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Scrabulous goes poof

July 29th, 2008 (Visited 2982 times) Tags: hasbro, scrabble, scrabulous

Scrabulous, the Facebook app that cloned Scrabble, has been removed from Facebook for US and European users. Apparently because Hasbro pushed Facebook hard enough, now that they have launched their own official version.

It’s still there for other countries, because outside those territories, Mattel has the rights.

Now, I haven’t seen enough on the case,so I am curious about what IP law is being used, exactly. I suppose there’s a trademark case, since there’s a reasonable chance of confusion. I see copyright mentioned, but usually you cannot copyright game rules (people used to patent game designs, back when!). And the DMCA was invoked, according to this article. Anyone know?

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12 Responses to “Scrabulous goes poof”

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Game design lessons: Scrabble and Wordscraper « Words on Play wrote on August 3rd, 2008 at 8:45 pm:

[...] to keep the Scrabulous legacy alive. I am not going to comment on the legal issues, as others have done already. Rather, I’d like to explore what the comparison between Scrabble and Wordscraper [...]

Inside Social Games » Blog Archive » Game Design Lessons: Scrabble and Wordscraper - Tracking the convergence of games and social networks wrote on August 4th, 2008 at 7:29 pm:

Reader Comments

Marcel Beaudoin said on July 29th, 2008 at 9:29 am:
It might have been copyright on the design of the board. I played Scrabulous on Facebook, and the game table was identical (or if not identical, close enough that it would fool the casual player) to the official Scrabble board.
Sonjaya said on July 29th, 2008 at 3:32 pm:
It was the combination of letters and point values. Scrabulous used the same points per letter and that violated the copyright.
Kim said on July 29th, 2008 at 3:44 pm:
I’ve got a post up with the details:
http://www.kimpallister.com/2008/07/scrabblescrabulous-scrap-specifics.html
Eolirin said on July 29th, 2008 at 11:38 pm:
Hmm… I do have to wonder where the division between game trappings and game rules are. I’d think that things like the tilecounts are more game rules than copyrightable expression of those rules. Yet it seems tilecounts are part of the copyright infringement?

Am I looking at this wrong? I mean, I can get the board design, kinda, and the color of the multipliers and the other little things like that are definitely more fluff than crunch… but some of this seems a little grey to me.
KevinMc said on July 30th, 2008 at 8:05 am:
Copyright infringement is pretty each to design around in this case. While the game board might itself be considered a “work of art”, and covered, the simple act of changing the text on the board, the colors used for spaces, the number of spaces, and/or the layout of the board would generate a new copyrighted work.

Trademark is a bit stickier, and is probably where they were on more solid ground here. In a trademark case, the owner is trying to prove that the offending product is deceptively similar enough that it could be confused with the owner’s mark, or could devalue the mark.

Let’s take a look at Mythic vs Microsoft for one example, over MS’s canceled game “Mythica”. Mythic sued them over the use of a deceptively similar name. Even though the word Mythica was not specifically trademarked, Mythic had a strong case because the two names were so close, and were being used in the same business. Microsoft settled by giving Mythic rights to the name, the websites, and a bunch of other IP – a total win for Mythic, in essence. (http://rpgvault.ign.com/articles/448/448277p1.html and http://news.gamewinners.com/index.php/news/944/)

Trademark law is a very poorly understood but exceptionally powerful branch of business and IP law.
Eolirin said on July 30th, 2008 at 7:21 pm:
I can see why they’d want to have grounds for copyright infringement though, since I don’t believe DMCA allows takedown notices for Trademark issues alone does it?
KevinMc said on July 30th, 2008 at 9:43 pm:
Just scanned the actual DCMA law to be sure, but the DCMA does not mention trademark law whatsoever. It IS the “digital millennium COPYRIGHT act”, after all.

Anyone who is bringing suit for trademark violations under DCMA does not have a clear understanding of the law they are attempting to sue under.

So in one sense, you’re correct in that the DCMA does not allow takedown notices for trademark issues. In another sense, you’re wrong, because trademark law itself allows you to get a cease and desist notice enforced, and even sue for damages, against someone who unlawfully infringes upon your mark.
Eolirin said on July 30th, 2008 at 10:41 pm:
Well, sure, but that’s *harder*

The DMCA takedown doesn’t even require any real court oversight in terms of the notice going out. It’s up to the person being hit by it to prove that there’s no violation going on. The Trademark cease and desist requires demonstration of proof on the case of the person bringing the suit to court; it’s a higher bar to cross.

You obviously want both in a case like this, since the Trademark violation can still progress regardless, and having even a touch of copyright mixed in lets you shut the target down really fast with the take down notice. Even if the copyright aspects are defeated in court, the take down means you’re offline for the duration. No waiting around, no injunctions to file, just a notice informing the host and bam, no more content till the legal situation settles.
KevinMc said on July 31st, 2008 at 11:22 am:
The DMCA takedown doesn’t even require any real court oversight in terms of the notice going out. It’s up to the person being hit by it to prove that there’s no violation going on.

Not quite.

The owner of a copyright or trademark can always send their own “cease and desist” request to a person they believe is infringing, DMCA or no. And the person who receives that letter can always refuse to comply, DMCA or no. A person accused of infringement is always innocent til proven guilty; the accuser must prove that infringement is going on for any IP case, including DMCA ones.

The difference is that the DMCA gives the infringer certain protections in many cases, IF they respond to the initial request by taking down the offending material in a timely manner. So whereas an ordinary copyright infringement is ALWAYS at least a $30,000 fine in statutory damages, a DMCA violation might not be a fine at all, if the person responds rapidly by removing the offending materials and qualifies for those protections.

DMCA protects hosts and such from prosecution from certain copyright violations. In many ways, it is MUCH more gentle to the offender than the regular Copyright Act. In other ways, this generates potential for problems. Because taking the material down right away removes any liability, sites are encouraged to take the stuff down even if it is not a copyright violation! Take, for instance, cases in recent years where TurboSquid has been ordered by Ford, Boeing, and a number of other car and plane manufacturers to remove from their site all models of those companies’ designs.

There are no real legal grounds for such a claim. In fact, there is a great deal of precedent in other art forms such as paintings for the artist to be able to resell artistic reproductions of an actual object, even if that object is patented or trademarked. But, Turbosquid has repeatedly pulled everything they are asked to, because in so doing they dodge any chance of liability. And so these folks are left unchallenged, even though the claims they are making are unreasonable. That’s one of the biggest dangers of the DMCA – that people will use it as a fear weapon to take on extra powers and rights which they should not actually have.
David said on August 6th, 2008 at 2:47 am:
“It was the combination of letters and point values. Scrabulous used the same points per letter and that violated the copyright.”

That’s not copyright-related. Copyright refers to the duplication of a fixed work, and thus (as Raph mentioned) can’t be applied to things like rules. You can copyright the specific text of your rule system, but not the concepts behind it.

That said, I think this was taken down under the ancient legal principle of “this will cost you $100,000 in legal fees to fight”. Sure, Scrabulous could probably have won in the end if it came down to it… but that’s not guaranteed, and would take a long time and a lot of money.

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