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One of the more significant legal stories this summer has been the legal battle between Hasbro, Inc. and two Indian programmers who created an online video game which they called “Scrabulous”.  Scrabulous is a generic version of the classic board game “Scrabble” which has gained enormous popularity on the social website Facebook.  Hasbro, the American owners of the IP rights in the Scrabble product, sued the makers of Scrabulous for copyright and trademark infringement. While the lawsuit is going on, Scrabulous is no longer available to Facebook users in North America, which has caused quite an uproar among its users. There are now several pages devoted to saving Scrabulous on Facebook, the largest of which boasts over 50,000 users.

Listening to the commentary on this matter has been something of an exercise in anger management for me.  Anti-intellectual-property advocates seem to be leaping over all the other issues and jumping onto fair use, while those who favor intellectual property seem to be equally ignorant of some of the fundamental concepts of copyright law that are in play in a situation like this.  As a result, I have decided, as a public service, to outline some of the fundamental copyright law concepts that this law suit is touching upon.

Games per se cannot be copyrighted.

The first major problem with Hasbro’s case is that while Hasbro could own copyrights in various parts of a game, like the game board or the instruction booklet, Scrabble itself is not a thing entitled to copyright protection.  In legalese, it is not copyrightable subject matter.  This is an extremely important part of any of Hasbro’s copyright claims.  Game play similarity is completely irrelevant to a copyright infringement claim.

Why this isn’t better better understood by commentators is something of a mystery to me.  There’s case law dating back over 70 years specifically on this point.  This rule has been applied to board games, trivia games, video games, and billiards variants.  Indeed, less than 30 years ago, this rule was used to overturn a finding of copyright infringement in a knock-off of PAC-MAN. In that case, the appeals court ruled that the trial court relied too heavily on game mechanics rather than artistic factors in finding infringement.  In other words, the was no copyright infringement just because both were maze games that involved eating dots and avoiding ghosts.  Instead, the court held that there could only be copyright infringement if the two player’s characters, the ghosts, the color scheme, and related artwork were too similar.

It was especially disheartening to me to read in the complaint that Hasbro filed in New York Federal Court where Hasbro bolsters its claim of copyright infringement by pointing out that the Scrabulous website, rather than writing up its own instructions, referred visitors to a page on Hasbro’s website containing Scrabble’s rules.  This is precisely the kind of similarity that courts can never consider, often going as far as to claim that “the games themselves” are public domain.  This of course isn’t true if “the game itself” is the subject of a patent, but that’s not the case with Scrabble.

Copyrighting rules isn’t copyrighting a game.

In American Intellectual Property law, copyrighting a set of rules is a fruitless endeavor.  There are two reasons for this.  The first is that The Copyright Act explicitly says that copyrights never extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery“.  So even if you copyright instructions for doing something like playing a game or entering a contest, you don’t get exclusive rights to that game or contest.

Furthermore, thanks to the IP law doctrine of Merger, any language deemed too important to explaining the rules doesn’t get copyright protection either.  The classic case explaining this concept comes from a lawsuit over raffles.  Two companies provided instructions on how to become entered into a raffle, and those rules read almost identically (because both companies were asking their customers to do the same thing to enter).  The court ruled that since both companies were entitled to use the process, and because any literary variants on the rules would still be substantially similar, that the “unprotected idea” and the “protected expression” merged into the idea. In other words, because there are only so many ways to write a rule for a game, rules themselves cannot be copyrighted.

The trademark issues regarding Scrabble are murky at best.

Linoleum.  Trampoline.  Popsicle.  All these were brand names and product names until enough people began using them as names for the products regardless of who made them.  Under trademark law as it currently stands, once the trademark no longer serves as an indicator of who makes it but merely an identifier for the product.  So, when people go into a store and ask for Scrabble, are they looking for the Hasbro product, the way they distinguish between Coca-Cola, Pepsi, and RC?  Or are they just looking for anything with a 15×15 grid and 100 letter tiles regardless of the name, the way we would ask for “cola”?  Honestly, there’s no clear answer to this.  But it seems to me a really strong argument could be made that very few people care about who makes their Scrabble board as long as it plays the same as what they’re used to.

This isn’t to say that Hasbro doesn’t have some legitimate claims.  The original Scrabulous game board used an extremely similar board to the original Hasbro board, which might provide some grounds for action.  However, Hasbro’s claims against Scrabulous for use of the Scrabble Dictionary and Hasbro’s choice of point values are less certain, bordering on unlikely.  But in the grand scheme of things, how important are these minor details when your claim against the game is invalid?  Hasbro might win a battle or two, but it can’t win the war.  All the makers of Scrabulous have to do is pick a new color scheme, vary the points a little and rename the game, and they avoid all the IP issues that could ever be leveled against it–all of which they’ve already done.  So what did Hasbro gain?  A large amount of bad press, bad blood with a competitor, and a ridiculous amount of wasted money on P.R.