April 8, 2008

Scrabbling for Legal Rationalism: No Copyright for Games

Filed under: Chilling Effects, code, copyright, law — wseltzer @ 2:45 am

ScrabulousThe New York Times reports that RealNetworks has introduced an “authorized” version of “Scrabble by Mattel” to Facebook, in an effort to compete with the enormously popular Scrabulous. CNet is puzzled, in part because the “official” app is unavailable in the United States or Canada.

For those not yet hooked, Scrabulous has been providing a Facebook application that lets Facebook friends play the game of Scrabble online. If the game numbers increment sequentially, it has served more than 2 and a half million games, and claims 629,256 daily active users.

In January, BBC and others reported that the Scrabulous team and Facebook had received takedown demands from Hasbro and Mattel (the two companies divide worldwide rights to the Scrabble trademark). Months later, however, Scrabulous remains online, probably because the threats’ legal merits are murky: there are few rights to “a game” as such.

Three kinds of intellectual property might protect aspects of a game — patent, trademark, and copyright — but each has limits that leave plenty of room for imitators and emulators.

  • Patent: At its heart, a game like Scrabble is an idea or “method of operation,” a set of procedural rules. Those ideas might have been protected by patent, when they were new, useful (for entertainment), and non-obvious, but any patents on Scrabble, invented in 1938 would have since expired. So the patent Scrabble’s creator got
    U.S. Patent 2,752,158 in 1956, for “an apparatus designed to facilitate scoring procedures in connection with the playing of board games” is now in the public domain — we can all use its jagged-edged squares to facilitate scoring by point-value of the square on which a piece rests.

  • Trademark: Trademark protects distinctive source-identifying brands. This might be Hasbro/Mattel’s strongest claim, but it’s a narrowly scoped one. The trademark owner has the right to prevent others from using a mark in a manner likely to cause consumer confusion. Trademark protects only the brand, not the underlying game. So if “Scrabulous” were deemed likely to cause confusion about the source or sponsorship of the Facebook app, its owners would just have to change the name. Trademark can’t bar them from reintroducing the same game under a name such as “WordCross.”
  • Copyright. Copyright is the most frequently cited claim, and the most mistaken. Copyright protects expression, not ideas, and the statute explicitly excludes “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” The U.S. Copyright Office, which has presumably had to fend off scores of copyright seekers with game ideas, devotes a page to the subject, saying:

    The idea for a game is not protected by copyright. The same is true of the name or title given to the game and of the method or methods for playing it.

    Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

    Some material prepared in connection with a game may be subject to copyright if it contains a sufficient amount of literary or pictorial expression. For example, the text matter describing the rules of the game, or the pictorial matter appearing on the gameboard or container, may be registrable.

    So the “methods of operation” — the rules of the game, should be uncopyrightable no matter how intricate. Their particular expression in an elegantly written manual may be protected, but another is free to extract the underlying ideas and rewrite the manual to describe an identically played game.

    Moreover, the board design for Scrabble contains only de minimis separable expression. The arrangement of double-letter and triple-word scores is part of the method of play — like tennis’s “if you cross the fault line while serving, the serve is no good,” it merges with the unprotectable idea. We need to use the same rules to interoperate (play a challenge game!), just as once Lotus popularized a set of shortcuts for spreadsheet menus, others needed — and were permitted — to use that functional command hierarchy.

    The coloration of Scrabble squares, while minimally expressive, also has a primarily functional purpose, to indicate the scoring. By contrast, a decorative board such as Candyland would have copyrightable expression — one could reproduce the rules without the fanciful lollipop woods. The Scrabble board looks more like the accounting ledger of Baker v. Selden, the 1879 case in which the Supreme Court denied copyright protection to an accounting method and the forms necessary to implement it.

    The Internet provides a host of new opportunities to reimplement classic games, without the barriers of physical distribution. As entrepreneurs rush to capitalize on the opportunies, they shouldn’t be scared off by vague legal threats. Hasbro and Mattel may have their trademark, but we all have the right to cross words.

  • April 1, 2008

    Who needs more computer security education?

    Filed under: law, networks — wseltzer @ 5:34 pm

    Berkman’s Stop Badware project just released a new study, in which they report the “paradox” that most users feel safe online, despite a rash of malefactors and potential mishaps:

    CAMBRIDGE, Mass., March 31, 2008 - Nearly 90 percent of Americans say they feel safe online despite the rising tide of spyware, phishing and other badware threatening Internet users, according to a new poll sponsored by StopBadware.org, the consumer protection initiative aimed at combating dangerous software.

    “What we have here is an Internet security paradox,” said Maxim Weinstein, who manages the StopBadware.org team at Harvard Law School’s Berkman Center for Internet & Society. “Americans see themselves as safe online, even as we see an ongoing trend of organized criminal elements using the Internet to target unsuspecting users.” Weinstein will testify at the Federal Trade Commission on April 1 about how to better educate users about the dangers of phishing, a deceptive practice responsible for $2.1 billion in identity theft damages last year, according to Consumer Reports.

    I wonder, though, do we think that mistaken feeling of safety is a bad thing? I don’t — I think it’s great that we have enough of a safety net that people who don’t have the technical competence to deal with PC security threats nonetheless are being generative and participatory. I don’t think we’d gain by scaring those Internet users, even through education. While malware problems are often compared to public health, we don’t have a solution that’s as easy and effective as one-time vaccination to make computer users safer.

    I’d suggest instead that social insurance and systematic efforts to prosecute criminal use of malware are better responses than demanding that individual Internet users pay attention, educate themselves, and stay vigilant against ever-mutating threats.

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