Scrabulous and Fair Use

Odds are, if you are on Facebook, you've played at least part of a game of Scrabulous, a virtual duplicate of the popular board game Scrabble® that currently resides on a list of the top 10 applications installed on Facebook.

I've played several games, most with my Profy colleage Leslie Poston, but from the first moment I saw it, I wondered how long it would be until I saw a takedown notice. Scrabulous is not licensed in any way, shape, or form, yet duplicates game play and even the board, right down to the location of the triple word score squares.

A takedown now seems imminent, complaints to the contrary, and yet over 600 Facebook members don't seem to understand why it has to happen.

The Scrabble rights are actually owned by two separate companies. Hasbro has rights in the U.S. while Mattel has the rights everywhere else. Because Facebook isn't limited to the U.S., you are then dealing with two distinct companies when it comes to licensing issues. If you are unfamiliar with Mattel's heavy-handed practices online, the Scrabulous players should be in for a rare treat; they go after fan sites for even using the name of their product on the site! Forget the tactics you see from Apple going after sites like ThinkSecret; Mattel is the master of this, demanding take-downs and the removal of photographs of their products even if they are photographs the site owner took of their own products! I still have a copy of my take-down notice from Mattel that I received back in 1999 or 2000 when I was still running a fan site (mind you, one that made NO money, ran NO ads and cost me a whole lot to run) as a reminder of corporation's real feeling about their customers.

The creators of Scrabulous even admitted that they had repeatedly contacted Hasbro with no response (one can only assume they didn't know about or think they had to bother with Mattel, who surely would have had a lawyer on their doorstep within minutes), which shows any court that they were aware there would be a licensing issue.

I've heard Scrabulous fans bandy about the phrase “fair use” but “fair use” doesn't equal taking something in its entirety, repackaging it using your own name, and then profiting from it. I've seen demands that Hasbro take the app, pay the creators for it, and then let it continue, which amounts to what? A slap on the wrist and then big money? Hey, it's okay that you stole our product, put your name on it, and tossed it out there. Here's some money for your trouble. Trademarks, copyrights, and patents exist for a reason. Sure, there are some instances where abuse exists, but it's sure better than an intellectual property free-for-all.

It's time to play those last words, head for that last red square, and try to finish up the games you have going. Lobby Hasbro for a licensed version of Scrabble on Facebook if that's what you want. But to claim that Scrabulous should continue in its present form is a waste of everyone's time and energy, because legally and ethically, it shouldn't.