Was Hasbro right to kill Scrabulous?

So the hammer has finally come down on Scrabulous, the Facebook game developed by two Indian brothers that become a viral hit only to be sued by Hasbro, which owns the licensing rights to the Scrabble board game. Trying to play the game now brings up an error message saying it is unavailable to U.S. or Canadian residents. Electronic Arts, meanwhile — which licenses the rights from Hasbro — has launched its own official version of the game on Facebook, although whether people will make the switch to the new version or not remains to be seen.

I’ve been kind of fascinated by this case ever since it first appeared. Not just because Scrabulous became so popular so quickly, but also because it seemed to boost interest in the actual board game itself, with stories of people addicted to the Facebook game going out and buying real-world copies for the first time. My first reaction was to cheer for Scrabulous, and wonder why Hasbro or EA didn’t just buy the app from the Agarwalla brothers and take advantage of all the free marketing their game was getting through Facebook. Mashable makes the same point here.

But lots of people responded that this would effectively reward the Agarwalla brothers for what amounts to copyright infringement, since the game on Facebook looks (or looked) virtually identical to Scrabble. Obviously that’s wrong. Right? I’ve been going back and forth on that question for some time now, and still haven’t decided. On the one hand, copyright should allow Hasbro to control where the game appears — but at the same time, Scrabulous wasn’t charging people to play (although it did generate revenue from ads, as several people have noted), and it helped promote the actual game. Why not give the Agarwallas something to compensate them for their ingenuity?

Update:

As Sarah Perez notes in her Read/Write Web post, there were apparently negotations with the Agarwalla brothers that would have seen Hasbro and the other license holders pay them for the app, but according to the New York Times they turned down the deal. Were they holding out for too much, or were Hasbro and the others unwilling to pay a fair price?

29 thoughts on “Was Hasbro right to kill Scrabulous?

  1. It was pure and blatant infringement. No contest there. Those two guys clearly wanted to profit from it (they had served ads).

    Hasbro/EA was within their right to kill it.

  2. The game was copyright infringement, plain and simple. How it even saw the light of day to begin with is a mystery. Forget the “positive” consequences — people buying more Scrabble board games — those are irrelevant, when the work at hand is _an exact clone_ of Scrabble. There is no promotion involved when the original copyright holder's name is never mentioned.

    Also, the fact that the brothers Agarwalla didn't charge for the game works against them, as now they are providing a copyrighted work that previously required compensation (board games, software apps, etc.) for free.

    I think some of the recent attempts by the RIAA and MPAA have gone too far, but this is one exception of clear IP violation, and the boys should have the book thrown at them. Maybe… a Scrabble dictionary.

    twitter.com/seanodotcom

  3. It's not even a matter of compensating the Agarwalla brothers. It's a matter of making a smart business decision.

    This is the thesis of the pirate's dilemna.

    The Argarwallas found untapped demand in the market for Hasbro, they created something that renewed interest in the game and got people playing it again in a new way on a new medium. Why not hire these people who are obviously a valuable asset to the business? More importantly, why not buy Scrabulous so that it's *Hasbro's*? Rather than sue them, risk a lot of bad publicity, and risk the likely event that not many people will use Hasbro's version, make the switch to a company that sued their fun offline.

    The Economist recently covered this: “in a recent book, “The Pirate’s Dilemma”, Matt Mason gives the example of Nigo, a Japanese designer who took Air Force 1 trainers made by Nike, removed the famous “swoosh” logo, applied his own designs and then sold the resulting shoes in limited editions at $300 a pair under his own label, A Bathing Ape. Instead of suing Nigo, Nike realised that he had spotted a gap in the market. It took a stake in his firm and also launched its own premium “remixes” of its trainers. Mr Mason argues that “the best way to profit from pirates is to copy them.”” [http://www.economist.com/opinion/displaystory.cfm?story_id=11750492]

    It's certainly within their right to take legal action, but it's a bad business decision and no one wins (Hasbro would be better off taking advantage of Scrabulous).

    • I tend to agree with you, Blaise — and with the thesis of Matt Mason's book. As Brian Sullivan mentions in a comment on FriendFeed about my post, whether it might be seen as rewarding copyright infringement or not shouldn't really concern Hasbro — they should be looking at it purely from a business standpoint, and the smart thing to do would have been to buy the app, hire the Agarwalla brothers and take advantage of all that free marketing and goodwill.

      • Note that phrase, through – “The best way to profit from pirates is copy them”. Not “the best way to profit from pirates is to buy their company and make them multi-millionaires” 🙂

        • A fair point. I've updated the post as well — according to the New York Times, the companies that own the rights tried to reach an agreement with the Agarwalla brothers but were unable to. Maybe they were too greedy.

  4. The difference between what Nigo did and what the Agarwalla's did should be obvious: Nigo *bought* trainers, adapted them and resold them, providing a direct benefit to Nike even without any extra effects.

    I don't get why people think shutting them down was a bad business decision, especially given the fact that they're going to do their own version. Why should they pay someone who basically took their game without permission and made money off it a single cent?

    • I don't think it's that different, Ian — what Nigo did was still infringement. But Nike saw the value there, and I think Hasbro could have too, as I mentioned in my response to Blaise's comment. Why not recognize the value of what the Agarwallas did? It would have jump-started their online presence for Scrabble — but instead they look dumb, and mean, and their app isn't as good.

      • Unless I've missed the point of what Nigo was doing, I'm not actually convinced it was infringement – otherwise, selling a custom car would be infringement. I can't think of a law which says that reselling an object you've bought legally through the open market is illegal, no matter what you do to it and no matter how much you sell it for – and especially when you've removed the trademarked element of it.

        And Hasbro – or, at least, EA – has seen the value of what the Aragawalla's did. They've simply decided that they don't need to reward the pirates in order to reap the benefits of that.

        • But how are they reaping the benefits by pissing off Scrabulous users? The resounding cry from users in response to the lawsuit and takedown isn't “thank God there's finally an official version for us to play!” It's been, “screw you Hasbro, I was having fun.”

          • I totally agree, Blaise. I made that point (via Mike Masnick at
            Techdirt) in my recent post on the launch of Wordscraper.

          • People have short memories. I'd bet that within a year, the user-base of “official” Scrabble will equal or surpass that of Scrabulous.

            But even if that didn't happen, paying someone who's stolen your game and profited from it isn't a viable long-term business strategy. It's an invite for other people to do the same – and you can't buy them all, because that doesn't allow you to actually develop your own strategy for releasing your own property.

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  6. I can only imagine that, when Hasbro did approach the negotiations, they did so from a position of great advatnage. They knew that they had at least the legal right to shut Scrabulous down and replace it with its own version of the game, the only penalty being an inevitable user backlash.

    I doubt that Hasbro saw or sees much value in Scrabulous and, no matter how fair the price might be seen, was unlikely to ever pay.

    However, I do find it odd that Hasbro negotiated at all. The reason being that, if they feel that Scrabulous was such a dire infringement, it would seem that negotiation and considering paying would be encouraging such infringement by others.

    In the end, I don't know if Scrabulous was an infringement or not. I won't even dare venture a guess. You only need to take a few steps into muddy water before you can't see the ground beneath you. I just have to assume that Hasbro had a good reason for believing that it was.

    Whether or not this was a good move, we'll have to see. Honestly though, I would have preferred a slightly happier ending. Still, it does take two to let things go so bad so I'm forced to believe that Hasbro is not alone in the blame.

    At least until I get more information…

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  8. Maybe this is a silly question to be asking at this point but what exactly was infringed? The idea of a game cannot be protected under copyright. According to the US Copyright Office:

    Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

    Can the Scrabble board be said to contain a sufficient amount of literary or pictorial expression? I'm all for upholding intellectual property rights when they've been infringed but it's not clear to me what Scrabulous has done wrong.

    • That's an interesting question, Michael — I'm not sure of the legal niceties when it comes to copyrighting or trademarking games. I suppose Hasbro could argue that the similarity in the name and the design of the board would tend to cause confusion in the minds of consumers, which is the basis of most trademark cases. Perhaps it will go to court and we'll find out 🙂

  9. Right, I'd agree that there's a case to run of trademark infringement but that's quite different from what's being alleged here (at least in what I've read). I tend to get (perhaps overly?) concerned whenever anyone seeks to expand the ambit of intellectual property through legal intimidation. I believe in intellectual property but as something that strikes a balance between creators and users; not something that's just for the advantage of copyright holders.

  10. Despite the legal niceties, naming the game Scrabulous in the 1st. place was asking for trouble. The difference with Nike seems to be that the infringer made more of an input to produce a different model. So Nike bought into his concept of Nike remixes. Scrabulous was blatant trading on the name as well as the game, with a lack of new input. It was blatant copying so there was a tendency to make an example of them. Had they taken the game & used it as the basis for something different, then that might have been a different argument. And the ad revenues would have been their reward for innovation, not just copying.

  11. They copied the entire game outright. They even named it practically the same. Should they just be able to do that and get rich off of it? Why would anyone want to create anything if anyone can come along, copy the idea, and make tons of money off of it? I'm with Hasbro on this one. Maybe their methods were short sighted but they have every right to protect their IP.

  12. That's a good point too, Maggie. Maybe if the Agarwalla brothers had tried to add something extra to the game Hasbro would have looked at it a little differently.

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  15. NO, biggest exposure Scrabble ever had. It must have increased board sales, dumb move by Hasbro – they should wake up to the potential of exposure in Web 2.0

  16. NO, biggest exposure Scrabble ever had. It must have increased board sales, dumb move by Hasbro – they should wake up to the potential of exposure in Web 2.0

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