Image via WikipediaA few days ago, an invite popped into my Facebook account. Not the sort that entices you to explore your darker side by turning vampiric, or that calls you to save the world by growing virtual plants. This one beckoned me towards a new version of that classic divertissement – this time by the folks who own the brand themselves – Scrabble. But I do not write this to tell you of my application collection.
Some of you may know of my fascination for the game and my keen following of the fate of Scrabulous – a Scrabble-lookalike online version launched two years ago by RJ Softwares, run by Rajat and Jayant Agarwala of Kolkata. (see SpicyIP posts here and here).
Earlier this year, after Scrabulous/the Agarwalas reported that they had been sent a legal notice by Scrabble/Hasbro, there was little doubt that closure was imminent, but speculation was rife over what would happen next: would the US toymaker attempt to buyout the Indian website, or would the existing “illegal” game be substituted by an official counterpart?
So last week, it was no surprise to hear that Hasbro had finally launched the “official” casual gaming version of Scrabble, and had also gone ahead and sued the Indians for copyright and trademark infringement, and unfair competitive practices. It has also moved court to remove the Scrabulous game from Facebook, and disable the Scrabulous.com domain name (which supports the game from an independent website, outside of the networking site).
An NYT blog adds that Electronic Arts (EA), the developers for Hasbro who designed the new e-version of the game, had “a brief conversation” with the Scrabulous creators about working together but that ultimately the company decided it wanted to control the game itself and develop it across various technology platforms.
Some issues that are of interest in this saga:
1. Hasbro has notified Facebook under the Digital Millennium Copyright Act, asking the site to take down Scrabulous. The DMCA allows service providers (e.g., Facebook) safe harbour for copyright-infringing third party material, as long as it has not actively sought for such material or profited from it. At present, Facebook seems reluctant to want to remove the Scrabulous application while the matter is still under litigation. The application, by the way, is still online and working. Facebook’s continued silence may mean it has to forego this immunity under the DMCA if it fails to respond to Hasbro’s notice.
2. Hasbro owns Scrabble rights only within US and Canada. Mattel, which owns the rights for the rest of the world, has not joined the lawsuit. Does this mean that if Scrabulous loses this suit, it may continue to allow IP addresses from outside US and Canada to access its version?
3. The Agarwalas have been mysteriously silent on the lawsuit. Their website continues to display this message: Scrabulous was created by Rajat and Jayant Agarwalla, from Kolkata, India. After not finding a decent online environment to enjoy word games, the brothers decided to create their own website so that users from all over the world could enjoy!
How will they respond to this? Note that, as pointed out in an earlier post, Scrabulous is fairly blatant in acknowledging its similarities with Scrabble: it hyperlinks to the board game’s actual rules on its website; has a similar sounding name; and has a board that is patterned identical to the Scrabble board. Attempts to defend the idea of the game (rules, board, etc.) will be difficult. The brothers perhaps have some rights of authorship to the software design, and can attempt to look into the source code behind Hasbro/EA’s official version to claim some due.
On an endnote: If you are not word-inclined, the Independent here lists a handful of other applications for the time-wasters of this world. (May our tribe increase!) Oh, and by the way, I didn’t accept the invitation for Scrabble. I still play the Indian version, and if anyone wants to challenge me to a game, they are welcome. And no, I don’t cheat.
How about exploring questions such as the idea/expression dichotomy and what that would mean in case of toys, board games, etc.? Does Scrabulous actually cross from the realm of idea into expression? It does copy the board and the point system, but it doesn’t copy the rules (it points people to the official website for that) which are the most clear-cut “expression” in this case. Does copying the board’s layout, etc., amount to copyright infringement under Indian law? Under American law? These are interesting questions that could perhaps be addressed separately.
Please note, I am not making any claims, but am pointing out that fundamental issues such as idea/expression dichotomy are often forgotten. If they aren’t discussed more often, there are greater chances of more things slipping from the realm of ideas into that of expression. This is a tendency that has to be avoided. An interesting instance is that in the 19th century, translations were not considered copying of expression by American courts. Now, even quiz books based on popular sitcoms (like a quiz book on the popular sitcom “about nothing”) are considered violations of expression (in the form of “derivative work”).
Also, a few of my comments (under the name “Anonymous Coward”), some written many months ago, still haven’t appeared on the web site. What gives?
Dear Anon Coward,
I’ll deal with the last part of your query–please let me know which comments of yours hasn’t found its way to the website? As you may have realised, owing to the increasing number of spams and other irrelevant comments advertising some other website, we’ve activated the “moderation” mode for comments. So any comments that are not related to the topic or amount to ad hominem attacks that do not address the merits of the issue will not be posted. If your comment falls within one of these categories, we don’t publish it. But if it doesn’t, you will find it there.
@shamnad basheer:
At least three comments of mine haven’t made it to your comments section. Two of them were part of a long conversation I was having with J. Sai Deepak about medical patents (http://spicyipindia.blogspot.com/2008/05/choking-patients.html). One of them didn’t show up, so I submitted another one, but that didn’t show up either. Since both of them were of considerable length, I lost patience and didn’t try a third time. I don’t recall where the third instance was, but if you could search for comments from “Anonymous Coward”, you’d probably uncover it. Thanks, btw.
And, I despise ad hominem attacks as much as the next reasonable person. Quite obviously, I do not consider my comments to be either flame-baiting nor spam. If those were the reasons for my comments being rejected, I’d be very surprised.
Thanks for your excellent comments, AC (if I may address you thus).
From what I gather, under both US and Indian law, the rules, being the idea of the game, cannot be copyrighted. The board, and the tiles, and by extension, the scoring system, can be protected. However, even when it comes to the rules, I put across something else to you.
Scrabble, as you well know, is as much of a strategy game as it is a word game. Now, both the dictionaries that Scrabulous allows (SOWPODS and TWL) are based on the Official Scrabble Players Dictionary and Official Scrabble Words. Both of these are presumably copyrighted.
At the same time, the strategies that players can use are circumscribed by the rules of the game itself, which introduce some finiteness to the paths that the game can traverse.
I agree that Scrabulous itself does not “copy” the rules, and merely directs to the rules written elsewhere. But it makes up for the absence of self-written rules by designing an application that mimics/embodies the rules of the original game. That is, you cannot play a legitimate move unless you follow those rules. A very simple example: you cannot have more than seven tiles in your possession. This, together with the tile distribution (both copied from the original game), limits the length and variety of words that you can construct, and of course, ultimately, affects the maximum score that you can obtain – thus, effectively replicating the original in its entirety.
Would this, in your books, amount to being beyond the realm of ideas and into that of expression?
Where I think things might get iffy is to what extent Scrabulous could be considered either a derivative or an original work. (contentious issue, there too). When I said that the Agarwala brothers could stake a claim to authorship rights over the application code, implicitly, I meant it in this context. But I suspect any arguments of this nature are fairly distant. Immediately, at least, I think a jurisdictional objection to the filing of the suit may arise.
And, an unrelated update: Scrabulous is no longer available to Facebook users in the US and Canada. Using proxy servers, however, apparently offers a solution to those with US/Canadian IP addresses. So the safe harbour immunity for FB still stands.
dear anon coward,
did you get a note stating that you’re comment was being held up for moderation. i suspect not–since it appears that we enabled moderation only after that particular post of sai deepak. but if you did get such a comment, please let me know.
Since my books are bereft of all references to case law, I’d like to look solely at first principles, and not at how courts in various jurisdictions have interpreted them.
Doing that, I don’t see how the realm of expression is even touched in this case. Embodying the rules described elsewhere is not copying of expression. It is embodying the rules described elsewhere. (Breaking my resolve not to use case law, I would argue that) Baker v. Selden is a most apposite case on this point.
All that they seem to have copied, and rather blatantly at that, are the ideas behind Scrabble. They haven’t made a game similar to Scrabble. They have simply re-made Scrabble for Facebook, for a different medium. Is this infringement? I still am not convinced that it is, as it seems to me to only be copying of ideas.
(If recent cases are consulted, then most surely it is infringement, being derivative. But if we refer only to first principles, I am not so certain.)
What then, it may be asked, would be copying of expression underlying Scrabble? I really am not sure. Other than the rules, and things like colour of the board, etc., there seems to be very little to protect. The board and the tiles, are all functions of the rules. It seems to me that as long as the wording of the rules themselves aren’t copied, and only acted upon, no copyright is infringed.
A board game is more akin to an accounting system (Baker) than a dramatic play (Nichols), and should
Some asides: Things like allowing only words in the Official Scrabble Players’ Dictionary, cannot by any stretch of imagination amount to infringement. I can very well create a game called “Name That Disease”, and only usage of diseases defined in the eleventh edition of the Concise Oxford English Dictionary (which is under copyright). I wouldn’t be violating anyone’s copyright by doing so.
I agree with you, that immediately jurisdiction would be the largest issue. But I think that the issue of idea/expression dichotomy in board games deserves a post all to itself, and should be explored in greater detail.
To avoid these kinds of probems, perhaps the way ahead for big corporate entities with such popular products is to license out all forms of the product, unless of course creates and sells them itself. When this issue had first come up I remember posting on my blog that Mattel and Hasbro should either themselves create or license someone to create a mobile phone version of scrabble. Of course back then selfish interest was involved (I really needed something to do in class. Especially in Prof. Shankara Reddy’s class).
I raise a very basic question, and my question may seem dumb to some, but please bear with me.
The law may benevolently bestow upon us our rights. But in the end, the choice to exercise the right or waive the same rests solely on us. For example, I have a right to speak my mind, But whether I spek my mind or choose to keep it shut is my own prerogative.
The natural corollary, is that when I choose to keep shut, it is presumed that I waived the exercise of my right. In other words, I chose consciously not to exercise it. Now, let us assume that such “shutting up” was not conscious but merely because my mind was on something else. In such a case, can I come back and claim my right?
US has been technologically savvy for far much longer than India. In such circumstances, if Hasbro/EA/Mattel ignored to utilise one of the most upcoming means of exercising their rights, they should suffer. in this age of Digital Rights Management Debate their action, to me, amounts to waiver to exercising their rights.
At the end of the day, had the Agarwalas not made money, nobody would have even bothered to take an interest.
Hi,
I’d written an article on this issue some time back that might be instructive on some of the themes AC raises.
http://www.icommons.org/articles/why-you-must-be-legally-licensed-to-host-fun-on-the-internet