(The draft of this post was “Absolutely Scrabulous” but damn you Frank Pasquale (great post though) for using the title first)
The storm (7) in a teacup (10) over Scrabble and Scrabulous is an illustration of what’s wrong with copyright law. As you’re probably sick to death of hearing, Hasbro, owning the copyright in the original Scrabble board game (after a series of buyouts/sales over the game’s long 20th-century history) hold some sort of rights (in the board itself, I think, not the game). They have licensed this for electronic use to another (Electronic Arts) and said other have brought proceedings against a Facebook version of the game called Scrabulous. (Many suspect that the result will be that EA buys Scrabulous and agrees to settle as pat of the purchase-price negotiations. Ah, the majesty of the protection of artists).
At this stage, any pretence that copyright is about the promotion of creativity and knowledge is but a sad joke. This is about the protection of market and little more – and by all means, there’s a case for the legal system protecting this (even if I’d be a sceptic), but it is so far from the stated purposes of copyright law that is tantamount to a redefinition.
Picture the scene. Architect Alfred Mosher Butts is trying to figure out his idea for a game. He says to himself “Well, I could get back to work and go and plan the position of a few windows and doors on that house, but because a company called Hasbro will (in 70 years time) be able to sell the exclusive rights to put this board on a computer network that I haven’t even heard of because it hasn’t been invented yet, I really should stick with it. Yes, it’s copyright law that keeps me going!” Indeed, even if Butts had had an awareness of copyright law, it was the law then in existence (and not the bloated, inflated, extended version that we now know), so any suggestion that an uncontemplated law encouraged him to draw out the picture is beyond comprehension.
Of course, you can argue that it’s essential for a game to have copyright protection if it is to be of any value and consistency in the marketplace and the cultural space. Just like chess, right? Well, as is probably obvious from my tone, we’re fortunate enough that the modern chess board was laid out long before copyright statutes were but a twinkle in the eye of the legislator. And the absence of copyright protection doesn’t seem to stop investment in and the search for new ways to play chess.
My point here is not to absolve the intrepid developers of Scrabulous of any responsibility. Clearly, there are issues in trademark law that they might want to deal with, and they are as much a part of this dance of acquisition and offer as EA themselves. However, if we believe that there’s a social or economic value in protecting EA’s ‘rights’, I feel that this should be worked out outside of the law of copyright, as every time a clearly ludicrous situation like this arises, the moral authority of copyright law is diminished even further. As it turns out, the platform (Facebook) is the first target, and they too have to assess their responsibility and liability (raising issues of gatekeepers and control as summarised by Jonathan Zittrain, here. However, from the point of view of the 21st century user, both Scrabble (TM, whatever) and chess are ‘old’ games and the fact that one can only be touched with permission (in return for silver dollars) and the other is perfectly open for experimentation and dissemination will baffle the average user. And they are right to question why this is the case. This illustrates not just over-protection but the insanity of extending protection over and over and over and over (like a monkey with a miniature cymbal) for works that (if ever protected) should long have passed into the public domain.
All this is as a footnote to the unstoppable John Palfrey who predicted this last October!