You can’t keep a good man with someone else’s great idea down. A while back, some enterprising young programmers created Scrabulous, a free online application which was later adapted for the wildly popular Facebook social network. As can be inferred from its name, Scrabulous was an adaptation of the long-celebrated word game Scrabble, allowing players to set up turn-based games against other Facebook users, which could be played without time limits, allowing folks to come back and take their turns whenever it became convenient. This was all offered free of charge, and became quite popular and widespread, clocking in at 840,000 Facebook pages as of October 2007.
Earlier this year, Hasbro (owners of Scrabble) sued the makers of Scrabulous, claiming that Scrabulous infringed on their property under the Digital Millenium Copyright Act, and demanded, among other things, that the Facebook application be shut down. Facebook and the Scrabulous creators eventually complied, and the application was shut down, paving the way for Hasbro’s own official — and free – Scrabble Facebook application.
However, today, a mere two days from the shutdown of Scrabulous, the creators have released Wordscraper. Wordscraper now uses graphical assets that are entirely distinct from the official Scrabble look, and contains slightly-altered game mechanics, such as the ability to design your own board with different configurations and sizes, differently-placed bonus spaces, etc. In essence, of course, it is still played just like Scrabble, and in practice, the creators are still offering free online Scrabble without Hasbro’s cooperation or permission; they just aren’t referring to it as “Scrabble” in any way. Where their own website once described Scrabulous as the best place to play Scrabble online, now the creators use vague, non-referential language like “It’s the only game on Facebook that allows you to play the game the way you want to!” “The game,” of course, is never quite described on the page; I think by now it’s assumed we all know what Wordscraper is referring to.
Legally, this may all be fine and dandy. As the AP’s Anick Jesdanun points out, “Ideas cannot be copyrighted, but expressions of ideas can. The case could turn on whether Wordscraper feels more like Scrabble or a generic board game based on words.” If John Grisham has taught us nothing else, though, it’s that what’s legal isn’t always right, and what’s right isn’t always legal. Let’s none of us kid ourselves: Scrabulous/Wordscraper creators Rajat and Jayant Agarwalla didn’t make their games because they wanted to design the best “generic word game” ever; they were trying their very best to imitate and emulate Scrabble. They made a game with the same rules and gameplay as Scrabble, which looked and was laid out like Scrabble, which had a name that sounded like “Scrabble,” and which they even once referred to as a form of Scrabble. Regardless of how well-designed their software was, of the niche that Scrabulous filled, or how much fun and joy it brought to its users, the Agarwallas were blatantly “borrowing” from Hasbro’s legally-owned property.
By the same token, Hasbro’s actions against Scrabulous were certainly both legal and ethical, though perhaps not the best path to be taken from either a business or reputation standpoint. Hasbro is well within its rights to enforce copyright law with regards to its intellectual property, and by some measure, has an obligation to defend its copyrights in order to maintain them. Further, Hasbro has every reason to become upset at an outside party enjoying the benefits of a property it has worked to produce and promote for over sixty years. Still, as Mashable’s Don Reisinger notes, “Two men from India own Scrabulous. Hasbro is a huge corporation that incurs billions in revenue every year. Don’t you think it might be able to get a bargain for Scrabulous and use all of its users to its advantage?” From a long-term business point of view, Hasbro may have flexed its legal muscles unwisely, squandering 840,000 potential users of the official Scrabble Facebook game, due to the other thing they are losing due to this maneuver: The good will of their userbase. Regardless of the legality of the issues, when a massive company picks a fight with a tiny one, there will always be an impression of bullying that is made upon onlookers, especially with gamers, who tend to have a fight-the-power conception of publishing giants as soulless machines and cruel “Big Brother” behemoths.
So, who is right in this instance? The Wordscraper transformation may certainly be sufficient in the eyes of the law, but where does the moral compass point in this case? At what point does an homage or a “homebrew” become theft, and where is the line drawn between public good and personal rights? When are ideas a creator’s own currency, and when should they be free?
GameCyte’s legal consultant reminds us that “One of the black-letter principles of copyright law is that you cannot copyright an idea. Selchow & Richter/Hasbro cannot prevent another firm from creating a crossword game, as such.” I tend to agree that this is a fair and just idea. True, the inability to copyright ideas may have the disadvantage of flooding our market with knockoffs and clones when a major idea takes hold: How many clones of Final Fight and Street Fighter did we play in the 1990s? How many times have you bought Tetris? How many flash games have you played in the last month which played exactly like Diamond Mine/Bejeweled/Chuzzle? On the other hand, this is a slippery slope; if we declare that a game mechanic can be copyrighted, how long will it be before killing an enemy by jumping on it is the exclusive domain of Nintendo, or before Guitar Hero sues Rock Band (and not just over hardware patents)?
So, it seems perfectly legal that the Agarwallas can make a game that is very much like Scrabble, but again, that’s not what they set out to do at the outset — they set out to make Scrabble. Their own initial efforts and language confirm this, and to pretend anything else was their intent is intellectually bankrupt. The fact that Scrabulous was free to use, was well-executed, filled a niche that Hasbro was not then involved in, and was quite fun to play, are the primary reasons why many are still siding with the Agarwallas despite this.
The entire situation reminds me of a similar problem I encountered when employed by a game designer. A while back, I worked for Catan LLC, the American arm of the game design company behind — you guessed it — the Settlers of Catan board games. At the time, I learned of a virtual game called “Settlers of Second Life.” As you might guess, someone had programmed a version of Catan into Second Life, duplicated the rules completely, replaced some of the basic game terms (”wheat” and “sheep” became things like “scripts” and “textures”), and were selling the game online for Linden Dollars. The Catan creators had not been contacted at all regarding the game, let alone asked for permission, and expressed their frustration at having no legal recourse against the imitator (primarily due to the then-nebulous laws surrounding virtual goods and real-money transactions).
The key difference in that case, of course, is the word “selling.” Given that Linden Dollars can be exchanged for actual legal tender, the creators of the Second Life Catan ripoff were potentially profiting from their use of Catan’s ideas, and, again, let’s not pretend they didn’t know exactly what they were doing — they named their game “Settlers,” after all. While the game mechanics may not be protected by copyright, these people were unabashedly attempting to cash in on an existing product’s popularity. I’m of the opinion that this makes them parasites and/or thieves, but that might just be because I know the Catan folks personally.
The counter-argument to be made is that these actions — both in the case of Settlers of Second Life, and Scrabulous — aren’t hurting anyone, and are therefore undeserving of scorn or legal action. A major factor in the laws surrounding trademark and Fair Use is whether the derivative work is damaging to the original, whether through a marked loss in revenue or through confusion to consumers. An official version of Catan was not being published in Second Life, so the derivative version was not damaging any potential sales, and prior to Hasbro’s entry on Facebook, neither was the Scrabulous application. On the other hand, both products went so far as to name themselves, to a degree, after the originals, and that’s a trademark no-no. While most of us are smart enough to recognize the differences, there’s always a small chance that an uninformed consumer will assume Scrabulous is an “official” Scrabble product, and misguidedly believe his support of it benefits the property owner — or worse, blame any inadequacies on the owner, who has nothing to do with it.
A simple name change might clear up the “confusion” issue, but is that enough? Even if one sets aside whether or not the Agarwallas are making any money through ad revenue, the claim can no longer be made that they’re not harming Hasbro’s revenue on Facebook — not since the official Scrabble application became available. Hasbro, as the copyright owner, has exclusive rights to make derivative Scrabble products, and Scrabulous has harmed them by taking away their right to exercise their property as they see fit. True, a consumer who comes in blind at this point can make a choice between Scrabble and Wordscraper, an “unrelated” game, and may the best game win; that’s just the way of the free market. By now, however, the damage has been done. Search for Wordscraper online and you’ll find any one of a hundred stories explaining that the game is simply a re-branded Scrabulous, and let’s not forget the 840,000 users who will be forever comparing their Scrabulous experience to the official version. If the Agarwallas had gone with the distinct, non-infringing Wordscraper from the beginning, we might not be in this mess at all, but they didn’t, and it’s unfair to now look at it from a purely merit-based view.
On the other hand, one is tempted to grant the Agarwallas the full benefit of the doubt: An optimist might argue that these designers merely created the Scrabulous application to share a beloved pastime with the world; Jayant Agarwalla is the winner of multiple Scrabble tournaments. What harm could there be in sharing this passion with an unserved segment of the global population, especially given Hasbro’s non-presence in the medium at the time? Similar practices are often found in other forms of internationalizing entertainment. Gamers import region-locked consoles and games from overseas on a regular basis, and an entire segment of the anime subculture (no pun intended) is dedicated to “fansubs,” the practice of providing copies of Japanese programming with high-quality, unofficial translations, for series that are not currently available domestically.
The difference, however, is that a reputable “fansub” group knows its legal standing, and the community maintains a hard rule: Should a series be picked up for commercial translation and import, the amateur community drops their translation efforts, and encourages their fans to cease circulation. This is done, ostensibly, both to avoid legal action, and to encourage the import companies to continue bringing over their favorite titles by supporting them when they make the effort. The Agarwallas have done precisely the opposite. Appreciation is a two-way street; by the same sentiment that Hasbro would have done better to simply purchase Scrabulous and assimilate it into their official efforts, the Agarwallas might have extended their own good will by encouraging their user base of Scrabulous players to support the official application. Instead, they turned around and released Wordscraper, which sends a disheartening message: they are not interested in sharing Scrabble with the world, they are interested in sharing their Scrabble with the world.
Further, the speed at which Wordscraper was released suggests this was a deliberate effort. Either the Agarwallas have an very rapid development team, or they knew this day was coming, and have been preparing for it for some time. A court may have a difficult time believing this is anything but a dodge, and I know I’m certainly skeptical.
In the end, this doesn’t affect the average consumer a great deal, and if the Agarwallas play their legal cards right, Wordscraper will be able to go toe-to-toe with Scrabble for word-game fame — let the users decide. If Wordscraper is genuinely a better game, we’d all be idiots not to play it; even if it is derivative, it may inspire Hasbro to make improvements to their game, and then we all win with higher-quality selections all around. It’s important to remember, though, how Wordscraper got where it is, and what it might mean for you when some day you find your works have been “improved upon” by another creator. Ultimately, we need to remember what makes Wordscraper so fun: You’re playing Scrabble, which was already pretty fun.
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