News.com is reporting (via Fortune) that Hasbro, manufacturer of the classic board game Scrabble, is taking action against one of Facebook’s most popular and successful add-on applications, Scrabulous.
I might only be halfway through law school (and therefore none of what I say should be taken as actual legal advice), but I knew this day would come. As an avid fan of Scrabble (and Scrabulous) and as a student of intellectual property law, it was all too apparent that the folks behind Scrabulous had not done their (legal) homework.
I knew something was up after reading an article in the NY Times last December.
In early June, a Scrabulous.com user suggested they put the game on Facebook to broaden their reach, so they wrote to Hasbro to make sure they were not engaging in copyright infringement. The brothers say they never heard back from the company. (Representatives at Hasbro did not respond to queries on the matter.)
A lack of response does not constitute acquiescence. One month later and it appears the inevitable has happened.
In other words, the brothers behind Scrabulous appear to be infringing on Hasbro’s intellectual property rights. More specifically, Hasbro’s right to create and/or license derivative works of its copyrighted property. Without express authorization from Electronic Arts (according to News.com, Hasbro has licensed “all electronic rights” to EA) to create a digital work based on Scrabble, Scrabulous remains an unauthorized derivative and has little chance of surviving any legal action.
Ultimately, it appears that Hasbro is coming after Scrabulous primarily because of all the money the makers are getting from it, an estimated $18,000 a month. More interesting (and far less likely) are issues of secondary liability, as in, can Hasbro/EA sue Scrabulous users for indirect copyright infringement? However, there is little to no chance that the companies would risk such negative attention given the circumstances.