Facebook game Scrabulous is no longer available to users in North America as the Hasbro case develops. Hasbro is claiming that Scabulous is a trademark and copyright infringement on Scrabble.

It’s easy to side with the underdog in the case. Two guys from India did what Hasbro failed to do, bring a old game to Facebook that became an instant hit. Hasbro’s decision to sue Scabulous, instead of working with them, or even acquiring them, is a gross public relations failure, however copyright is a different matter. Scrabulous wasn’t a case of copyright infringement for personal use such as in downloading music, instead the founders of Scrabulous were making $25,000 a month, clear commercial copyright infringement. The RIAA and others may seek to claim that there is no difference between personal use and corporate gain, but depending on the country and law, there is a distinct difference. Most would consider a moral difference between the two as well.

Scrabulous will lose the case as Hasbro legally holds the copyright over Scrabble and derivative works, however the case highlights the failure of American copyright law in another way: the length of copyright granted under the Sonny Bono Act and the Copyright Act of 1976.

Scrabble should be in the public domain

Scrabble was created in 1938 by Alfred Mosher Butts. The game was originally known as Lexiko. In 1948, James Brunot acquired the manufacturing rights to the game and changed the name to Scrabble. Selchow and Righter acquired the rights in 1952 and the trademark in 1972. In 1986 the rights passed to Coleco, who quickly went belly up, with Hasbro then acquiring the rights. (source: Wikipedia)

The key to the history is the date that Scrabble was created: 1938, 70 years ago. Even if we take 1948, the year the game became known as Scrabble, the gap in now 60 years.

Copyright in the United States initially lasted for less than 30 years, but the length of time has been extended by Congress on numerous occasions. The 1909 Copyright Act set the duration of copyright protection at twenty-eight years with a possibility of a twenty-eight year extension, for a total maximum term of fifty-six years. The Copyright Act of 1976 took the length to “a term consisting of the life of the author and 50 years after the author’s death.” Notably the Act wasn’t entirely retrospective, with works published before 1964 that did not have their copyrights renewed 28 years after first publication year falling into the public domain. The Sonny Bono Act extended the tame frame further to 70 years post death.

Alfred Mosher Butts died in 1993, meaning that under current law, Scrabble will be protected under copyright until 2063. And yet, if Scrabble was treated under the copyright law it was initially published under, it would have come out of copyright in 1994.

Corporate greed vs the public good

The Copyright Clause of the United States Constitution authorizing copyright legislation reads: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Note the language: securing for limited times to Authors and Inventors. Some may argue against copyright completely, but as a concept enshrined in the United States constitution, it was meant to protect others from copying works so as to promote the creation of new works, where by the creators of such works could profit from them. How exactly do the creators of such works profit from their works when they’ve been dead 20 years, or longer? They don’t. The concept of copyright as a tool to promote science and arts has been replaced by legal acts of corporate greed. The only beneficiaries of extended copyright law, in both the 1976 Act and the later Sonny Bono Act are corporations who hold rights to those works.

The Public Good: Patent vs Copyright

In considering lengths of copyright, it’s important to consider the benefits of works entering the public domain. In the manufacture of drugs, American Patent laws grant 20 years exclusivity over a registered drug, after which time others may copy the patent for the production of generic medication. The legality of patents is granted under the same clause as copyright in the United States Constitution, but why such a lengthy difference in length between inventions and works of art?

There is a perceived public good with inventions entering the public domain. Any time you visit a drug store and buy generic medication that is significantly cheaper than the original, you gain from the expiry of that specific drugs patent. But there is a public good in art works be available in the public domain as well. We can legally perform, without restriction, a Vivaldi concerto, but we cant legally perform an Elvis song without paying for the rights to do so. That some may not consider Elvis worthy of the public good is a moot point: the concept of public good is not considered on a case by case basis, it is considered as a whole.

Most would accept that some period of exclusivity should be granted for new works of art, as per the Constitution, but there can be no public good in locking up works of art for hundred of years when we accept that inventions are not extended the same length.

Conclusion

American copyright law has become corrupted from the intent of the founding fathers to promote invention and art, to one that protects special interests without considering the greater good. Scrabble is 70 years old and is not only covered by copyright today, but will be covered by copyright for another 55 years, for no reason other than some well oiled lobbying of America’s so-called leaders. The intent of copyright is to encourage creativity by granting a period of exclusivity, but not at the exclusion of others with time. Copyright law as it stands today limits the creation of new works by denying the rights of others to create derivative works after a reasonable time. Copyright law today works against the greater good.

The last word from John Carroll at ZDNet: