Scrabulous and IP Wars

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When I twittered Rory Cellan-Jones to ask why he didn’t mention Wordscraper in his blog post about Scrabulous, he replied “cos i couldn’t be bothered!” Years from now, when British journalism has finally breathed its last, this phrase will be engraved on its tombstone.

The thing is, the Wordscraper thing is about the most interesting thing about this whole sorry saga. Cellan-Jones misses the point. Badly. While Scrabulous did indeed cross the line by using the same look as Scrabble and using a name that was far too close to a trademarked property, the fact is you can’t copyright an idea and they have been free to set up an almost identical game.

Intellectual property law is at its murkiest when it comes to games. History is littered with people who sold their ideas to companies before their games made it big, least of all Scrabble-inventor Alfred Butts. How do you make money out of a boardgame when people can replay it countless times? Ironically, the answer that Mattell and Hasbro have come up with is to produce a whole range of merchandise. You can buy the official Scrabble dictionary of course, and a special turntable for your board. You can get the deluxe edition and if you want a really big game why not try Super Scrabble (unbalanced in my view)? In a hurry? Try Scramble. On the move? Try Travel Scrabble. They’ve even produced a pink edition to raise money for breast cancer research. Scrabulous hardly dented that market – if anything it helped it.

The point is, they’ve already realised that the real money to be made is not in the game itself but in creating a range of branded tat for the fans to buy. With that in mind, getting Scrabulous banned looks like a pretty bad business move. It probably won’t cost them much, but it has created a lot of ill will and has been built around getting people to sign up to their own, flash heavy and vastly inferior Facebook app. Meanwhile, the Agarwalla brothers appear to have got away with it. The big guys may have won, but it is a pretty empty victory.

Ultimately, this isn’t how big businesses are going to survive in the global internet marketplace. The Agarwalla’s may have overstepped the mark, but it isn’t hard to stay on the right side of the law. Frankly, if Mattel and Hasbro had any sense, they’d encourage developers to compete to produce the best internet version of the game, offering a license that would allow people to publish the game with their blessing, so long as it included a prominent link back to the official website (admittedly, contractually they may be prevented from doing this even if they wanted do but given how long it took their developers to produce a Facebook app and the poor job they made of it, it looks like we can safely add this to their list of cock ups). Think of the free advertising! Ironically, at a different end of the empire, Hasbro has been experimenting with something very similar. Their Wizards of the Coast publishing arm, which produces Dungeons and Dragons, positively encourages other publishers to use their system (albeit with restrictions, something which has admittedly caused some bad feeling). The result was to take a failing brand and catapult it right back to the top of the industry.

Not only are intellectual property laws becoming increasingly hard to enforce, in many ways they are becoming a serious hindrance to making money, which is what they exist to do in the first place. Properties such as boardgames that were devised in the middle of the 20th century (and superheroes for that matter) are a particularly interesting cultural battleground because to those of us who have grown up with them, they feel like public property. Ultimately, this becomes a question about who owns popular culture. The corporates won’t be allowed to win that battle, whether they want to or not.

10 thoughts on “Scrabulous and IP Wars

  1. Two thumbs fresh for this post. Especially the first paragraph. Still, it’s not the first time Rory has spectacularly missed a point, and I’m sure it won’t be the last. After all, he’s only human; just like the rest of us.

  2. I totally stand by the Scrabble manufacturers on this one. I do not understand how you can claim that “you can’t copyright an idea” – what?!?! Of course you can! Claiming that intellectual property is a ‘murky’ area is all well and good, but Scrabulous is a blatant copy and a breach of copyright and deserves to be hammered. If that ultimately hurts the original Scrabble manufacturers, that is their problem.

  3. do not understand how you can claim that “you can’t copyright an idea” – what?!?! Of course you can!

    El Fat – do you just comment here with the sole purpose of allowing me to make you look stupid. Let me quote you from the UK Intellectual Property Office website:

    Copyright does not protect ideas for a work.

    Wikipedia has a neat explanation that delineates where copyright does and does not apply:

    Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed. For example, the copyright to a Mickey Mouse cartoon restricts others from making copies of the cartoon or creating derivative works based on Disney’s particular anthropomorphic mouse, but doesn’t prohibit the creation of other works about anthropomorphic mice in general, so long as they’re different enough to not be judged copies of Disney’s.

    I explicitly state above the Scrabulous crossed the line; Wordscraper on the other hand probably does not. And the point is that Scrabulous didn’t hurt the manufacturers of Scrabble – no one is suggesting it did. If anything it boosted their sales.

  4. The proper form of protection for an idea, such as a set of game rules, is not copyright, but patent. And patents only apply if it’s innovative, and only last 19 years.

    Copyright applies to the expression of the idea, ie the words of the rules, but not the concepts, the actual physical board, not the logical meaning of the board (so you could make a circular Monopoly board that played the same as the real one).

    The rights-holder can also trademark the name; scrabulous is definitely infringing there: there cannot be any doubt that it’s seeking to trade on Scrabble (TM)’s reputation.

  5. Hey – you tweeted me after I’d written a light-hearted blog, I replied in a light-hearted way. Wordscraper was not the heart of the story (though your message encouraged me to mention it in a later post) and I think that suggesting my words in a throwaway tweet are somehow an indictment of the state of British journalism are – how shall I put this – just a little pompous….

    By the way, enjoyed the thoughtful analysis of IP in this post.


  6. Rory, I was going to let this lie, but since you didn’t…

    I don’t think I was being pompous since I wasn’t being exactly serious. Either way, it wasn’t exactly the most constructive answer I’ve ever received – some might even say pompous – and I’m frankly flabbergasted that you assumed that Twitter was as private a medium as you appear to have done.

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