Scrabulous Gone, Questions Remain
Copyright Battles Heat Up on Web

By Mike Musgrove
Washington Post Staff Writer
Saturday, August 2, 2008

A popular word puzzle game on Facebook became the latest example of the Web's knack for causing anxiety among copyright owners this week.

Last week, board game maker Hasbro filed a copyright infringement complaint against the makers of a Scrabble-like game on Facebook called Scrabulous. On Tuesday, the application's creators, a pair of brothers in India, took the game down in the United States and Canada, to the dismay of many fans. A couple of days later, the game returned in a rejiggered fashion that included a few new options and a new name: Wordscraper.

As the Internet shifts consumer activity away from physical goods to digital versions of them, copyright fights and questions have popped up with increased frequency. To some extent, that's a natural result of the way Web and digital technology works, said Sherwin Siy, staff attorney at Washington-based Public Knowledge, a technology policy advocacy group.

"People are moving online and there are going to be more questions raised about how moving things online subjects people to copyright," he said. "The Internet works through copying things, that's just how digital technology works."

As a result, copyright law is coming into play much more than it once did. "Copyright law used to be this obscure thing that only publishers were interested in," Siy said. "It's something that now affects everyone. When you change copyright law now, it affects everybody who owns a PC."

As Silicon Valley technology forecaster Paul Saffo puts it, "there are two cultures -- the Web and the real world. And whenever cyberspace comes up against the real world, it finds that the real world has a different set of rules."

The Scrabulous controversy is different from some of the well-known lawsuits over peer-to-peer file-trading software applications such as Napster and Grokster, which allowed Web users to trade exact digital copies of music or video files.

There's not much dispute that Scrabulous was a direct knockoff of Scrabble, but the question of copyright infringement is harder to nail down. "The idea of Scrabble -- the idea that you would get points for spelling words -- can't be copyrighted," said James M. Burger, a partner at the Washington law firm Dow Lohnes. "The only thing you can copyright is the look and the feel of the game."

As another example, you can't copyright poker, but a distinctive version of poker designed, say, for a computer, could be protected.

Even so, many lawyers said that Hasbro clearly has a strong case against the creators of Scrabulous. Stacey Friends, a trademark and copyright lawyer with Ruberto, Israel & Weiner in Boston, said that the Facebook game's "look and feel" were unmistakably similar to the 70-year-old board game and that the name "Scrabulous" could have clearly caused consumer confusion.

"Hasbro was on very solid ground, I don't think there was any question about it," she said.

Regardless of the merits of the case, the more interesting part of the story to some tech pundits was that a couple of young Scrabble fans were able to turn an old board game into one of the most popular items on the Web. Many had unflattering words for Hasbro for taking legal action against the creators of Scrabulous rather than settling on a business deal with them.

"Hasbro is stupid," said Saffo. "Thanks to this new electronic lounge called Facebook, board games are hot. Two Indian students pointed [Hasbro] to what could be their iTunes and they responded with lawyers."

As for whether the differences in the newly posted word puzzle game are enough to protect the game's designers from legal action, that's still unclear, but some lawyers this week tentatively ventured that the changes to the new game could be sufficient to protect Wordscraper from legal attack.

"It might be enough," Friends said.

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