guy as moron comedy (recent spate of movies with black family man being the butt of humor)
* Eddie Murphy playing every character in a movie except the compelling one

Re:Scrabble cannot be copyrighted.

[reebmmm]

Well, IAAAL (I am also a laywer), and I'll throw my hat into the ring too and say that the merger doctrine makes a Scrabble board unprotectable. At best, you've misconstrued the idea to fit what you want it.

Merger doctrine is usually explained as, "when the idea and the expression are inseparable then preventing another from copying the expression would monopolize the idea." Here its not clear that the "idea" is the board.

In this case, the idea is arguably "a crossword board game with special scoring squares and valued pieces." There are LOTS of different boards one could create. The Scrabble version is just one of many possible combinations of squares and dimensions. Thus, there would not be a monopoly on the idea, only the particular expression of that idea.

Moreover, the fact that the rules in the abstract are not protectable (though, again a particular expression of those rulse like the written instructions or directions might be) does not make the board any less protected. At worst, the board then is a derivative work of a particular set of rules governing a particular conception of the idea mentioned above. The merger doctrine does not make a work unprotectable because its based on an idea: every expression is based on an idea.

I do think that you have a better argument with the utility doctrine, but that wouldn't get you to the more arbitrary elements of board design. So, I wouldn't want to hang my hat on that argument.

Re:Scrabble cannot be copyrighted.

[reebmmm]

Well, IAAAL (I am also a laywer), and I'll throw my hat into the ring too and say that the merger doctrine DOES NOT MAKE a Scrabble board unprotectable. At best, you've misconstrued the idea to fit what you want it.

Big ol' typo.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

Intellectual property laws are not uniform around the world.

I did not say they were. I said they are fairly uniform. For the most part Berne signatories have very similar laws, with a few discrepancies with regard to terms and reference copies.

That was one of the "I feel that the law is this way" arguments.

A comment about how people feel is an appeal to emotion. That is completely different from someone expressing what they think, which is simply an opinion. By using the word "feel" you misrepresent what was presented in earlier posts. As a lawyer surely you understand the need for precision in writing to avoid such misrepresentation.

You might wonder "where does this guy get off saying all this?" I'm a lawyer.

This is called, appeal to authority. That is basically you are claiming to be an authority on the subject, which is fine, but does not make your arguments any more correct.

It's not patent law, as you claim. A patent would have expired years ago.

Statements like this make me wonder why I bother replying to you. Go reread my posts. I said certain parts of the game would have been protected by patents, since copyright specifically does not apply to those elements. Then I mention that the patents would be expired by now and the only IP law that would still apply would be trademarks, which I then go on to provide a short explanation of what that covers.

Also, Scrabble was denied a patent by the PTO.

They may have been denied any number of patents, but they were also granted U.S. Patent, No. 2,752,158. The reason that is not a real concern is because it expired in the early 70s.

I don't know what copyrights are claimed, but there are several claims that could be raised, including the look of the board as an artistic expression.

This is untrue. The copyrights on the rules and board were granted in 1938, meaning they had no chance to extend them before they expired.

Clearly there are a number of trademark issues.

As I previously stated, this is the only IP that still applies. As far as I know there is only one trademark that has any bearing, that being on the name "Scrabble" and Scrabulous is fairly clearly a portmanteau combining the words "scrabble" and "fabulous."

It's not clear why you brushed those claims aside, maybe you don't know the law and you just felt that it was a certain way?

This is called a straw man argument. You claim that maybe I was influenced by my emotions, although there is no evidence that is the case. You'd think a lawyer would have studied rhetoric enough to avoid such obvious fallacies. I explained why patents and copyright don't apply (since both are expired). I specifically stated that trademark still does apply.

Is Scrabulous too similar to Scrabble? Maybe. Is the use of the word Scrab in conjunction with a crossword game a trademark violation - probably.

It is almost certainly a violation. I'd like to point out "scrab" is not a word. It is a partial word combined with part of another word. Given that the word "scrabble" is not commonly applied to board games in general, I don't think there is much question about whether this is a violation.

Mattel and Hasbro's position, obviously, is that there is a violation of their intellectual property in one form or another.

If you read the original quotes from Mattel (who is the only party to mention legal action) they specifically say "intellectual property," "brand," and "trademark." The mention of copyright was mentioned only by the reporter, who likely confused what IP applied.

They will raise both copyright and trademark claims.

I don't think so. Copyright expired on this as it was granted before the 40s.

But you're sorely mistaken if

Re:Scrabble cannot be copyrighted.

[TheoMurpse]

That's what I just came in here to post. here is the Copyright Office on copyrighting games. Namely, they can't really be copyrighted (except for literary or artistic elements that accompany it, such as a board with specific color patterns).

Re:Scrabble cannot be copyrighted.

[cpt kangarooski]

There are LOTS of different boards one could create.

The problem is that the Scrabble board isn't very creative. It is extremely stripped down, and there aren't many boards one could create that are simple and straightforward.

This is particularly so, since the rules (and scenes à faire doctrine; I misspoke earlier when I said roman à clef) sharply limit the creative choices available. The rules dictate a 15x15 grid, so that's not a creative choice. The game is a crossword game, and convention has a grid of squares, so a grid of squares and square tiles are not creative choices. The rules dictate a specific arrangement and number of special scoring squares, so that's not a creative choice. The Scrabulous board has no text written on it, so that wasn't copied and isn't at issue. Ditto for the more creative elements on the perimeter of the Scrabble board. The colors are all you've got to make a case with! And even there, the argument for using some basic colors and shades of those colors is a good one, so all you're left with is the choice to use red and blue!

I would not want to have to make the plaintiff's argument.

At worst, the board then is a derivative work of a particular set of rules governing a particular conception of the idea mentioned above. The merger doctrine does not make a work unprotectable because its based on an idea: every expression is based on an idea.

The board is an expression of some of the rules. The size of the grid expresses the 15x15 rule. The placement of scoring squares expresses the rule regarding their placement. There's no way you can say that they haven't merged with the rule.

Re:Scrabble cannot be copyrighted.

[TheoMurpse]

Surely if you really are a lawyer . . . you had to take [a] course[] in . . . latin.

Why would a lawyer have to take a Latin class? I'm in law school, and I've never heard of such a thing. I'd have loved to, but holy crap, I can't imagine how many people in my class would fail out of law school if that were true (hello, Big Law!). There are very few linguaphiles I know at my school.

Re:Scrabble cannot be copyrighted.

[TheoMurpse]

You forgot

* everything else

Re:Scrabble cannot be copyrighted.

[TheoMurpse]

Remember Scrabble is old enough now that everything has fallen into public domain

No it's not. It was invented only 70 years ago!

I'm not sure of copyright lengths in India but I'd be surprised if its longer than 70 years.

It's actually death+60 in India. The works-for-hire/anon/pseudonym/public-works/govt-works is creation+60.

Alfred Mosher Butts invented Scrabble in 1938. He was an individual creating the work. He died in 1993. Thus, if my limited understanding of Indian copyright law is accurate, then under Indian law any Scrabble copyright (if there are any) would not enter the public domain until Jan 1, 2054.

Now, even if India uses the rule of the shorter term, it wouldn't enter public domain under US law until death+70, or some time in 2063.

Re:Scrabble cannot be copyrighted.

[TheoMurpse]

They pirated the game

Yeah and you raped the dictionary. Transposing words with a high negativity index in order to try to capitalize on people's emotion is a time tested marketing trick. It is also a logical fallacy, appeal to emotion and conflation.

I've said it once, and I'll say it again, "piracy" has been used to describe copyright infringement since the 1700s. I can't find the source off hand, but either Learned Hand or Holmes (two incredibly famous and important judges in US history) referred to copyright infringement as "piracy" in at least on opinion in the very early 20th century.

Re:Scrabble cannot be copyrighted.

[99BottlesOfBeerInMyF]

Why would a lawyer have to take a Latin class?

To understand all the latin words and phrases used throughout legal documents. Ad valorem, adjournment sine die, affidavit, pro bono, pro hac vice, supersedeas, etc. etc. Are you telling me pre-law programs aren't requiring at least a year of latin? Heck, I thought most pharmacists and pre-med students still had to take it.

I realize the days where everyone had to take latin and greek are long past, but I did not realize how sad things have gotten.

Re:Scrabble cannot be copyrighted.

[TheoMurpse]

To understand all the latin words and phrases used throughout legal documents. Ad valorem, adjournment sine die, affidavit, pro bono, pro hac vice, supersedeas, etc. etc. Are you telling me pre-law programs aren't requiring at least a year of latin? Heck, I thought most pharmacists and pre-med students still had to take it.

I realize the days where everyone had to take latin and greek are long past, but I did not realize how sad things have gotten.

#1 - I don't know what country you're from, but there's no such thing as a pre-law program in the USA as far as I know. It's nothing like medical school. In the USA, "pre-law" means "I plan to go to law school after I graduate with whatever degree I will receive." For example, I have a BS in abstract math and a BA in Japanese, and now I'm in a top law school without having ever heard of a "pre-law" program. In the US, when an undergrad says, "I'm pre-law," what they mean is, "I'm planning to take the LSAT and hope that I can get into law school because my BA in Philosophy won't get me the big dollars."

#2 - You don't need to learn Latin grammar and syntax to know what those mean. That's like being ZOMG SHOCKED that law students don't have to take French (we use words like tort and voir dire all over the place). The legal terms you mentioned might as well just be ten-dollar English words for all we care; you don't have to speak or write or read Latin anymore. In fact, it's frowned upon by my law school. My Federal Civil Procedure professor (one of the nation's foremost experts on Civ Pro) even banned us from using Latin Terms for the first half of the semester. We couldn't even use phrases like "in rem" in the class without her permission because the legal world is recognizing that using too much Latin in English documents is ridiculous.

Have you even studied law? You make two ridiculous assertions (that there is a pre-law program to go to law school, and that a working knowledge of Latin is required to understand the hundred-or-so legal terms that appear in the legal world).

Uh, Flagrant Violation of What?

[spun]

You can't copyright the rules to a game, sorry. Trademark violation, maybe.

Re:Uh, Flagrant Violation of What?

[Chris Burke]

You can copyright a piece of visual art -- even if it's what you'd call "graphic design" -- and assuming the board of Scrabulous looks just like the real game board, then it very well could be a copyright violation.

Re:Uh, Flagrant Violation of What?

[langelgjm]

Trademark violation, maybe.

Right. Microsoft sued about the name "Lindows" as a trademark violation, not copyright. They didn't win, but they did settle, and it's not called Lindows anymore. "Scrabulous" is clearly making a reference to the Scrabble trademark, and is profiting from that reference. There are probably other issues, as people have mentioned, about gameplay (the layout of the board), but I think the thing with the name has got to be about trademark.

Re:Uh, Flagrant Violation of What?

[palegray.net]

While the basic premise of your post stands, let's look at the core concepts as they apply to the issue at hand. To start with, let's examine a couple of images:

1. Scrabulous screenshot

2. Scrabble board (photo)

Okay, they look pretty similar, right? Here's the thing, though: they're not identical. Let's consider clones of popular video games: Supertux vs. Super Mario Brothers, Jazz Jackrabbit vs. Sonic the Hedgehog, etc. They're similar in appearance and follow the same rulesets, but do they represent copyright violations?

Re:Uh, Flagrant Violation of What?

[Eythian]

There's 26 different letters there, plus a blank. That's what's copyrighted :)

Re:Uh, Flagrant Violation of What?

[Chris Burke]

Well Supertux and Jazz don't actually look anything like Mario and Sonic, and the levels themselves don't look much alike either (supertux does have some resemblance to mario levels).

As to the boards in question, there may be enough resemblance there for a copyright suit. The pattern and colors are obviously directly taken from the Scrabble board. There's an argument to be made there.

However, as another poster discovered from the original article, the references made are all regarding trademark, which is a much clearer case since regardless of whether the board is copied, it is clearly supposed to be thought of as the Scrabble board as is the name "Scrabulous". So Matel may just be going after that, and not worrying about the copyright issue at all.

Re:Uh, Flagrant Violation of What?

[The One and Only]

You can't copyright the rules to a game, sorry. Trademark violation, maybe.

Well, you can copyright the rules, if you talk about the rules as a text document. But someone could write different, logically equivalent rules without infringing copyright.

Re:Uh, Flagrant Violation of What?

[PitaBred]

Do you know WHY Microsoft settled? It was looking dangerously close that they would lose Windows as a trademark entirely because of how generic it is, so they settled to make sure it didn't go to court. At least that's what I've heard speculated most reliably... I don't think the actual details were released.

Which means that if you're trying to draw parallels here, Mattel is in for a world of hurt.

Re:Uh, Flagrant Violation of What?

[langelgjm]

Do you know WHY Microsoft settled? It was looking dangerously close that they would lose Windows as a trademark entirely because of how generic it is, so they settled to make sure it didn't go to court.

Yes, I've heard the same thing, and Wikipedia agrees. However, the facts of this case are different. "Scrabble" is hardly a generic term (the word exists on its own in English, but it's nowhere near as common as "windows").

Re:Uh, Flagrant Violation of What?

[Dogtanian]

Do you know WHY Microsoft settled? It was looking dangerously close that they would lose Windows as a trademark entirely because of how generic it is, so they settled to make sure it didn't go to court. This is interesting; there's a potential game of strategy here. Lindows could have told MS to piss off because they reckoned it at best (for MS) it wouldn't have stood up in court and at worst it would have actually damaged MS as you suggest.

Had MS actually gone ahead with the threatened court case, I wonder whether they'd then have been able to pull out or demand some form of settlement (even if this involved *giving* money to Lindows) before any damaging judgement. Or whether Lindows would actually have been able to force MS to see through what they'd started. (Reminds me a bit of "The Merchant of Venice").

If Lindows were in a position to freely refuse *or* accept any settlement by MS (regardless of how reasonable or unreasonable it was), they'd be able to effectively blackmail them for vast amounts ("Give us lots of money or we'll refuse your settlement and you'll lose your trademark!").

Of course, MS's lawyers are almost certainly too clever to get anywhere near a trap like that. Plus, there may be other tactics that they could use against Lindows (legal attrition, etc). Anyway, IANAL- just speculating for fun here.

Re:Uh, Flagrant Violation of What?

[TheRaven64]

I implemented a scrabble game in PHP a few years ago but I called mine after the version in the Discworld series and altered the rules so that blanks could be a different letter in each orientation (not intentionally, I was just too lazy to implement the real rule). It was some really ugly code though, and I've been meaning to tidy it up and release it for about five years. I guess I won't bother now...

Re:Uh, Flagrant Violation of What?

[VGPowerlord]

That's an interesting theory.

However, in the United States, I don't believe that Microsoft has a trademark on Windows, only on Microsoft Windows. As I recall, the term "windows" was considered too generic...

That doesn't apply to other countries, though...

Re:Uh, Flagrant Violation of What?

[mdwh2]

However, the facts of this case are different. "Scrabble" is hardly a generic term (the word exists on its own in English, but it's nowhere near as common as "windows").

I agree the facts are different, but not quite for that reason. Generic names can be trademarked if used in a different context to their generic meaning (e.g., Apple). I believe the problem was that "window" already had a meaning in the context of computing - it's that meaning which was important, not the generic meaning (well, that's what Wikipedia says too).

Re:Uh, Flagrant Violation of What?

[cpt kangarooski]

Actually, I disagree. I suspect that SCRABBLE, while an arbitrary mark originally, has become generic over time.

The key is this: a trademark is only protected so long as it remains distinctive. This means that in the public eye, goods that the mark is applied to must be seen to come from a common source, whether or not that source is actually known, as opposed to goods not so marked, even if they are identical.

For example, if I have two bottles of absolutely pure water, and one is marked as FOO, and the other is marked as BAR, a consumer can prefer one brand over the other, and rely on bottles with one mark to come from one source. If the Bar company starts shipping water with the FOO mark, then that's trademark infringement, since they're confusing customers as to where a FOO-marked bottle comes from.

But if I just had a bottle labeled WATER, then that doesn't work as a mark, since it describes the product itself, rather than the source of the product. Anyone can use marks that describe _what_ a good is, but the only protectable marks are the ones that serve to indicate _where_ a good originates from. You don't have to say specifically who the originator is (e.g. the name of the bottler or water source), just so long as the customer can expect all similarly-marked goods to have a common origin.

The problem with SCRABBLE is that I think that in the mind of the public, SCRABBLE describes the game itself. If this can be shown -- typically through survey evidence -- then the mark is generic and not protectable. It's only protectable if the public thinks that a game with the SCRABBLE mark attached is actually a SCRABBLE-brand crossword game, as opposed to some other brand of identical game.

It's just a hunch, but I bet most people think that the game in question is called SCRABBLE, no matter who makes it, just like chess is chess, and checkers is checkers. I think it's a generic name. This is always the danger with successful trademarks; too much success can result in the public overassociating the good and the mark, and that kills the mark. Examples: THERMOS, ELEVATOR, ESCALATOR, TRAMPOLINE, etc. KLEENEX and XEROX are always right on the edge, and SANKA was for a while too (until the generic term 'decaf' became more popular).

Re:Uh, Flagrant Violation of What?

[watzinaneihm]

Well if this is being litigated in India, it is bound to be much more trouble for Mattel
Indian courts can (and sometimes do) make the loser pay. On the other hand if Mattel wins, they are most likely to get a very limited amount (Indian courts have rarely made individuals go bankrupt).

Re:Uh, Flagrant Violation of What?

[KDR_11k]

I don't think Jazz Jackrabbit has much in common with Sonic the Hedgehog, there are those booster tubes but the fact that Jack uses a gun instead of jumping to attack completely changes the game dynamic to the point where the average player won't see much of a connection between them.

Re:Uh, Flagrant Violation of What?

[neomunk]

That's the first thing I thought of too, and the thought took the form of a drug name: acetylsalicylic acid. Bayer had (has) a popular brand of acetylsalicylic acid, with the trade name of Aspirin. The still sell acetylsalicylic acid (that's fun to type) under the name Aspirin, but now so do many other companies.

Not being a lawyer, I have only the barest glimmer of how a company would go about losing a trademark like that, but I would surmise that Scrabble has broken the generic barrier. You mention survey evidence, is that actually a benchmark the courts would use to determine the protectability of the trademark? I would figure the vast majority of people being shown a trademark-removed generic layout of such a crossword game would automatically associate the word 'scrabble' as the descriptive name for this type of game. Likewise with the monopoly on Monopoly. (teehee)

Re:Uh, Flagrant Violation of What?

[cpt kangarooski]

Well, I'd want to look it up to be certain, but I suspect that the ASPRIN mark (and the HEROIN mark, also one of Bayer's) were caught up in WW1 and this hastened their going generic. ASPRIN is still protected in some jurisdictions, IIRC.

There are other, better examples in which the seizing of foreign assets during a war don't play a role. Thus, I don't invoke the ASPRIN mark much.

You mention survey evidence, is that actually a benchmark the courts would use to determine the protectability of the trademark?

Oh yes. Surveys are commonplace evidence in trademark cases. Of course, you have to construct the survey correctly, and it's a pain in the ass to do. A flawed survey loses cases. Remember, a trademark is meant to serve the public by indicating that goods so marked share a common origin, so that the consumer can anticipate an identical level of quality among marked goods. (E.g. one can of COKE-brand coke should taste the same as another. Whether it's good or bad is irrelevant, so long as it is consistent.) It's all about consumer understanding. If consumers think that the mark indicates that the good comes from a particular source (they don't have to know the source) and that all so-marked goods come from that source, then the mark functions. E.g. LEVI'S jeans are jeans from the Levi's company; LEE jeans are from a different company. But if they were just marked JEANS, then they could be from anywhere, since JEANS are what the product is, not an indicator of where it comes from, to distinguish it from other similar goods.

Surveys are a common way of sussing out what is in the mind of the consumer.

Incidentally, there was a big trademark case some years back with the MONOPOLY mark, and ultimately Congress had to intervene or the mark quite possibly would've been lost.

Re:Uh, Flagrant Violation of What?

[randyest]

Dif you mean ASPIRIN? Not to take away from the rest of your post, but the all caps plus the misspelling was grating.

Re:Uh, Flagrant Violation of What?

[cpt kangarooski]

Sorry about the misspelling. The all caps, however, is fairly common in the trademark field, so it's just a habit I've developed.

The problem is that viral vids sell music

[WillAffleckUW]

The problem is that free viral videos sell more music songs than killing off the viral vids, just as free viral social apps like Scrabilicious sell more Scrabble games for the licensors than kill off the free social app will.

Don't kill off the goose that lays the golden eggs ...

Re:The problem is that viral vids sell music

[iamhassi]

"just as free viral social apps like Scrabilicious sell more Scrabble games for the licensors than kill off the free social app will. Don't kill off the goose that lays the golden eggs ..."

Golden eggs? Hasbro sells 1-2 million boards a year, and that's before the "golden egg" Scrabulous existed. They don't need Scabulous.

However these brothers are still making 25k/mo on something Hasbro had to pay good money to buy. And they already make a PC version of Scrabble. This is like someone making a online version of Starcraft and then bitching when Blizzard comes after them. What sense does that make?

if you want to use someone's property you have to do the right thing: ask them to use it and pay them if they demand it. You can't just steal it and say "but I'm doing some good with it!" Life doesn't work like that.

Re:The problem is that viral vids sell music

[WillAffleckUW]

I have a Mac, not a PC. My other computer is Linux.

Windows PC Scrabble games do nothing for me.

Yeah, Facebook Scrabble works.

Re:The problem is that viral vids sell music

[illegalcortex]

if you want to use someone's property

You can't just steal it You are laboring under the false belief that ideas are the same as real property. They are not. Copyright, trademark and patents are all licenses that the citizens grant to the creators. They recognize that they are creating an imaginary "property" because they feel their is some benefit to it. It's not a fundamental right or something. It's not something that can simply be used as a hammer to prevent someone else from enriching society. It's society saying "we find that we will benefit more from letting you have an exclusive license on this thing than if we allowed everyone to copy it."

Given those reasons, it does not make any sense to claim that a company trying to squash people from making an online version is the one being stolen from. Remember, they are given this exclusive license so it will benefit us. If they had an online version already, it would be a different situation.

Now, this might not be how it works in court. Money can buy a lot of things, but foremost it can buy you the legislative and legal system. But before you go spouting off terms like "property" and "steal" as if it's some kind of moral imperative, try to think for a minute about the basis of very existence of intellectual property.

Addendum: Even though they already made a PC scrabble game, that's not the same as an ONLINE scrabble game. Fundamentally different when you're talking about a social game like this. Sure, they plan on releasing one now. But a game like Scrabble is so simple it could and should have been officially released online anytime in the last 10 years. It's not a stretch to say they're only doing it now because Scrabulous spurred them on. So really, what you are seeing is a perfect argument for limitations on intellectual property. The success of the unauthorized versions are actually what is causing the official creators to provide society with a new creation.

Re:The problem is that viral vids sell music

[mdwh2]

This is like someone making a online version of Starcraft and then bitching when Blizzard comes after them. What sense does that make? if you want to use someone's property you have to do the right thing: ask them to use it and pay them if they demand it.

I must be reading a different article to you. I don't see where it says that anyone has taken the PC game you link to, and put it on Facebook. The article I'm reading talks about people who wrote their own game, and now Hasbro want to steal the profits of their efforts.

Re:The problem is that viral vids sell music

[sqrt(2)]

Life doesn't work like that. It doesn't? How have I been playing scrabble on facebook all this time then?

As long as there are games there will be clones of games. This isn't just a "problem" restricted to scrabble, and it's not something Hasbro is going to be able to fix with litigation, threats, or any kind of action at all. They're still selling boards and making millions, sorry if I don't feel any sympathy for this corporation.

Re:The problem is that viral vids sell music

[Vintermann]

It's not property. Games can essentially not be copyrighted, only patented - there are rulings on this which are actually very generous to would-be game cloners. Explain the rules in your own way, draw your own board (even if it is functionally identical to the original board) and it's a different game.

What EA/Hasbro/Mattel/what-have-you have paid for is use of the brand. Trademark dilution is the only thing they have a chance with.

Great Summary

[Joe Snipe]

This is really nice to see. Clear concise points, several opinions, and decent story background. good work, let's hope it keeps up.

Re:Great Summary

[Jafafa Hots]

Except for the fact that its totally wrong. the game is not in violation of copyright. The most that could possibly be claimed is that Scrabulous is too close to Scrabble and infringes on trademark. and if it did, they could just change the name.

Re:Great Summary

[99BottlesOfBeerInMyF]

Except for the fact that its totally wrong. the game is not in violation of copyright.

You're probably correct, but that is not the submitter's fault. He correctly summarized the PC World article, which correctly referenced the Reuters article, which said "copyright" even though the direct quotes said "intellectual property," "brand," and 'trademark." The summary itself was above par (IMHO) even if the submitter was not really up on the types of intellectual property (which admittedly are confusing).

Re:Great Summary

[Darinbob]

A good summary maybe, except that Zonk already posted this story on Slashdot in January. What's different this time around?

Re:Great Summary

[MishgoDog]

That's the problem of the article, as pointed out in (many) other comments.
Parent's point is that the summary, as displayed on Slashdot, is a good summary of the article. It doesn't matter if the article is wrong (responsibility of the author of the article), but rather that the submitter did a good job in creating a summary.

Perhaps you think the submitter should have worked out the difference between copyright and trademark himself? Irrespective of that difference, it's still an interesting article. And to many people (myself included), the semantic difference between the two DOESN'T interest me, rather the general concept - for which trademark & copyright are pretty much the same - is what interest me.

In short, I agree with the Parent - it's a good summary.

Re:Great Summary

[darkhitman]

You totally just jinxed it. Mark my words.

Re:Great Summary

[Carlinya]

It's a Dupe from NYTimes themselves.

Just to be clear, what is the precedent?

[pembo13]

That you can't copyright game play? That defending virtual property is hard? What exactly?

Re:Just to be clear, what is the precedent?

[Achoi77]

That Mattel isn't making money from the Scabulous app while the creators of the app are, and that they feel that they should be.

Basically it sounds something akin to corporate extortion, in a legal sense (or course).

Re:Just to be clear, what is the precedent?

[99BottlesOfBeerInMyF]

That Mattel isn't making money from the Scabulous app while the creators of the app are, and that they feel that they should be. Basically it sounds something akin to corporate extortion, in a legal sense (or course).

Actually, Mattel does have a point. Someone is using a name "Scrabulous" which is easily confused with "Scabble" such that normal people could easily assume both were made by Mattel. It is making money using the good brand name Mattel built. As for the profit aspect, technically that is irrelevant according to current laws.

Re:Just to be clear, what is the precedent?

[Anonymous Coward]

Uh, I think the precedent is that Congress never passed game-rules-copyrights into law. It never happened, so no one has something to point to and say, "aha, we copyrighted it."

Re:Just to be clear, what is the precedent?

[99BottlesOfBeerInMyF]

Just to be clear, what is the precedent? That you can't copyright game play? That defending virtual property is hard? What exactly?

This link is the US Copyright Office's page describing how copyright applies to games. The relevant quote is:

...the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

Basically, copyright applies to the text and graphic elements, none of which are likely identical in this clone. What could be defended as intellectual property would be a patent on the mechanics of game play (which are almost certainly expired) and a trademark on the name "Scrabble" which does not expire and almost certainly provides an avenue for legal action since "Scrabulous" is clearly derivative and confusing to purchasers.

Re:Just to be clear, what is the precedent?

[El Gigante de Justic]

I'm actually a Scrabulous user myself (although not through Facebook).

  The board in the application looks identical to an actual Scrabble board as I recall. They also allow you to play using either The Word List (the official Scrabble tournament word list in the US, Canada, Israel and Thailand) or the international list (referred to as SOWPODS), have options for letting the system prevent bad words, or let player's challenge bad words, and time limits always enforced, despite what the article says. The only bad thing is that sometimes it gets a little laggy due to it's popularity, so you may hit Submit for your word and watch another 30 seconds tick off your clock.

Hasbro used to have a scrabble game available on www.games.com but it has since disappeared, except for a Scrabble based game called Scrabble Blast (I believe the site was sold to AOL games, as all of the boardgames that used to be on it, including monopoly and boggle have vanished). Their version was buggy, hadn't been updated in years, didn't use either of the tournament level word lists, didn't have time limits available (so someone losing could just sit on their turn - or if they were disconnected you were stuck), it frequently crashed and overall drove players away from the game.
      They should just offer the guys in India a reasonable sum for the code, or maybe even get them development jobs and back off - it will be much better for PR than trying to shut the site down.

Re:Just to be clear, what is the precedent?

[99BottlesOfBeerInMyF]

They should just offer the guys in India a reasonable sum for the code, or maybe even get them development jobs and back off - it will be much better for PR than trying to shut the site down.

That isn't an option. If they don't file suit, anyone at a later date can claim they allowed others to use a similar name to their trademark and it has been genericized, associated with any game of that sort instead of just Mattel's version. In the US, you have to defend trademarks or you lose them. They're trying to protect their brick and mortar business and the law gives them little option.

Re:Just to be clear, what is the precedent?

[Fex303]

Actually, Mattel does have a point. Someone is using a name "Scrabulous" which is easily confused with "Scabble" such that normal people could easily assume both were made by Mattel.

And that's exactly what I did when I first had my friends add this on Facebook and invite me to play. I was surprised when I realized that it was not actually made by Mattel (actually I couldn't think of the parent company), and was waiting for it to either quietly disappear or loudly have its ass sued. All of that said, Mattel should simply buy Scrabulous from the designers for a fair price...

Re:Just to be clear, what is the precedent?

[miketothep]

While it is true that you must defend your trademark or you give up the right to defend it in the future, I believe obtaining a settlement does count as defending your trademark. I don't believe you HAVE to file a formal lawsuit.

Re:Just to be clear, what is the precedent?

[99BottlesOfBeerInMyF]

While it is true that you must defend your trademark or you give up the right to defend it in the future, I believe obtaining a settlement does count as defending your trademark. I don't believe you HAVE to file a formal lawsuit.

From what I've read: You have to send a cease and desist notice. After which, if the other party does not comply you must file suit. I believe at that point you can come to a settlement and drop the suit, provided that settlement includes them paying you or stopping distribution to prevent another party from using a laches defense in a later suit.

Re:Just to be clear, what is the precedent?

[LingNoi]

And that's exactly what I did when I first had my friends add this on Facebook and invite me to play. So you admit you're stupid enough to think that they wouldn't use their trademark name if it was official?

Re:Just to be clear, what is the precedent?

[99BottlesOfBeerInMyF]

So you admit you're stupid enough to think that they wouldn't use their trademark name if it was official?

It is common practice to introduce new, trademarked products which are derived from existing trademarked names (by the original trademark holder). Examples include "Windows XP" being derivative of "Windows." More pertinent, perhaps is "Super Scrabble" a trademarked game by Hasbro which is derivative of the original "Scrabble." It is not uncommon for a person to assume that like "Super Scrabble," "Scrabulous" was also a new product from either Hasbro or Mattel (depending upon the jurisdiction).

Re:Just to be clear, what is the precedent?

[Fex303]

As the sibling poster has mentioned, the name sounds like a derivative of the Scrabble brand. Also, if you've actually seen the app in question, it looks exactly like a scrabble board (same design, same colors, fonts, etc.).

So yes, my first impression was that it was official. I then looked at it properly and realized that it wasn't. Still, if that makes me 'stupid' in your eyes, then I guess I'll just have to find a way to deal with that.

typo

[riceboy50]

is in possible violation of copyright law Fixed that for you.

Electronic Arts????

[recoiledsnake]

Does EA need to develop a version of online Scrabble? What are they going to do, make a Directx 10 only version of it with Ageia physics so that it runs only on Vista with a hardware physics card? For a pro-flash developer I think it will take only a weekend of work to make a beta version of a clone of scrabble.

Re:Electronic Arts????

[The One and Only]

For a pro-flash developer I think it will take only a weekend of work to make a beta version of a clone of scrabble.

Yes, and that also applies to a pro-flash developer working for EA. EA doesn't just write graphics-intensive 3D games.

Re:Electronic Arts????

[puppet10]

Yes and then they need to release a new version each year - Scrabble 2008, Scrabble 2009, etc.

With the top Scrabble players for each year included as opponents and small rule changes.

Then 2k can release Word Tiles 2009, etc.

and then the two companies can fight over rights for the tournament and player names.

Unfortunately...

[Moryath]

some fucktard in the USPTO ruled they could be patented.

They let Magic:The Gathering have patents on turning a card sideways and upside down... nevermind that a good book on the tarot, or even an early-1900s copy of Hoyle's Book of Games, ought to be enough "prior art."

Then again, these are the same fucktards who think you can patent a software loop that calculates a simple mathematical equation.

Re:Unfortunately...

[Reverend528]

Patents last 17 years. Scrabble is 70 years old. That would place its rules in the public domain.

Re:Unfortunately...

[Anonymous Coward]

17 years...

Yes, but Copyright law in the US was extended, so it wouldn't be.

Remember the mickey mouse law?

According to Wikipedia:

"...the Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier...

Re:Unfortunately...

[infaustus]

Patents are not copyrights....

Re:Unfortunately...

[linuxrocks123]

You're confusing patents with copyrights.

Re:Unfortunately...

[RaceCarDriver]

Actually, they copyrighted the term "tap" in relation with turning a card sideways. They didn't copyright turning a card sideways in general.

Re:Unfortunately...

[smittyoneeach]

In "make it up as you go" legal theory, it's all "intellectual property".
Welcome to the best legal system money can buy.

Re:Unfortunately...

[drjoe1e6]

60, not 70. Hasbro is planning some newer versions for the game's 60th anniversary this year. Gotta keep milking that cash cow!

Re:Unfortunately...

[1u3hr]

Actually, they copyrighted the term "tap" in relation with turning a card sideways.

Please cite as ource for this "fact". Because it is impossible. You cannot copyright a single word, or definition.

Re:Unfortunately...

[Anonymous Coward]

Well, that's true, but not really the issue here.

They're not copyrighting the word. They're copyrighting the concept as a whole, of which the word is a part. So other game companies can use the word "tap" (as in tapping the deck for luck) and they can use the concept of turning cards sideways. They CANNOT however, call turning cards sideways (perhaps more specifically, in order to use 'points') and call it tapping.

In the same way, Marvel Comics cannot copyright the word "wolverine", but they can copyright their Wolverine character. Other comics may use characters named Wolverine or characters with retractable claws and unbreakable bones, but they may not use characters named Wolverine with retractable claws and unbreakable bones.

Re:Unfortunately...

[Trails]

Wait a minute, let me get this straight, you can turn a card upside down or sideways?!?! That's awesome! I think I just had a stroke.... of genius! What if you turn the card upside down and sideways? That's a whole new paradigm on the approach to card movement that no one's ever thought of before. I call it full vertical and semi tranversal inversion of a rectangular semi-rigid laminated paper pictographic and/or textual display unit. I invented it! It's mine!!!

Re:Unfortunately...

[TheoMurpse]

They're copyrighting the concept as a whole, of which the word is a part. So other game companies can use the word "tap" (as in tapping the deck for luck) and they can use the concept of turning cards sideways. They CANNOT however, call turning cards sideways (perhaps more specifically, in order to use 'points') and call it tapping.

Source this this, please, as again you're saying they've copyrighted something that cannot be copyrighted. You seem to be confusing copyright with some sort of quasi-patent-trademark mixture that you're making up yourself.

It's Copyright Law 101 that you cannot copyright a concept. To quote the black letter law of copyright in the United States (where Wizards of the Coast is located) 17 USC 102(b):

In no case does copyright protection for an original work of authorship 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 such work.

Flagrant violation of copyright law

[RedWizzard]

How exactly is Scrabulous in "flagrant violation of copyright law"? Did they copy the text of the rules wholesale? Did they use the Scrabble trademark? Scrabulous may be a blatant rip-off of Scrabble, but it's not at all clear that it violates any of Mattel's intellectual property.

Re:Flagrant violation of copyright law

[99BottlesOfBeerInMyF]

How exactly is Scrabulous in "flagrant violation of copyright law"?

It isn't.

Did they use the Scrabble trademark? Scrabulous may be a blatant rip-off of Scrabble, but it's not at all clear that it violates any of Mattel's intellectual property.

"Scrabulous" is fairly clearly too similar to Scrabble for trademark law. That is the intellectual property issue here.

Re:Flagrant violation of copyright law

[mblase]

How exactly is Scrabulous in "flagrant violation of copyright law"? Did they copy the text of the rules wholesale? Did they use the Scrabble trademark?

Well, according to TFA, "Scrabulous...has a board that looks just like Scrabble, and the same number of letter tiles with the same point values."

If they'd rearranged the spaces on the board and the point values -- and they wouldn't be the first, Yahoo's been hosting Literati for quite some time -- they'd have been okay. But Hasbro has successfully gone after every single online clone of Scrabble that's ever shown up, and these guys should have expected the same.

Re:Flagrant violation of copyright law

[RedWizzard]

"Scrabulous" is fairly clearly too similar to Scrabble for trademark law. Is it? If it was "Scapple" or "Scabblo", sure. But I don't see "Scrabulous" infringing just because it shares the same first 5 letters. The two words don't look or sound particularly similar. Or are you saying that every computer company with a name starting with "Micro" is infringing Microsoft's trademark?

Re:Flagrant violation of copyright law

[Anonymous Coward]

The two words don't look or sound particularly similar.

Riiiight.

Sincerely,

Redizurd.

Re:Flagrant violation of copyright law

[Alsee]

"Scrabulous... the same number of letter tiles with the same point values."

The rules of a game are not protectable. A particular wording of the rules might be copyrightable, but not the rules themselves. The number of each letter, and the point value for each letter, are fixed by the rules and do not constitute creative copyright copying.

"Scrabulous...has a board that looks just like Scrabble"

No, it doesn't. A Scrabble board has creatively selected graphics on and around the playfield, has creatively selected text on and around the playfield, and in particular has uniquely stylized "spikes" around the edges of the colored playfield squares.

Scrabulous copies none of that.

Scrabulous has a basic blank 15x15 grid playfield overlayed by an arrangement of bonus point squares. These aspects are entirely constrained by the game rules, and by copyright law do not constitute copying of protectable creative work.

The *ONLY* elements of the Scrabulous that potentially involve "copying" under copyright law would be the selection to assign red / light-red / blue / light-blue for the various bonus square types. And those four color selections really only constitute three three distinct choices. You have the selection for red for word bonus, the selection of blue for letter bonus, and the obvious selection of pale color for lower value bonus.

So yeah in gross form the Scrabulous board resembles the Scrabble board, but the resemblance is almost entirely confined to non-copyrightable non-choice rule defined aspects. Only the assignment of red, blue, and paleness are free creative choices, and those two and a half choices are far too insignificant to constitute a copyright infringement case.

The only possible case here is on trademark that 'Scrabulous' is deceptively reminiscent of 'Scrabble' might confuse the public that it is actually a product of Mattel. And even that is an extremely weak case. The fact that it is merely 'reminiscent' is not enough to constitute trademark infringement. It has to be confusing enough to cause a real and substantial risk of misleading a reasonable member of the general public.

Now maybe I am too well informed and have too high of an IQ to speak for "a reasonable member of the general public", but I would not mistake Scrabulous for a product of the Mattel corp and I don't think most of the people I know would either.

-

Re:Flagrant violation of copyright law

[99BottlesOfBeerInMyF]

Is it? If it was "Scapple" or "Scabblo", sure. But I don't see "Scrabulous" infringing just because it shares the same first 5 letters.

Scrabble is a real word meaning "to frantically scratch." Fabulous is a common word. Scrabulous makes sense from a linguistics perspective as a portmanteau that combines the two words and their meanings. Since "scrab" is such an unusual word beginning I think it would be quite hard for any defense to convincingly claim "scrabulous" is not derived directly from the name of scrabble the board game. Since Scrabble is not a common word in relation to board games, the trademark in that area is very clear cut.

The two words don't look or sound particularly similar.

I see, so your theory as to how they chose the name is that it was a random, nonsense word that just happens to share the first five letters with a nearly identical game that is quite popular?

Or are you saying that every computer company with a name starting with "Micro" is infringing Microsoft's trademark?

No, I'm not saying that at all, nor would I need to in order for my former argument to be true. Micro is a common beginning to the names of many computer related companies because microelectronics was the trade name of the field that gave rise to modern computers. Likewise "soft" refers to software, also a common term in the same industry. However, you'll note that the "Lindows" product settled their lawsuit about being confusingly similar to "Windows" before they could lose it. The reason for that is because "Windows" was trademarked and they were on the record as having said it was a blend of "Windows" and "Linux."

How different would the graphics have to be?

[NotQuiteReal]

If you just changed the font and the color of the board is that enough? How about the words? (E.g. use "2X Value" instead of "double word", etc.

If that is enough, what if you made those things a user preference, and the users changed them to look like the original? If you don't distribute the offending "skin", are you in the clear?

Re:How different would the graphics have to be?

[Chris Burke]

I'm no expert on the subject, all I know is that there is no clear cutoff on such things. I think "significant similarity" is the suitably ambiguous metric.

After making that post, I went to scrabulous.com which has a screenshot, and the board has no writing on it but otherwise looks the same as the Scrabble board with the exact same pattern and colors for the normal squares and the double/triple letter/word score squares. That's probably enough to at least make copyright violation claim plausible.

Re:How different would the graphics have to be?

[arb phd slp]

Whether it is a double or triple word/letter bonus is a game rule, not a stylistic expression. At most they would need to change the colors to keep from infringing. Hasbro certainly doesn't own the copyright to the 15x15 square grid.

Copyright

[N7DR]

Games are usually patented. Weirdly, though, Scrabble seems to have been copyrighted instead (http://www.mattelscrabble.com/en/adults/history/page6.html). It's pretty difficult for a non-lawyer like me to see how this is adequate protection. (If it was patented at some point, the patent must surely have expired anyway.)

Re:Copyright

[taustin]

Game mechanics cannot be copyrighted. It's very explicit. They can be patented, if they meet the requirements for originality, etc., but any patent would have expired years ago.

What can be patented is artwork, including, possibly, the layout of the game board. Maybe. If it's original enough. And the name, of course, is trademarked. If the layout of the online version is identical, Mattel might have a case. Trademark infringement, maybe. But copyrighted? Not really.

Re:Copyright

[BaronHethorSamedi]

If it was patented at some point, the patent must surely have expired anyway.
Which is exactly why copyright nets you more protection. Scrabble would have fallen out of patent ages ago. Copyright for a work for hire gets you 120 years of legal protection from the date of creation, as opposed to 20 years for patent. And even if your copyright does come close to expiration, you can always count on some big company to step in and lobby for an extension.

Facebook for double word score

[e03179]

Given today's game developing mindset (consoles!, handhelds!, web portals!), do you really think that EA would have ever thought to use Facebook as a distribution network for their game? Yeah, they may make a new Scrabble game, but they are going to throw it up on XBOX Live, Wii network, or MSN.com. One of reasons Scrabulous is doing so well is because it's on Facebook's network.

Fixed the summary

[bobdotorg]

From the summary:
Hasbro's partner RealNetworks is 'working closely' with the piratical brothers, but some douchebag lawyers at Mattel says that 'settling with the [brothers] would set a bad precedent' for other board games going online."

Not everybody at Mattel is a strategic idiot. But why should some douchebag lawyer let increased profits stand in the way of a good old fashioned pointless lawsuit?

Re:Fixed the summary

[99BottlesOfBeerInMyF]

But why should some douchebag lawyer let increased profits stand in the way of a good old fashioned pointless lawsuit?

Actually, they have to bring suit unless they want to lose their trademark on the name "Scrabble" thus killing their brick and mortar Scrabble business.

I don't see the issue here

[mcsqueak]

I fail to see the issue with what these two enterprising brothers have done. In my opinion, Mattel would never have thought about making a Scrabble facebook app... thus, in my twisted logic, they are not really being deprived of revenues they would have been otherwise earning. I know this doesn't really make it "right", but whatever. You snooze you lose.

These companies, time and time again, show that they just "don't get" the current online world and are having a hard time figuring out how to transition and make a profit. Rather than suing these guys they need to hire them.

Re:I don't see the issue here

[macdude22]

Scrabulous has been around for years before the brothers put it on facebook anyway. I figure if Mattel or Hasboro or whoever had an issue with Scraboulous they should have taken it up then. It wasn't until it got super popular on facebook that the ol boys came in with swinging the copyright bat. Isn't there something on the books that say corporations can't throw a fit 5 years after the fact and they decide they want in on it. And they aren't going to put it on facebook which is apparently why it became some damn popular in the first place. Way to flub up 2x guys. Just buy scrabulous and hire the brothers, probably make a lot more money.

Re:I don't see the issue here

[99BottlesOfBeerInMyF]

...thus, in my twisted logic, they are not really being deprived of revenues they would have been otherwise earning...

Lost revenue has little bearing on intellectual property anymore. Basically it only matters for how much can be claimed as damages for violations of registered trademarks after a takedown notice has been sent. Back in the 70's it mattered, but since then lobbyists have bought more restrictive laws.

Rather than suing these guys they need to hire them.

According to our laws, Mattel has little choice. If someone can show they knew about Scrabulous and did nothing, Mattel could lose their trademark on Scrabble and nothing would stop other companies from creating nearly exact clones of Scrabble, even called Scrabble, or Scrabble Extreme or whatever; destroying their brick and mortar business.

Re:I don't see the issue here

[davidsyes]

Probably some dim-wit bean counter decided that it wasn't worth it to develop a Flash version of it. ALL the games out there in Flash... you gotta wonder what is going on in the minds of these execs and their lackeys lacking vision.

Would it have really been THAT hard, Mattel/Hasbro?

Now, i can imagine them strong-arming Facebook to divert the weekly $25,000 take. But, maybe, out of spite, the advertisers of Scrabulous should terminate their advertising contracts and poison the well if Hasbro/Mattel come on like gangbusters. They had ALL these years (what, 2 or 3, or 4?) to protect "their" "trademark" and apparently did not aggressively do so. SO, they probably will be found to have allowed dilution (or whatever the legal term is), abandonment, and disregard for shareholder interests.

Those Scrabulous brothers should rename it to Sclaburous, or Scabo, or something. Now, maybe "scabo" might be problematic:

http://www.urbandictionary.com/define.php?term=scabo

But, since it appears "sclaburous" is not in Google, i confer it to the Scabulous Brothers. If anyone else is using it, i will deliberately use it and dilute it any and every printed chance i get. And, if corporations pick it up, to hell with them. i made up the word, and if the public use of it by me or by others is threatened, i will keep pushing it. Try to issue any cease and desist... you WILL regret it.

Re:I don't see the issue here

[mblase]

In my opinion, Mattel would never have thought about making a Scrabble facebook app... thus, in my twisted logic, they are not really being deprived of revenues they would have been otherwise earning. I know this doesn't really make it "right", but whatever. You snooze you lose.

But the owners are making money, to the tune of $25,000 a month from online advertising. They're doing so with Hasbro/Mattel's intellectual property, without permission, and aren't sharing a dime.

Re:I don't see the issue here

[shark72]

"Probably some dim-wit bean counter decided that it wasn't worth it to develop a Flash version of it. ALL the games out there in Flash... you gotta wonder what is going on in the minds of these execs and their lackeys lacking vision. Would it have really been THAT hard, Mattel/Hasbro?"

There are various licensed Flash/Java/etc. Scrabbles and Scrabble variants on pogo.com, games.com and similar sites. I don't believe that Mattel/Hasbro developed them; rather, they licensed the rights to the game site operators who went off and developed their own code.

Hasbro's issue is that the Scrabulous developers did their work without seeking a license. Hasbro doesn't hate the idea of people playing Scrabble online; rather, they want to make money while it happens.

Before anybody points out the implicit greed behind a profit motive for online gaming -- just keep in mind that the Scrabulous developers have a profit motive, too. And, they're apparently profiting quite handsomely.

They have a claim

[the computer guy nex]

Naming a game "Scrabulous" obviously (court to decide) builds from the name Scrabble.

Would Scrabulous be as popular if it wasn't instantly recognizable? Probably not.

Re:They have a claim

[mcsqueak]

Naming a game "Scrabulous" obviously (court to decide) builds from the name Scrabble.

Of course it builds from the name Scrabble, thats the *whole point* of the game isn't it? They get a higher score for that name!

Re:They have a claim

[Anonymous Coward]

'Cause they're retarded. DUH. This site sucks. I signed up just to say that. YOU PEOPLE SUCK.

Re:They have a claim

[RedWizzard]

Naming a game "Scrabulous" obviously (court to decide) builds from the name Scrabble. They might be confusingly similar. I don't find them to be, but as you say, a court would need to decide.

Would Scrabulous be as popular if it wasn't instantly recognizable? Probably not. I don't agree. Particularly on Facebook popularity is a viral thing and the name has very little to do with it as people are not searching for these games by name. They are finding them because their friends have found them.

Re:They have a claim

[Jherek Carnelian]

Naming a game "Scrabulous" obviously (court to decide) builds from the name Scrabble.
Would Scrabulous be as popular if it wasn't instantly recognizable? Probably not. They should have named it "Definitely NOT Scrabble" - no chance of trademark confusion with that.

Re:They have a claim

[justinlee37]

This made me laugh. I wonder if that would really hold up in court? My guess is no, but IANAL.

Re:They have a claim

[Omestes]

Or SINS... for SINS Is Not Scrabble...

Wait... something like this has been done before... crap.

Re:They have a claim

[dissy]

Would Scrabulous be as popular if it wasn't instantly recognizable? Probably not. Tell that to the popular Yahoo game Literati ;}

(Which btw is scrabble)

Popular of course being relative. Most people that play yahoo games know of it and alot find it quite popular.
I would say more so than the facebook version, which hasnt existed as long and doesnt have nearly as many online players it seems.

Re:They have a claim

[Killjoy_NL]

You signed up but still post as an anonymous coward, the irony :)

Oh crap I am in Trouble now.

[jameskojiro]

I took a wood burning kit and made my own damn tiles so I could spell new works and photocopied a scrabble board and made my own bigger board. I guess I really suck!

Re:Oh crap I am in Trouble now.

[Pope]

Sorry, Trouble is a Milton Bradley game!

Re:Oh crap I am in Trouble now.

[Ambiguous Puzuma]

Sorry! is a Parker Brothers game.

Re:Oh crap I am in Trouble now.

[asn]

Trouble, Sorry is a Parker Brothers game!

Re:Oh crap I am in Trouble now.

[NorCalTroy]

Sorry, "Sorry!" is a Parker Brothers Game.

Re:Oh crap I am in Trouble now.

[TheoMurpse]

And you both just LOST. THE. GAME.

Mattel has always been protective of scrabble

[Evets]

The fact that this is news to the guys who built Scrabulous just shows that they haven't done their homework. Mattel has been very aggressive about shutting down online scrabble implementations since the early days of the web.

Re:Mattel has always been protective of scrabble

[arb phd slp]

The article in the NYTimes earlier this week actually mentioned that they wrote their version of the game when a previous one that was popular got shut down. They had to have known.

Maybe they thought that the others just caved in to Hasbro's lawyers too easily. Hasbro really doesn't have a copyright case. (The name "Scrabulous" probably is too close to the word Scrabble(TM) but the game itself doesn't infringe.)

Re:Mattel has always been protective of scrabble

[xtracto]

(The name "Scrabulous" probably is too close to the word Scrabble(TM) but the game itself doesn't infringe.)

You can find plenty of meanings for the word "scrab".

Online Scrabble has the same problems as chess

[CrazyJim1]

You don't know if the other person is using a cheat program.

Good lood, Hasbro

[pak9rabid]

written by two Scrabble-loving brothers in India Good luck with that guys.

If somebody would only do Titan...

[mjfgates]

... but no. SCRABBLE, feh. I wanna summon lions in the plains!

Re:If somebody would only do Titan...

[drjoe1e6]

Not sure if you were being facetious or not... but check out colossus.sourceforge.net if you like Titan.

Ongoing popularity among fans is great, but I have to believe an on-line presence helped Titan gain enough new fans that the reprint is now reality.

-Joe

Re:If somebody would only do Titan...

[Bushwuly]

They did.

http://colossus.sourceforge.net/

(Anyone want to put this on Facebook?)

Easy answer just rename it....

[Hugonz]

Rename it to Scripple. That's it!

scrabble is great

[domino14]

this may be slightly off-topic, but if you like scrabble you should check out your local club or tournament! there is a large community of us that blog about tournaments, as nerdy as it sounds. here is my report about this past weekend's Vancouver Scrabble Tournament: http://cesarsalad.livejournal.com/105021.html as far as the whole scrabulous debacle is concerned, the vast majority of us support scrabulous and many believe the game should not be 'owned' by anyone.

Bad Precedent???

[miketothep]

"settling with the [brothers] would set a bad precedent for other board games going online."

So someone else takes care of all the development costs, the initial marketing to build a huge following, furthers your brand (which has undoubtedly translated into some additional board game sales for you) and all you have to do is show up after it's a success and negotiate a reasonable settlement?

How is that that a "bad" precedent?

I suppose if you're a Mattel/Hasbro lawyer, settling would be a bad precedent, because then the game developers and Mattel/Hasbro would actually make money, instead of you.

"bad precedent"

[sehlat]

Which tells you just who really runs Mattel/Hasbro, and it isn't the CEO or stockholders, it's the lawyers.

On the other hand, given that the company hasn't produced anything new in years that was worth paying attention to, this comes as a surprise how?

The law seems pretty clear to this non-lawyer...

[Max Threshold]

"The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

"Copyright protects only the particular manner of an author's expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles." - http://www.copyright.gov/fls/fl108.html

I've been playing Scrabble online for years at ISC

[femto113]

That's the "International Scrabble Club" at http://www.isc.ro/ Servers are run out of Romania to avoid the legal issues. It manages to attract many of the best Scrabble players in the world.

Riskulous

[bryanbrunton]

The game of Risk (also a Hasbro property) has a multitude of imitations around the web, one of which is my web-based version, called Grand Strategy (www.denizengames.com). I've heard from the creators of other Risk games that they have been threatened by Hasbro if they have used Risk trademarks. I believe that the precedent is fairly clear: Hasbro and other corporate entities won't touch you if you stay away from trademarks, game rules cannot be copyrighted.

What's amazing is how poorly done Scrabulous is. The site design, flow and presentation are incredibly weak. A fair amount of the site appears to be "under construction". And they're going to pay tens of millions for that?

Re:Riskulous

[Vintermann]

You're right, game rules can not be copyrighted, only patented. I'm fairly sure Hasbro, Mattel etc. want to keep it like that. Thousands of people invent games every day, and accidental reinvention happens all the time. Apparently Hasbro has had trouble with people suing them for "stealing their idea" already.

If you ship them a game prototype they apparently send it back unopened with a note saying they can't risk looking at it for legal reasons.

Even if such crank lawsuits will fail, I bet they are a nuisance - and they would be much worse if a game actually could be copyrighted.

But I think they are perfectly happy with the situation as it is: Board games are basically lemons to most people. They have no way to judge their quality. Therefore, they buy based on whether they played a game with that name when they were young, or whether it's got Winnie the Pooh on the cover (if they're buying for their kids). The situation is perfect for them: they don't need to waste much money finding out what a truly good game looks like, they can just rebrand and resell for very good profit and very little risk.

Eventually, we may hope that people become more quality-conscious about boardgames... but first BoardGameGeek would have to change it's name, I think. And even then, in gamer forums there are always people who are either

1. Lamenting that they bought an awful game because they forgot to check the user comments at boardgamegeek first
2. Desperately looking for some OOP game, lousy by today's standards, but which they have a sentimental relationship to since they played it as children...

So Hasbro isn't going out of business anytime soon.

Rights? Right.

[Fantastic Lad]

I distilled the following from the Wiki entry

-Invented by Alfred Mosher Butts in 1938. Was unable to sell the idea to the big game companies of the day, including Parker Brothers and Milton Bradley.

-Sold manufacturing rights to entrepreneur, James Brunot in 1948 for royalties on each unit sold.

-The game hit big, but Brunot was unable to keep up with demand. In 1952, sold manufacturing rights to Selchow and Righter (another of the game companies which had originally rejected the idea.)

-In 1986, they sold the rights to Coleco, who then went bankrupt and were bought out by Hasbro

So. . . 80 years and 5 different owners. Seems to me the various trademark laws have done their job in rewarding the original creator and those who helped launch the game into public awareness. Law of the land-wise, I really don't know nor care, but morally it seems to me that Hasbro is saying they're the only company allowed to create and sell the game simply because they happened to be dopey enough buy a stale patent. In my world, the makers of the digital version would be called entrepreneurs, not pirates.

-FL

Just curious.....

[edwardpickman]

Why are the people that created a game evil when they defend their creation but some one that exploits the creation a white hat? They aren't even giving it away they're making 25K a month in ad revenue. Is the point that the owners or creators shouldn't be able to benefit only the ones that want to exploit some one else's work? It just seems every time the creators/owners are viewed as being unreasonable and the people taking advantage of their creation are viewed as striking a blow for liberty. Multiple people complain that you can't copyright rules but then are games impossible to copyright? I know only artwork blah blah blah, but then what about music or films? The companies making this stuff available are making money off the products. People selling DVDs in south east Asia are making money off the cheap DVDs but they didn't create the content. How can you ever hope to make a living if everyone is allowed to endless copy your work? Yes I know big evil corporation like Mattel. Say I come up with a Textris type game? Some one comes up with an identical game called Buttress that looks a little different but plays the same. They have more resources so they flood the market and I declare bankruptcy. Now am I evil because I maybe tried to sue them? If they're making money off my game design then why are they potentially the good guys? Rules are one thing but with Scrabble it's the game design. I doubt it's a whole new game design it sounds like they just did a Scrabble game and called it Scrabbulous. Okay obvious name conflicts but would it be any better if they called it Wordz? It's still a knock off. I guess you could do a version of Monopoly and call it Microsoft then you could have two companies suing you at once for the same product.

Don't trust journalists

[EmbeddedJanitor]

only bloggers

Suggested names

[Jabbrwokk]

So then they should change it to something else. Maybe they could pick "Scabulous." Sorry, that's too gross. How about "Wordsmith?" Or "Super fun happy family word make game." Oh wait, it's two guys in India, not Japan.

Seriously, though, I think they could have named it anything and it would have still been popular. The threat of lawsuit just seems like a "me-too" on behalf of the Scrabble publishers because they're just upset they didn't think of making a Facebook game first.

It is EA, Hasbro and Mattel, after all, some of the worst offenders when it comes to the bug and ad-infested crapware with which Wal-Mart fills its shelves. Name recognition is all they have going for them and they want to defend that market because it's lucrative and the thought of making money off an Internet app confuses and scares them.

Servers?

[Jabbrwokk]

Hell if they somehow get away with this I'm making Starcraft Universe (WoW clone) and I'm gonna be a millionaire! Hope you've got a few hundred servers in your mom's basement there. And that's just for your Korean customers.

Blanket "intellectual property" confuses again

[tepples]

I dug up the original Reuters article this is referencing, assuming somewhere along the line someone copying it had managed to confuse copyright and trademarks. Sadly, it appears it was the original reporter that screwed up. He says they threatened with regard to copyrights, but all the direct quotes refer to trademarks, brands and "intellectual property." Never once does any spokesperson for Mattel reference copyright directly. Which only serves to illustrate the confusion that blanket terms such as "intellectual property" create.

Note, trademarks are probably what are at issue since "Scrabulous" is easily confused with "Scrabble." The authors of the game should have picked something that did not reference the trademarked name. Which is why I made sure to pick a name for LOCKJAW tetromino game that doesn't have even one letter in common with "TETRIS".

It should be:

[ipb]

    p
    o
    s
first

Wrong Strategy, Mattel

[pz]

Step 1: observe that board games are a dying market

Step 2: actively and repeatedly suppress on-line implementations, despite the obvious unmet market need and potential source of revenue

Step 3: when a wildly popular implementation pops up, instead of licensing it and splitting the revenue, try to squash it on shaky legal grounds

Step 4: hire a big gaming company in the US to implement a new version at 10x the cost of licensing the developing-country version

Did I miss anything? Sounds like a broken strategy, Mattel.

Re:Wrong Strategy, Mattel

[justleavealonemmmkay]

A dying market ? Are you kidding me ? Settlers of Catan, Puerto Rico, Machiavelli don't ring a bell ?

Turning it around...

[shark72]

I know that sympathies are clearly with the Scrabblicious developers here, so I won't try to argue that point. The feeling in the community appears to be that since the guys aren't selling it and because Scrabble's been on the market for a while, it's fair game for a copy, and no authorization or payment to the rightsholder should be necessary. But, as a thought experiment, what would happen if the situation were reversed?

1. Some independent developer comes up with a totally new game concept and codes it as a Facebook app. It's not something simple, like Sudoku, but a game with distinctive play mechanics, board artwork, and the like.
2. Hasbro (or some similarly large commercial entity) then copies the game and starts making money off of it. Not an "inspired by," and not a new game that is evocative of the Facebook app -- a direct copy, down to the rules and gameboard artwork. They don't seek permission. And, they don't pay the rightsholder -- the independent developer who came up with the game.

I think it's obvious that the consensus Slashdot sympathies would not be with Hasbro.

Re:Turning it around...

[Gigafrost]

Kind of late for a reply, but...

Yeah, Slashdotters wouldn't have much sympathy for Hasbro in that case, but that's not really a good example of reversing this situation. Despite mentioning it in your opening paragraph, you forgot the part where the game has been on the market for a long time. So, the scenario really should be:

1. Some independent developer comes up with a totally new game concept and codes it...

2. Fifty years later, Hasbro (or some large commercial entity) then copies the game...

I don't think the Slashdot "hive mind" has nearly so much sympathy for the independent developer...

Scrabulous? Gross..

[DelawareGT]

Scrabulous attracts a lot of bozos and perverts. Here's a sample of open tables:

"fun flirty fems.....nz?"
"msn ladies for a chat"
"Naughty chat and a good game anyone? Say 'hi Tim' if you're in the mood to play d irty!"

"No pervs, no dictionarys, just brains... same rating or higher"

At least there are SOME people like myself that prefer to play for the game. Most of the sex chat creeps have shit scores anyway.

Re:Scrabulous? Gross..

[tgd]

Its hard to play one-handed!

Mattel can only screw up software!

[cozytom]

Back in the day Mattel used to sell spy ware infested programs (Printshop). It was hard to
use and just funky as can be. It got better over the years, but the spyware would make me
not want it.

My daughter got my boys a Fisher Price digital arts and crafts studio (more Mattel software).
It barely installed (see amazon reviews, not too many people can get the POS installed). Wow
what a pile of crap. Hardly usable. The kids can draw their pictures but can't print them, it
takes tricks to save, print and recover them. Way less than intuitive. Makes it obvious they
don't think kids understand computers, turns the multitasking machine back to one task at a time
DOS like.

Okey so now they think they can build a game that will be as popular as some people who get the
net. Good luck with that. Watch it be built by committee, with featuritis explosis (every
feature a group marketing dorks can imagine added on). It will be unusable, to the point where
people will complain, and marketing will blame everyone else.

They should shut up, and pay the kids who know what they are doing, and keep marketing out.

Dare I mention Freecraft?

[kn0tw0rk]

Blizzard pretty much stomped on them and it was a similar situation.

The Learning Company comes to mind

[Samuel_Gompers]

Imagine if Mattell had instead decided to quietly buy 25% of EA and 40% of Activision with that money a decade ago...

Can you guys imagine...

[Spy der Mann]

if Hasbro had copyrighted CHESS?

Back in my day...

[longacre]

Anyone remember #riskybus?

What idiots

[Sukael]

Mattel would do a lot better by buying Scrabulous, hiring these guys, forcing them to fix the bugs, and turning it into an in-house Scrabble app.

Hrere's what I'd do...

[91degrees]

Make an online version of Scrabble that behaves very similarly to Scrabulous. Test it thouroughly. Make a high quality product.

Sue Scrabulous for copyright and trademark infringement. Demand they hand over the Scrabulous trademark and domain. Slot in the online version of Scrabble as a replacement for Scrabulous. ???. Profit. This way they get all the benefit of Scrabulous's marketting for free, and can get that $25000 per month for themselves, without causing any inconvenience for their customers.

Net scrab knockoffs go way back, same dumb issues

[musth]

In the early 90s I briefly helped administer a text-based scrabble server (ScrabbleMOO), which was run straightly, just for fun, with a no-caving-in-to-corporate-bs attitude, but I was soon run off the project by a couple people with a different philosophy; one was a rather un-self-conscious programmer who wanted to control every aspect of the project he could, and the other was a lawyer who happened to be a scrabble expert, who ended up acting as a kind of legal Rasputin. Together they changed the ethos of the project to live in fear of the corporate legal world. The name was changed to something generic, the word "Scrabble" was carefully shunned and "crossword game" substituted everywhere. The board was no longer a given but had to be constructed, by every new player, from a menu of board sizes and bonus tiles. This was all in an ASCII interface so artwork wasn't much of an issue.

The devotion to appeasing legal standards resulted in comical contradictions and hypocrisy, to my mind. Player-constructed boards had to be "validated" against an unpublished standard, which was unsurprisingly the regulation Scrabble board that all the other players were using. The facade was thin as veneer and nothing I would conscionably stomach, but all this was done in the name of longevity and lying low and surviving any legal challenges.

The mutated project didn't draw anything close to the numbers that Scrabulous does, so probably escaped legal challenge for that reason alone, though if I remember correctly the trademark holders had scared off other small hobbyist projects using the Scrabble name, even in those early days before the web.

Others here have pointed out that the Internet Scrabble Club (isc.ro) offers a much better interface for the serious player than does Scrabulous. Several years back, one of the ISC admins told me that a short way into their project that they had actually gone out of their way to contact Mattel and/or Hasbro for permission. They were ignored, so they proceeded, and the server still thrives. And ISC allows free play and is ad-free, but charges about $30 annual for subscription for additional playing features.

My feeling is that if you're going to make a hobbyist implementation of a game you like, but you jump through ridiculously transparent contortions to avoid legal hassles, don't bother because it doesn't exactly show personal integrity. I'm all for sticking it to corporatism and using their own rules against them, but doing it for the issues that seriously matter and being forthright about what you're doing.

Sounds to me like

[hairyfeet]

Just another horribly behind the times company clinging onto their outdated business model by punishing anyone who comes up with a better idea,instead of offering to work with them and reap the rewards. Where have I heard this before?

While not a big board game fan,I have read about Mattel and how lousy their versions of board games were for online play. Go buy a $10-29.99 cd version of a board game,install it, and end up with some bad, buggy, bloated POS that just sucks. The few times they tried for a strictly online version weren't any better from what I've read. Why can't these older companies see the writing on the wall? Folks LIKE online, they LIKE not having to install anything or having things just work. What folks DON'T like is-slow,buggy,hard to deal with,and most hate DRM,at least from what I've seen with all the people cursing .wmv DRM that they found out the hard way doesn't work with their iPods.

What I really don't get in this case is the Indian guy have done ALL the work for them. All they have to do is license it, take a nice 10% slice, and enjoy the free cash. But no, that would be smart. Instead they'll bury them with a lawsuit, try to make a piss poor ripoff of it themselves(and fail with a capital F because they just don't get it) and in the process piss off a lot of younger folks that might have actually bought some items from Mattel,which they could have advertised as part of the licensing deal. It smells to me like a classic case of "not invented here" syndrome. But as always my 02c,YMMV

Another Example Of Indian Theft, Lack Of Innovatio

[Anonymous Coward]

Why the hell must Indians make all their money by stealing? This is yet another example of Indians who could not innovate their way out of a paper box. So, they take an old idea and put it on line. How creative is that? Not very. How many "games" have you heard of that originate in India. For that matter, what innovations across the board have Indians ever given the world. They are just trained monkeys without a grain of the creativity that is second nature to Americans.

BrettSpielWelt, anyone?

[Asmor]

If Scrabulous sets a bad precedent... What about BrettSpielWelt, a German program (available in English) which allows you to play dozens and dozens of the best board games to come out of that unlikely mecca of gaming.

Fragrant!

[QJimbo]

I too thought this violation smelled peticularly nice, like the smell of old boardgames mixed with curry. Oh wait... flagrant... erm... forget I said anything...

Re:I've been playing Scrabble online for years at

[s7uar7]

How does hosting the servers in an EU country avoid legal issues?

!new

[StikyPad]

This isn't actually anything new, despite the implications/ignorance of the author. Hasbro and Mattel have been shutting down Scrabble knock-offs for years (last paragraph), and for some reason continues to leave a void in what would likely be a very profitable online presence. e-scrabble.com was one of my favorites; unfortunately the site owner chose to use the word "Scrabble" specifically. Since trademarks expire only when the owners fail to defend them, that was a bit like putting a large bullseye on his head.

Not actually unprecedented

[gblues]

Years ago, a then-unknown development group named Factor 5 created the C=64 game Katakis, which bore an uncanny resemblance to Irem's R-Type. So much so, that Irem sued Factor 5 to change the game--they did, and it was renamed to Denaris after being modified to look less like R-Type.

Well, Irem's internal development team ran into complications, so they hired Factor 5 to do the C=64 port of R-Type!

(Thanks to Mar_ on NeoGAF forums for this amusing anecdote)

!copyright && !patent

[WebCowboy]

Hasbro and Mattel are using TRADEMARKS in their action and that is all.

Scrabble has never been patented. The person who invented the came in 1931 was denied a patent because apparently the idea wasn't a novel-enough departure from crossword and letter-scramble puzzle games. I guess back then people had to have REAL inventions to be granted patents. That discussion is moot anyways as patents would've long since expired.

Scrabulous does not violate copyright either. They do not reproduce the manual, nor did they do anything like scan in the board.

Scrabulous definitely could violate trademarks however. The visual appearance of the board could be registered as a trademark, and being the first five letters of the game's name are identical to the trademarked name they can make an argument the name violates trademarks too. Whether it is right or wrong to pursue legal action, trademark law is what it is. Trademarks have no lifetime limits like copyrights and patents--they can last forever. However, to enjoy the rights granted by a registered trademark the owner is responsible for enforcing it. If trademarks are unenforced for a number of years then they are considered abandoned and the words and images can be mimicked by anyone by any means.

The law basically forces Mattel ad Hasbro to take action of some kind. If they did not, then they'd lose their rights to scrabble as it appears now, and competitors would be allowed not only to make their own online knockoffs, they could reproduce the board game, complete with the "scrabble" name. Now, was it the RIGHT action to be threatening? I don't think so. I don't think it would "set a bad precedent" to have approached these developers with an agreement on trademark licensing and so forth. These brothers in India were not motivated by malicious intent or even profit; they were merely Scrabble enthusiasts and were enterprising enough to adapt the game into a Facebook application.

It's somewhat analogous to hackers discovering system vulnerabilities and exploiting them out of curiosity, just to create mischief, and later being hired on by owners of those systems as a consultant. It has happened before and it hasn't set a bad precident; there aren't huge legions of hackers out there deploying mass exploits in hopes of extorting employment out of their actions. I think it's simply a strategic misstep on Mattel and Hasbro's parts, as they seem to trail the trends in terms of on-line business.

Re:Another Example Of Indian Theft, Lack Of Innova

[Speck'sBacon]

Try pachisi, the Indian game used as the basis for the Western games Parcheesi and Ludo. Or if you want to go even more classical... chess.

Flagrant violation of copyright law?

[torstenvl]

Slashdot is supposed to be about news. I was wondering if we could get a link to the ruling that it was in violation? The fact of the matter is that discovery has not been performed, not all briefs have been submitted, trial has not begun, and rulings on the merits of the case have certainly not been handed down.

It is not the place of random story submitters to make pronouncements about facts and law when they know nothing about either. Facts will be revealed as the case unfolds. As for saying what the law is, don't go spouting off without pincites, k punkin?