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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."
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.
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.
-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
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.
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.
Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
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.
(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.
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.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.