So the Scrabulous application on Facebook is down, in response to a lawsuit filed recently by Hasbro, which owns the US rights to the Scrabble board game, and Scrabulous fans and users are up — in arms, calling for a boycott of Hasbro. So reports the NYTimes. I doubt that the boycott or related PR will come to much, but what do we make of the brouhaha from a broader perspective?
To recap: The IPTABlog has a copy of Hasbro’s Complaint. There are copyright and trademark claims in play, but Hasbro’s IP rights need to be unscrambled. (Frank Pasquale took an earlier whack at this, as did Wendy Seltzer.) The name “Scrabulous” may infringe on trademark rights in the name “Scrabble.” The colors and layout of the Scrabulous “board” may infringe on trade dress rights in the Scrabble board, and there may be a “total look and feel” copyright infringement claim based on the equivalence of the two boards. The play of the game, however, is likely beyond Hasbro’s control; the rules might be a functional idea, or a method of operation. The Complaint fudges some of this. It alleges infringement of copyrights in the Scrabble “game,” by which Hasbro appears to include both Rules (as to which it registered a copyright, in 1948) and board.
Still, on balance, I think that Hasbro deserves a win if the case were litigated to judgment; the name “Scrabulous” would likely be found to be confusingly derivative of “Scrabble,” and the boards do resemble one another, though they are hardly identical. Still, if the producers of Scrabulous changed the name to “CrosswordMania” and changed the color scheme of the Board, then they would be on safer ground. Not to say safe ground altogether, but safer. Hasbro’s IP rights don’t extend to the idea of online crossword games.
So what’s the problem? One way to look at the emerging anti-Hasbro backlash is that this is pirate culture run amok in a different online setting: Folks who want to get proprietary information for free. I think that’s not what’s happening. A second way might be to argue that there is a massive disconnect between the scope of copyright law and trademark law as understood by lawyers and judges, on the one hand, and as understood by non-lawyers, on the other. I think that’s not it either. A third hypothesis might focus on some version of the “romantic author” thesis: the Scrabulous developers were first and fast and clever in adapting Scrabble to the Internet; Hasbro was slow. The developers are plucky individuals; Hasbro is the big bad company. That’s part of what we see, but it’s not the whole story.
My take is this: This episode exposes some fundamental tensions in what individuals and social groups see as “the same” and as “different,” particularly when “same” and “different” relate to intangible things. These are basic questions in all IP doctrines: infringement of a copyright or a trademark or a patent requires a substantial degree of same-ness between the owned thing and the infringing thing. There is a clear and obvious connection between Scrabble and Scrabulous, but it’s not obvious to many people that the legal system should move from making that connection to drawing the conclusion that the two are, for legal purposes, the same. The concept of the game is the same. The name is related, but different. The board is related, but different. Probably most important, the medium — online, in a social network setting — is quite different than the medium — a table top — used by the creators of the original Scrabble. Add up those considerations, and it strikes me that we’re asking laypeople to make these same-ness determinations deliberately, at a purely conceptual level.
That’s difficult for many people, including sophisticated, educated people. All of us make same-ness determinations all the time. Doing that is essential to life. But much of those same-ness determinations are automatic and subconscious; most people aren’t used to thinking that way intentionally, and when they’re told to, especially when they’re told to at a purely conceptual level, they resist. IP lawyers may have an easier time with this. IP lawyers are pretty used to the fuzzy edges of “substantial similarity” and “derivative works” analysis in copyright and “confusing similarity” analysis in trademark, even if IP lawyers disagree on whether those legal concepts are coherent.
Is this the right way to look at the stakes of Scrabulous? I’ll be watching for same-ness issues elsewhere. We’ll see.