Protecting your rights can be a long fight
Updated 7/29/08: Scrabulous has been disabled in Facebook for US and Canada users.
Hasbro, owner of the trademark for Scrabble, filed a lawsuit against the creates of Scrabulous for trademark infringement via the Scrabulous Facebook application. A DMCA was also sent to Facebook to remove the application. I do not use the application (I rarely use Facebook) so I don’t care from a user standpoint. From a business standpoint this interested me. Electronic Arts and Hasbro formed an alliance and created a Scrabble application for Facebook that was launched recently. It still makes on ponder why they waited so long to do something. Scrabulous was launched on Facebook in 2006. This article explained a bit why this was:
Mr. Blecher said that EA had a “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.
This puts an entirely different spin on the general news floating around. Hasbro/EA didn’t all of a sudden, because they launched their own application, start legal proceedings. EA attempted to work with the Scrabulous team and decided to create their own application they could control themselves. That’s not abnormal or even odd since they were giving permission to create an application based on the game. The important part is EA tried to work something out.
Which means the Scrabulous team knew eventually they were going to be in trouble and continued to keep the game on Facebook.
What perplexes me even more is why Facebook allowed the application on their site in the first place? Is it that easy to have trademark/copyright infringement items placed on their service? With something as obvious as Scrabble why didn’t someone from Facebook ask that all so important question: Does the Scrabulous team have permission from the rights holder to create the game? If so, provide proof.
It’s that simple.
Another question: if the big guys have this much trouble maintaining their rights with Facebook does the little guy have a chance? Another question: how many other copyright/trademark violations are on Facebook?
One could argue that there is a debate whether Scrabulous indeed infringes on Hasbro’s trademark. When users describe it as Scrabble on Facebook I would say yes, there is indeed a problem.
I feel for all the people in mid-game because (to my knowledge) there isn’t a way to port the data over. For all of those that create applications, designs, content, etc. I hope Facebook takes it down quickly and allows the Scrabulous team and Hasbro to duke it out in court. Creation of games, applications, designs, content, etc. relies on the ability to maintain ownership over the rights to the item(s) created.
Oli # —
You’re putting “rights” on a pedestal. They’re not the ultimate savers of intellectual property.
What laws do you think require the Scrabulous brothers to ask permission from Hasbro? Patents? The game concept is 70 years old so that’s unlikely. Trademark? Possibly but that is remedied by a name change. Copyright is the only thing that comes close and, again, that’s easily circumventable.
The argument from Hasbro has been that they infringe the board by copying the style pretty exactly. If they were to use different colours and give the modifiers different names, that should be a significantly different board. Remember you cannot copyright an idea, just its expression.
If they were using a scan of the board and tiles, calling it Scrabble and this were 60-70 years ago, you (and Hasbro) might have a compelling case. But it’s not…
So why would Facebook kill an app that gained 200k users in its first month over a frankly dubious and debatable copyright infringement claim? They have millions of users now and there are users who only signed up to Facebook to play Scrabulous. They have a vested interest in holding off until there’s a proper, legally binding solution - by which time, there should be a licensed competitor.
Tyme White # —
But they didn’t circumvent it did they Oli? No. Look at your response. It’s full of what they could have done, what they should have done.
None of it is what they did.
Facebook didn’t have the growth they had in 2006 that they have today. My entry was about back then allowing Scrabulous, the touted Scrabble clone, on their servers as is and the ethics of that decision. Facebook had zero vested interest in anything when that app was first placed on their servers and that is what I am questioning. To me, if you have to make justifications like you just did (”well, if they change the colors up more, or did this, and did that…”) then ethical lines are being crossed.
Make the adjustments in the first place so the problem never arises.
Tyme White # —
And let me be clear, the reason why I question this is because the very last thing “I” would want is to be in the position Facebook is in now: having to spend resources defending the right for an app that isn’t theirs to remain on their servers because their users have become attached to it. Sorry, that’s not my thing. I’d create my own that clearly would be legally okay before I allowed my company to have a vested interest in another company’s app.
But that’s me…..
Oli # —
Aw man, I thought I posted another comment but I nuked the tab too early - hope I can remember it all =(
Scrabulous has tweaked their look and board dozens of times, even before Hasbro started gurning at them.
There’s no ethical debate on Facebook’s side. Why not? Safe harbour. This is your argument against editing comments and the same thing stands for other online services. The Viacom vs Google case is what would happen to Facebook if they got involved. Once you become judge, jury and executioner in one case, you’re legally liable for everything else.
Facebook are playing it smart and waiting for the proper authorities to come to a decision. If Hasbro win, they can issue Facebook with an irrefutable “take down” notice, and Facebook doesn’t get tainted (or sued into oblivion).
And Scrabulous isn’t hosted on or anywhere near a Facebook server. They link in with an iframe.
Tyme White # —
Oli, if Hasbro/Mattel did not fight this, they would lose their rights. It’s a no-brainer that if the app became popular Hasbro would come after them. Facebook is following their legal rights by waiting for a response from Scrabulous but they were issued a DMCA so they can’t patiently wait for this to be resolved in the courts:
In the end the people who lose out are the users - because they are the ones that, in the middle of playing the game (and becoming attached) will have to suffer. That’s why I would not have allowed the app anywhere near anything I owned because the outcome was obvious and I wouldn’t want to spend resources fighting someone else’s battle and I question why Facebook (in 2006 not 2008) would place themselves in this position in the first place. And I definitely wouldn’t want to deal with my users being pissed off - because they will be pissed off.
If the users come up anywhere in this scenario they’ll work out a way to export the data out of Scrabulous and into Hasbro’s version so they can continue to play while this works its way through the court system - which could take months. In the event Scrabulous wins, the app could have its access reinstated and, from what I’ve read, people will go back to it because it is “better” than the Hasbro/EA one. It’s complicated because Mattel is making one as well since they own the rights outside the US and they’ve sued Scrabulous too. Obvious this was coming. Honestly, I thought the Scrabulous people would make whatever money they could until it did and quietly close it down.
So let’s be clear on what happens if Facebook doesn’t comply:
They tried to remain neutral but they aren’t in a neutral position anymore. You’re arguing this from the position of Scrabulous - their “rights” in creating the app. I’m from Facebook’s position - being caught in the middle of something that has nothing to do with them. I would have avoided it (as Facebook), you wouldn’t have. We’ll see what happens.
Marc Edwards # —
Should Facebook be responsible for background-checking every single app that applies? That sounds like a huge and expensive task, with little or no benefit.
It’s much better to leave defending IP up to the IP owner.
I don’t see any issue in waiting for a cease and desist letter, and email or a phone call for grey areas. It’s then up to the application creator if they think they’re not infringing IP law or if they decide to drop the project. This (of course) only works with free projects. If you’re charging then you’re likely to be up for damages.
Signed,
Co-creator of the only official OS X Lava lamp widget, which started life as a bit of fun, was taken down, then rose from the ashes with the copyright owner’s blessing. If you care to read more, the full story is here: http://islayer.com/blog/?p=99
Tyme White # —
Just an update that Scrabulous has been disabled by the Scrabulous team for people in the US and Canada. Mattel (who own the other rights) have sued as well but as of now the only the US and Canada are blocked.
Marc - I didn’t see your comment, my apologies. No, I don’t think every app can be checked but something as obvious as Scrabulous - again it was a no brainer that this was going to happen. My point was, as a business owner, I wouldn’t have touched it because I know it would be problems in the long run. Now there will be hundreds of thousands of pissed off Scrabulous users that cannot play in Facebook (although the Scrabulous site is working for now). I personally wouldn’t want to be in that position and wouldn’t have allowed the app that I KNOW will cause me problems in the long run. Especially since Facebook doesn’t need Scrabulous to be successful (more like the other way around).
3by9 » I didn’t think…. # —
[…] Duh. I mean seriously. Duh. No brainer. Please. Just like Hasbro wasn’t going to protect their rights…right? […]
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