Our Scrabulous Affair

(image courtesy of Flickr user allyrose18)

By now we’ve all heard about the Hasbro/Facebook/Agarwalla brothers fiasco surrounding the popular Facebook application Scrabulous. If you haven’t, take the time to click the Wikipedia link and get familiar. People have been asking me to comment, so I’ll take this stormy Sunday as a chance to chime in. I’ve got a proper (amateur) analysis, and a very special treat from one of my favorite bands.

IP guru Wendy Seltzer broke down the issue at stake in her blog post here, from way back in April. As she says, at the heart of this issue is the issue of how intellectual property applies to board games. If we can understand what IP applies to board games, we can see how the law will treat this use. If this were protected via patent (as the scoring element of it was: US Patent 2,752,158), it would have expired at this point. Trademark infringement would be an issue should the similarity in brands create, “confusion in the marketplace.” Hasbro’s case is stronger here with the common “Scrab-” opening to both words, but the brothers Agarwalla need only change their name to dodge this issue (as they did with their new approach, Wordscaper).

Which brings us to copyright. As always, copyright is the term being tossed around in the debate most frequently (see the official Scrabble presence on Facebook). Copyright, however, and as often forgotten in these cases, only applies to a handful of specific (although far reaching) expressions of ideas. Ideas themselves are not protected, such as the “idea” of a game assembling words from tiles. Even among the expressions of ideas that are out there, a few expressions are notably not protected. This is not by mistake. Board games aren’t on the list (neither are fashion works, but that’s a post for another day). Remember, these are deliberate exceptions to stave off situations where corporations are extending their rights beyond their means to squealch new input, which is bad for the cultural health of the country. You can’t just “copyright” Scrabble – first, it’s not a verb, and second, it’s not a protected expression. Now, this is not to say that Hasbro has no copyright claim here. As the Copyright Office suggests, there are visual elements of the game that will have a claim, such as the colors and designs in the board, box, and instruction manual. Wordscraper seems to have been intentionally designed to dodge these “visual elements,” whereas Scrabulous seemed fit to directly copy the Scrabble board.

So, in short, Hasbro has no viable patent claim, a very weak copyright claim, and, at best, a modest trademark claim. This is how the law views this situation. But ignore the law for a second. Let’s look at this from a professional and personal level.

What the Agarwalla brothers created, in a story not unlike the early years of the RIAA copyfight, was a program that introduces the world of word games to a vast body of young adults that otherwise would not be interested in word games. This is good for all people who work in word games: Balderdash, Boggle, and, yes, Scrabble. Now, there are a multitude of rumors that Hasbro did see the value in Scrabulous (and, perhaps more importantly, its legion of fans), and did in fact make an offer to buy out the program. To do so would be most advantageous for Hasbro; it opens the door for further franchising on the “Scrab-” name. But even if they didn’t make an offer, or the offer was reasonable, they should preserve that group’s interests in word games by allowing Scrabulous to prosper. Offering a sub-par substitute (and we must see the official Scrabble Facebook app as such) lowers the tide once risen by the popularity in word games brought on by Scrabulous.

I need only cite myself as an example. I have never been into Scrabble (I do, however, enjoy impromptu rounds of Balderdash). I joined Srabulous as a classic network externality: several of my friends started playing and challenged me to games. Since, I have actually crossed over and played a few games of actual Scrabble, on an actual Scrabble board, that someone actually paid for. That helps Scrabble. The lawsuit has had the opposite effect. Now there are talk of boycotts, and not just from fringe crazies. Serious people and organizations are carefully and methodically (and, might I add, humorously) calculating how they can best stick it to Hasbro. This certainly does not help that company.

One particularly great contribution to that effort is a rare new song from the greatest UnPop this side of Lincoln, MA: Jim’s Big Ego (on a personal note, these guys are desert island band for me. Do make a point to see them). Last Wednesday they posted a song they wrote about the issue: “Our Scrabulous Affair.” According to their Facebook page, they will be recording a new version and making it available for a free download. Until then, go to the link and check it out on the Facebook page. I find the last verse especially poignant (61 points):

It’s 3AM (that’s not a word)
I’m staring at my empty Facebook (also not a word)
How will I go on?
Unless I move to Argentina (60 Points)
I wish Hasbro hadn’t discovered
Our Scrabulous affair
It’s not really cheating
It’s not really cheating
Only copyright infringement (68 Points)
What’s the big deal? (5 Points)