How Could A Game That Has Made Scrabble Popular Again Be A 'Bad Precedent' For Mattel?

from the please-explain dept

Mon, Mar 3rd 2008 6:34am — Mike Masnick

Back in January, we explored the news that both Hasbro and Mattel (who own the rights to the board game Scrabble in different regions) were upset and threatening to sue about the incredibly popular knockoff version Scrabulous on Facebook. As we pointed out at the time, shutting down the game would quickly piss off 2.3 million Scrabble fans -- many of whom were interested in the game for the first time, most likely leading to real sales of the board game. While the situation still has not been resolved (and Scrabulous remains online), the New York Times has the latest details that suggest that Real Networks is negotiating with Scrabulous' creators. Since Real has a deal to produce an online version of Scrabble (the article first says the deal is with Hasbro, and later says it's with Mattel, so it's not clear who the deal is with), perhaps this will all be worked out for the best. However, the article does mention that executives from Mattel are against the idea of settling with the creators of Scrabulous, fearing that it "would set a bad precedent."

That's lawyers speaking, not marketers. How could a fun online game that has rejuvenated interest in what was seen as a rather dull board game among many folks today, be considered a "bad precedent?" How could having millions of new fans of your game and treating them right, rather than depriving them of what they want be considered a "bad precedent?" Some may answer that the "bad precedent" would be that it would encourage others to create similar knockoffs of other Mattel games, but, again, if they drove as much interest in the originals as Scrabulous did, isn't that a good thing? Some may claim that it would deprive Mattel the opportunity to license the games for lots of money, but again looking at Scrabble as an example, the bigger fear for Mattel should have been the fact that many people didn't care about the game at all. By letting random people create the games for it, it can quickly determine which games work well online and then work with the creators of those games to put an official stamp on it. The Agarwalla brothers created this game at no cost to Mattel, who otherwise would have spent a ton of money to create it after which it might not have caught on in the same way Scrabulous did. This way the game has been created, tested and even built up an audience at no cost to Mattel. Shouldn't they consider that to be a good thing?

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Filed Under: board games, promotions, scrabble, scrabulous
Companies: hasbro, mattel, real networks

48 Comments

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Anonymous Coward, 3 Mar 2008 @ 7:33am

F - I - R - S - T

The 'F' is on a triple word in case you can't see it.
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Shuryno, 3 Mar 2008 @ 7:36am

The real bad precedent here for Mattel, would be using Real network as a dev for their game. Everything Real network touch turns into crap.

Just ask any mdestly experience net user if they'd like to install real player....
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Rationality, 3 Mar 2008 @ 7:41am

Enough hot smoke
If you want to critisize large corporations and their lawyers over and over *ad nauseum* then please do some research. Don't say things like "most likely leading" or "what was seen as a rather dull." What are you basing this off of? Your own personal observations? SOME sort of reference? If you're going to get ontop your soapbox EVERY DAY preaching about the same thing, PLEASE have something to say.

This comment will most certainly be modded away.
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Hellsvilla, 3 Mar 2008 @ 7:57am

Re: Enough hot smoke
His post was more researched and relevant than yours.
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Adam, 3 Mar 2008 @ 8:00am

more companies that don't get it...
it's almost like these guys have never been on the web...
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wildmofo, 3 Mar 2008 @ 8:00am

stealing somebody's game and putting it on the web and making money from it IS the bad precedent. I guess the writer of this article wants to profit off other people's property too... How idiotic of a question
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Matt, 3 Mar 2008 @ 8:00am

Re: Re: Enough hot smoke
Additionally, its pretty accurate too. We all know Real and every product Real has ever offered has been garbage due to their own bad business decisions. Techdirt has done enough articles about that themselves.

Have people forgotten about the Real spam? I haven't.
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BeReasonable (profile), 3 Mar 2008 @ 8:01am

Enough Rationality
Goodness, are you paying attention? The point of this article is to update us on how yet another company is doing something stupid based on senseless greed and only have a chance to do so because our copyright laws are stifling real creativity in favor of the perpetuation of corporate profits. There's a chance they will actually do the smart thing, which he does report on and does not gloss over. If he was as single-minded as you make him out to be, he most assuredly wouldn't have mentioned that.

Also, if you look at the links in the item, you'll see a previous discussion about the game, it's excitement level, other versions available and a lot of other interesting stuff. Obviously he felt there wasn't a need to re-hash all of that, since regular readers, like me, remember the previous entry and wouldn't need to wade through a bunch of crap to get what is essentially an update on a continuing story. Not everything written is a term paper and needs to be cited like such.
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Anonymous Coward, 3 Mar 2008 @ 8:02am

Re: Re: Re: Enough hot smoke
Therefore, steal someone's game and make money off of it. Is that your conclusion? Because something sucks then they deserve to lose proft. Cool.
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Anonymous Coward, 3 Mar 2008 @ 8:04am

Re: Re: Re: Re: Enough hot smoke
Didn't finish that thought. They don't deserve to lose profit from theft, but from being stupid.
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Anonymous Coward, 3 Mar 2008 @ 8:05am

Re: Re: Re: Re: Enough hot smoke
Therefore, read the article before posting stupid comments.
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Anonymous Coward, 3 Mar 2008 @ 8:06am

Re:
I guess the writer of this comment wants to ignore the article and post an ignorant comment.
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Shuryno, 3 Mar 2008 @ 8:52am

WTF?

All I'm saying is, if Mattel don't want to make a bad precedent, they should not have their name mixed up with Real Network.That's the law of the masses, Real Network is bad, hmmm k!

For the rest, it's a legal question and is something I could not care less about, the laws of the corporate and powerful.

Makes my problems seem so futile ;)
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Dale, 3 Mar 2008 @ 8:53am

the actual bad precedent
It seems to me that the bad precedent here is in the article, namely: "Jayant Agarwalla, 21, said they did not create Scrabulous to make money, even though they now collect about $25,000 a month from online advertising." Yes they extended Scrabble into the online arena, and yes its something that Hasbro/Mattel should have done themselves, but the bottom line is that these guys are making a buck based largerly (mostly) on someone else's creation.

You can certainly argue that its not a lot of money, and is a pittance of what Hasbro/Mattel could earn by taking Scrabulous to the next level. However it does seem in fact to be a scary precedent to allow others to profit in this way. Not sure how this is different than taking the content of old Sports Illustrated maagazines, packaging them as a nostalgia magazine, and selling ads in the magazine without compensating SI?
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David Kaufman, 3 Mar 2008 @ 9:02am

Word Games
I understand the point from Mattel's perspective. But isn't the precedent well established on the web with Viacom's suit against YouTube, among many other corporate infringements.

There is one aspect that we might all be missing, the PR aspect. Both companies are getting a lot of mileage out of this right now, and down the road they can still settle.

My guess is a revenue share of some sort would make a lot of sense. Licensed products is a pretty established long-term way to turn your property into alternate revenue streams. (See Star Wars)
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Ben (profile), 3 Mar 2008 @ 9:22am

Said the attorney for Mattel
Hey guy,

It's a blog, not a thesis. They don't need, and we don't want (Ben et al. 2008, p1), extensive references in APA format. I have to agree, as much as my family loves the game, that few people do. Hence the "rather dull" comment.
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bshock, 3 Mar 2008 @ 9:23am

You seem very concerned about Mattel
Who cares about another giant corporation? Please, let it do something stupid and damage itself. Hell, if you can, encourage it to destroy itself.
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Scott Spinola, 3 Mar 2008 @ 10:04am

The problem is the potential loss of intellectual
The author seems to suggest that companies are short-sighted when they attempt to assert their intellectual property rights, reasoning that they would be better off financially if they didn't. That argument is short-sighted and does not recognize the realities of intellectual property law.

IP owners must, by law, exert their claim on intellectual property or they stand to lose their claim on it. That is the reality of the law. Calling companies greedy or short-sighted for asserting a claim on their intellectual property is to argue that they should voluntarily cede those rights to anyone who wants them.

If Mattel and Hasbro do not bring suit for the unlicensed use of their property, they risk letting "Scrabble" become just another generic consumer product like the formerly protected property linoleum, zipper, and aspirin.
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Edmond Woychowsky, 3 Mar 2008 @ 10:10am

Scrabble
Sure, it's all fun and games, until someone loses an I.
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N/A, 3 Mar 2008 @ 10:11am

Re: the actual bad precedent
That's the thing, they are not selling the game, they are selling ads, The traffic is bringing in money.

If you needed to pay to play, that would be something else.
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Brian, 3 Mar 2008 @ 10:15am

I think I'll make "techmud.com", copy this pages style sheets, get my friends to post tech "insight", and add a bunch of Google ad words. By this blog's logic, it should be good for Techdirt and Techdirt would be idiots for trying to shut me down -- especially if I got way more popular than them.

I play Scrabulous, I think it's great. But it is a blatant rip off, they're profiting from it, and it should be liscenced or shut down. If it's shut down, a legit copy will appear in no time.
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b, 3 Mar 2008 @ 10:18am

Re: Re: the actual bad precedent
This is the most retarded argument ever - how does the business model dictate if something has been stolen or not? The advertising business model covers most all of the web, television, free publications, etc - so, by your logic, any of those can be copied so long as the copier goes and finds their own advertisers to buy up the space?
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mobiGeek, 3 Mar 2008 @ 10:43am

Re: Re: Re: Re: Re: Enough hot smoke
Steal? Mattel/Hasbro no longer have their game?
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mobiGeek, 3 Mar 2008 @ 10:46am

Re: Re: Re: the actual bad precedent
I'm sorry...I must have missed it. What exactly got stolen? Who no longer holds onto property they once had?
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Anonymous Coward, 3 Mar 2008 @ 10:48am

" IP owners must, by law, exert their claim on intellectual property or they stand to lose their claim on it. "

TRADEMARK owners must assert their rights, otherwise they risk their TRADEMARK becoming a generic term.

Copyright owners remain copyright owners for 90+ years no matter what. They can assert or not assert their rights at any time as they see fit.

Patent owners remain patent owners for the life of the patent (not sure how long that is, 18 years or something?) They can assert or not assert their rights at any time as they see fit.
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mobiGeek, 3 Mar 2008 @ 10:48am

Re: You seem very concerned about Mattel
Because they aren't doing harm to just themselves. They are going after people/companies that are trying to *innovate*, bringing old (in some cases VERY OLD) ideas into the present.
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Jason Still, 3 Mar 2008 @ 10:56am

Re: the actual bad precedent
You can certainly argue that its not a lot of money, and is a pittance of what Hasbro/Mattel could earn by taking Scrabulous to the next level. However it does seem in fact to be a scary precedent to allow others to profit in this way. Not sure how this is different than taking the content of old Sports Illustrated maagazines, packaging them as a nostalgia magazine, and selling ads in the magazine without compensating SI?

One problem with your analogy is that magazine's generally have a copyright on their contents, I believe, whereas the idea for, name of, and methods of playing a game are not covered by copyright. See: copyright.gov
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mobiGeek, 3 Mar 2008 @ 10:58am

Re: The problem is the potential loss of intellect
First, I question which "laws" you are talking about.

Second, nothing in any law says they have to sue people.

Third, nothing in any law says they have to sue people who are IMPROVING the marketing of their own product.

How about this: instead of spending money on lawyers to go after these individuals, you offer them that money to partner with you or sell them the "right" to brand their product with your name or a host of other possible models that would be beneficial to all three parties...at least choose one that does not disenfranchise 2 million likely customers.
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Anonymous Coward, 3 Mar 2008 @ 11:02am

Re: The problem is the potential loss of intellect
I'll pass on the fact that IP is comprised of different elements as that has already been noted, and add this comment:

"If Mattel and Hasbro do not bring suit..." means that their only method of defense is a lawsuit. Another method of defense would be to work with the creators of the application to ensure the trademark is being respected and still enjoy the bounty of someone's gift-wrapped revenue stream.

And now for the Comment-Stream Obligatory Analogy: It's like installing a machine-gun nest for home protection before you put a lock on the door.
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mobiGeek, 3 Mar 2008 @ 11:10am

Re:
"By this blog's logic, it should be good for Techdirt and Techdirt would be idiots for trying to shut me down"

Yes, yes that is the logic. And it is damned sound. Even if someone copied Techdirt 100%, the fact is that it would drive more business to Techdirt.

- Notice that Techdirt DOESN'T (currently) have web ads. So viewers seeing the blog articles elsewhere doesn't (directly) steal anything from Techdirt. Their business model does not depend on people reading the information from this particular URL(!!)
- The copy site would be slightly behind whatever Techdirt is doing. People would eventually learn about the "real" Techdirt and check that out.
- More often then not, a "copy site" is poorly run and would be down the instant a slashdotting (or whatever) happens. Again, people would eventually find the real source.
- A copy site exposes many more people to the information within Techdirt, EVEN if they are getting it from somewhere else.
- The copy would only be that: a copy. It would not have the same comment posters, it would not be tied to other Techdirt features, some of which are SOLD.

So, good luck with techmud.com! Let us know when it is up (and please provide a brief outline of what VALUE this copy site provides above that which we already have...otherwise I'll just stay here thanks).
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BeReasonable (profile), 3 Mar 2008 @ 11:33am

Re: Re:
Actually Mike comments on the very thing about 2/3 way down in this entry
http://techdirt.com/articles/20071219/182230.shtml
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mobiGeek, 3 Mar 2008 @ 11:49am

Re: Re: Re:
I knew it was out there somewhere. Thanks for the link!
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HMM, 3 Mar 2008 @ 12:07pm

Can someone answer this?
Why scrabulous, and not say, Literati?
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Scott Spinola, 3 Mar 2008 @ 12:20pm

Re: Re: The problem is the potential loss of intel
...perhaps you would sit down in negotiations with the thief who stole their TV?

The misuse of the Scrabble brand already exists. Even if the suit does not make it to trial, Mattel/Hasbro still assert their claim to the brand in a suit, which is often sufficient for establishing claim. I can only assume that Mattel/Hasbro sent proper legal notices to the Scrabulous people before bringing the suit and that the reaction did not satisfy Mattel/Hasbro.

I am not an IP lawyer, but I do know that corporations face tremendous risks when they do not vigorously assert their claims to intellectual property, whether in trademark, copyright, or some other form. The author's error is suggesting that short-term financial gain should trump long-term IP rights claims.
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Al, 3 Mar 2008 @ 12:23pm

Re: Enough hot smoke
please since you don't like reading the posts on this soap box stop reading it.
This soapbox is often apocryphal and sometimes insightful but always entertaining if only for the idiots that complain because they can't do as well.
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Al, 3 Mar 2008 @ 12:24pm

Re: Enough hot smoke
please since you don't like reading the posts on this soap box stop reading it.
This soapbox is often apocryphal and sometimes insightful but always entertaining if only for the idiots that complain because they can't do as well.
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Buzz, 3 Mar 2008 @ 2:01pm

Re: Re:
Thank you for this post! I was about to respond with something very similar, but you took the words right out of my mouth. No one would last long before readers realize that the site layout was copied and modified in hopes of stealing traffic. Then, the new site's reputation sinks.

I do recall someone making a similar argument on a previous Techdirt post, and Mike himself came down here and basically said, "Go for it!" He understands that by offering a truly unique quality product, he can stay ahead of the competition. This site is not some generic clone of another site. Being the best entails offering quality and innovation instead of rehashes and litigation.
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Mike (profile), 3 Mar 2008 @ 2:59pm

Re:
Hi Brian!

I think I'll make "techmud.com", copy this pages style sheets, get my friends to post tech "insight", and add a bunch of Google ad words. By this blog's logic, it should be good for Techdirt and Techdirt would be idiots for trying to shut me down -- especially if I got way more popular than them.

I find it amusing when people make this suggestion. As we've made clear, we don't have a problem with this. Go for it. For a full explanation of why you can read this:

http://www.techdirt.com/article.php?sid=20070412/183135#c612

or I can just repeat it for you:

And as we've said repeatedly, we have no problem with people taking our content and reposting it. It's funny how many people come here, like yourself, and assume you've found some "gotcha." You haven't. There already are about 10 sites that copy Techdirt, post for post. Some of them give us credit. Some of them don't. We don't go after any of them.

Here's why:

1. None of those sites get any traffic. By itself, they offer nothing special.

2. If anything, it doesn't take people long to read those sites and figure out that the content is really from Techdirt. Then they just come here to the original source. So, it tends to help drive more traffic to us. That's cool.

3. As soon as the people realize the other sites are simply copying us, it makes those sites look really, really bad. If you want to risk your reputation like that, go ahead, but it's a big risk.

4. A big part of the value of Techdirt is the community here. You can't just replicate that.

5. Another big part of the value of Techdirt is that we, the writers, engage in the comments. You absolutely cannot fake that on your own site.

So, really, what's the purpose of copying our content, other than maybe driving a little traffic our way?

So, if you really want to, I'd suggest it's pretty dumb, but go ahead.

Every few weeks we see another one like that show up and they usually disappear a few weeks later. Some have much better names than Techmud, btw.
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Mike (profile), 3 Mar 2008 @ 3:05pm

Re: The problem is the potential loss of intellect
The author seems to suggest that companies are short-sighted when they attempt to assert their intellectual property rights, reasoning that they would be better off financially if they didn't. That argument is short-sighted and does not recognize the realities of intellectual property law.

I'm quite familiar with the realities of intellectual property law. In fact, we were just discussing it:

http://www.techdirt.com/articles/20080228/003450379.shtml

The idea that they have to sue is a myth. It's one way for lazy lawyers to cover themselves. They don't have to sue.

IP owners must, by law, exert their claim on intellectual property or they stand to lose their claim on it.

For trademark they need to make reasonable efforts to keep the term from going generic. That does not apply to other types of IP, and making reasonable efforts certainly can involve working out a deal with those who have been promoting your brand for free -- not necessarily suing them.

Calling companies greedy or short-sighted for asserting a claim on their intellectual property is to argue that they should voluntarily cede those rights to anyone who wants them.

That is not what I said and that's not what the law says. What I said was that they should recognize the promotional value provided by this game and work out a deal to allow them to continue promoting the physical board game.

If Mattel and Hasbro do not bring suit for the unlicensed use of their property, they risk letting "Scrabble" become just another generic consumer product like the formerly protected property linoleum, zipper, and aspirin.

Again, reasonable efforts need not involve a lawsuit.
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Dale, 4 Mar 2008 @ 7:00am

Re: Re: the actual bad precedent
Jason, thank you for that info, it was actually quite helpful. So am I to understand that I can create a board game called Monopoly with the same rules and there would be no legal issue at all? Or am I getting copyright mixed up with some other supposed means of protection for Scrabble?
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Scott Spinola, 4 Mar 2008 @ 7:47am

Re: Re: The problem is the potential loss of intel
The point is that the legal violation already occurred. To negotiate with the thieves is to approve of that action and signal to other IP thieves that the correct path, an up-front negotiation, is the wrong path.

Laws exist for a reason. To allow someone to break them and, worse, to let them benefit financially from doing so (even if you will also benefit financially) is short-sighted.

I am not an IP lawyer, so I appreciate the corrections on my misstatements of law. But, in my view, a legal reaction to an illegal act is wholly appropriate in any area of law.
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Mike (profile), 4 Mar 2008 @ 11:29am

Re: Re: Re: The problem is the potential loss of i
The point is that the legal violation already occurred. To negotiate with the thieves is to approve of that action and signal to other IP thieves that the correct path, an up-front negotiation, is the wrong path.

The problem is your erroneous belief that these are "thieves." Nothing has been stolen. Instead of thinking about them as thieves, why not think of them as people who have FOR FREE helped to PROMOTE Scrabble.

Laws exist for a reason. To allow someone to break them and, worse, to let them benefit financially from doing so (even if you will also benefit financially) is short-sighted.

No. To sue someone who helped promote your products for free is short-sighted.

I am not an IP lawyer, so I appreciate the corrections on my misstatements of law. But, in my view, a legal reaction to an illegal act is wholly appropriate in any area of law.

Even if the end result is a worse market position? That's ridiculous.
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Mark Mathson, 4 Mar 2008 @ 11:42am

Good and Bad
I can see the good and the bad in relating to Mattel's reaction. The good is that they are attempting to protect intellectual property, and the bad is that they appear to have overreacted.

I certainly agree that Scrabulous has rejuvenated interest, and that the consumer of this fun online game should ultimately be the winner.
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Mike (profile), 4 Mar 2008 @ 2:21pm

Re: Good and Bad
I can see the good and the bad in relating to Mattel's reaction. The good is that they are attempting to protect intellectual property, and the bad is that they appear to have overreacted.

Why is it "good" if it's not necessary and overall damaging to their brand?
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Rekrul, 4 Mar 2008 @ 6:36pm

The corporate mind at work...

Exec1: Do you think we should make online versions of our traditional board games?

Exec2: What for? Sales of the physical games are down, therefore nobody is interested in playing them anymore. Nobody would be interested in playing them online.

Exec1: Actually, some guys have already made an online version of one of our games and it's quite popular.

Exec2: CALL THE LAWYERS!!! Get that game taken offline immediately!!! We can't have someone else doing a better job at creating new versions of our games than us!

Exec1: There are a lot of people playing it. By taking it offline, we'll be disappointing a lot of people and making enemies of potential customers...

Exec2: Poppycock! Once we get that game taken down, we can take our sweet time making our own version. When we launch it six months to a year from now, people will have forgotten all about the other one. Plus we can charge a monthly fee! Or we can make them sit through ads! Or maybe we can force them to buy a copy of the physical game in order to get some kind of a code that they need to play online!

Exec1: People aren't going to be too happy with those alternatives. They like the version they're already playing.

Exec2: Tough! It's our game and people will play it our way! If they don't like it, they can go screw themselves!
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airlik, 4 Mar 2008 @ 7:58pm

say what?
I usually don't side with "big business" in IP suits, but in this case I can't help it. Come on, people! These two guys copied their game! Verbatim! The company should give them a couple million as thanks & as an advertising fee, perhaps, then maybe offer to employ them! At most! The programming is rudimentary, the idea is the real value here! I've played Scrabble since I learned to spell, I think it's a great game, and I'd love to play "Scrabulous" - but I don't think I'm going to if the owners aren't being compensated in any way. I believe in compensation for creative works - I downloaded a free eBook (Down and Out in the Magic Kingdom) then went and bought the hardback because I really enjoyed it and wanted the author to do well. Can you imagine if I had paid someone else for that book online, and the author hadn't received a thing? That would be fraud! These guys are making money from this, and should be happy if the company lets them keep even a small percentage of the advertising revenue the app is generating (most programmers are paid for work done and do NOT get a percentage of sales). The fact that they're holding out for "big money" is ... insane.

If the situation was reversed - ie, if a small game inventor was having his game ripped off by a corporation that was not paying the inventor any money - you'd all be screaming "rip-off!".

I think Scrabulous is a cool concept and the company should work with those guys - but expecting big bucks for what amounts to theft is... Scrandalous. (and on a triple word score that's...)
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Mark Mathson, 5 Mar 2008 @ 7:58am

Re: Re: Good and Bad
Business entities are entitled to protect their brand. When a product is developed and owned by someone (and not Open Sourced), they have legal rights to try to protect that product.

How they do so is obviously up to them. I agree that Mattel overreacted.
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Mike (profile), 5 Mar 2008 @ 10:36am

Re: Re: Re: Good and Bad
Business entities are entitled to protect their brand. When a product is developed and owned by someone (and not Open Sourced), they have legal rights to try to protect that product.

I never suggested they don't have the right. I merely pointed out that exercising that right is a bad business decision. You claimed it's a good decision, so I'm trying to understand why.
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