Scrabulous Is Fabulous

From the DC gun case to less life-threatening topics ...

As any Facebook participant will tell you, Scrabulous is one of the social network's most addictive features. Here's how it works: A player can challenge friends to online Scrabble games, complete with an exact Scrabble replica, a virtual dictionary and Wikipedia link to the rules of Scrabble.

The problem? This is one huge copyright infringement.

Hasbro and Mattell jointly own the rights to Scrabble. They do not take kindly to others making money off of their product.

Of course, anyone can understand authors wanting to retain control over their products. That's the whole point of copyright -- Congress and the Framers of the Constitution hoped to spur creativity by giving authors protection for their work. At the same time, the laws put a time limit on how long an author holds that exclusive right. This balance recognizes that creativity often begets creativity, and every creative work, at some point, must become a public good.

Scrabulous, unfortunately, came out too early, well before the copyright in Scrabble expired. But despite its fairly blatant infringement of the Scrabble copyright, there is no indication that the popularity of Scrabulous has harmed the sales of Scrabble. In fact, many users of Facebook say that they bought Scrabble only after playing Scrabulous.

So, Scrabulous is increasing sales of Scrabble. And yet Mattell and Hasbro can still sue? Under the twisted copyright regime, yes. Unlike with most lawsuits, Mattell and Hasbro do not have to show that the defendants are harming them right now. They only have to show a theoretical harm to their ability to use their copyrighted product in a market (like the online market), which they haven't yet entered, but very well might.

Therein lies the problem.

When copyright holders can stifle creativity, even in the absence of any actual harm, our copyright laws are not striking the right balance.

Barring divine (or congressional) intervention, the only hope for Scrabulous is a licensing agreement with Mattell and Hasbro. Let's hope the companies come to their senses and realize that Scrabulous is the best thing to happen to Scrabble since the invention of the triple-word score.