Not So Scrabulous

In these kinds of situations, the plaintiff should have to either a) already have their own alternative product in place, or b) be legally required to create such an alternative product within a year of the judgment or else it’s rendered null.

Specifically in this situation, if Hasbro forces RJ Softwares to take down Scrabulous, Hasbro should then be legally required to create a Facebook widget that performs the same function, even if it’s something they charge for. And if they don’t have one available within a year, RJ Softwares can legally put Scrabulous back up.

Of course, to expect the law to actually be sensible, or to give even the tiniest amount of a shit about the consumers during inter-business disputes instead of exclusively the businesses, is definitely asking way too much.

And it’s not like I could just “vote with my dollars” or whatever and not buy Hasbro products, because, well, I don’t exactly tend to buy all that much from Hasbro to begin with. I’d have to actually steal something from Hasbro in order to financially demonstrate to them that I was angry with what they were doing. Just what is the Libertarian “Invisible Hand” solution for helping the Market “balance out” with regard to a company you already don’t buy anything from, anyway? I guess you could say “well, buy from their competitors”, but what if I don’t purchase the type of thing Hasbro has to offer in the first place? Should I just go out and spend an arbitrary amount of money with their competitors for no reason but to spite them? And how do poor people get to “vote”, then, in these situations? Or do they just not count because egalitarianism of any sort is for saps and fuckwads? I know this is a really dumb little example, boo hoo people on Facebook can’t Scrabble with each other, but extrapolating this, what would happen if Hasbro (or any other company) was doing something genuinely shitty and the only economic philosophy we had to work with was “oh, the Market will correct itself, we don’t need any government regulations or laws that make any kind of sense”?

Addendum: It’s been pointed out that Hasbro has a Scrabble Facebook widget, but a) It was only released this month, according to the article, and they’ve been pressuring the Scrabulous people for the last year or so trying to get them to take theirs down (and I remember they were actually forced to take it down or make changes to it at one point or another many months ago and it was unavailable for a while, but they were able to get it back up again); b) Yeah, I guess I kinda fucked up with the way I used Scrabulous vs Scrabble as an example, here, and it’s kind of unclear, but the real point I was trying to make (aside from my fuckup with the specificity here) is a more generalized ire about the fact that this actually happens a lot, where larger companies hold a patent or trademark or copyright or whatever else, and end up suing people who make variants on that product without themselves (the plaintiffs) offering any kind of alternative to consumers.

Additionally, consideration should be given when a competing company takes the initiative and gets a product out a substantial amount of time before whatever entity holds the copyright, trademark, etc. It’s hard to be competitive when someone can trademark a bunch of shit a long time ago and not really do much about it for years, and then you end up getting immensely fucked hard in the face after you fill the niche and suddenly the entrenched juggernaut comes along and tells you to fuck off because they finally got around to creating the same product you made (which itself probably made them aware of the demand in that particular area).

Anyway, sorry, I wrote this kind of poorly and didn’t make it clear where this particular example ended and my jumping off into generalities began (or where this case became more of a hypothetical example that was supposed to represent other situations), but hopefully this addendum will clarify.

20 thoughts on “Not So Scrabulous”

  1. From the second paragraph of the article:

    Though the application has been available since 2006, Hasbro began its crusade to have Scrabulous removed from Facebook earlier this year. The reason for the gamemaker’s sudden ire toward the application, which draws more than 500,000 daily average users, can be attributed to the launch of the official Scrabble online game through EA’s Pogo.com and Facebook this month. Currently, the official Scrabble Facebook application logs just under 20,000 users globally.

    Sounds like Hasbro has already created “a Facebook widget that performs the same function”, as you suggest they ought to be forced to do. Am I missing something here?

  2. I think you missed one there, Jabberwock – Hasbro making their own application is the whole reason they started pursuing the law suit in the first place.

  3. Well, I’m not an expert on generalized Libertarian principles, but I would imagine a big part of keeping things balanced would be not having a patent/copyright system that allows companies like Hasbro to keep a complete lock on the game forever and ever. Seriously, half of the problem with corporate America today is the up-fuckedness of intellectual property law.

  4. I think that addendum clarifies things better, yes.

    A possible solution to this sort of thing could be restricting a copyright to whichever medium the original concept is in. That way, Hasbro here could still protect their board game business while allowing for people to create a digital variation on the game.
    I haven’t really thought this idea through, mind, so there is most likely some disadvantage to the system too.

  5. Tenebrais:

    There would be disadvantages. Even if Hasbro isn’t making money from the app (or any app), you can’t go around violating a copyright. Hasbro has the right to restrict the name and likeness of its application however it so wishes, and I kind of agree with that.

    Even if I weren’t using my own name/product, I don’t think that gives someone else the right to snap it up and do whatever they feel like with it.

  6. I find it a bit overreactionary when you’re basically implying that people have an inherent right to have scrabble provided for them in the medium they desire. Scrabble is an intellectual property, just like novels or video games, and it’s really the owners’ right to determine if and when they or others offer it. A law forcing them to provide content is heading for the absurd, really.

    Don’t mind me, just a bit of contrary thought here.

  7. If they’re not going to provide it themselves, then other companies that DO provide it shouldn’t be prevented from doing so. It’s not about a customer’s inherent right to Scrabble, but about the right to do business.

    And it’s not that they’d be legally required, it’s that they’d be legally required if they wanted their suit to stick. There’d be no police saying “all right, boys, get to work, start coding up that Scrabble widget,” it’d be a judge saying “okay, RJ Softwares, you can now legally put your Scrabble widget back up, and Hasbro has lost their right to exclusivity for Facebook widget versions of Scrabble.”

  8. Why should a competitor have a right to the owner intellectual property, no matter how they distribute it? Facebook doesn’t own the IP, Hasbro does. Part of that is the right to say “No, we’re not going to provide it in medium x, for whatever reason.” That’s their prerogative, and just because they don’t provide doesn’t grant a third party the right to distribute just because the market wants it. Someone either has the right to control properties they own, or they do not. You’re arguing pretty firmly on ground that says ‘do not’ here.

  9. They do as long as they’re active about it. If there’s enough demand for Product X or Service Y that Business A owns the rights to, and Business A refuses to provide it for whatever reason, then Business B should be able to provide that product, at least during the interim until Business A gets their shit together. The company actually providing the product or service should be given more consideration for right to provide than the company that just owns the trademark or patent but is just sitting on it.

    (Actually, there’s something similar to this currently implemented for domain names, if I’m not mistaken. That is, a business can try to usurp the rights to a particular domain name if the person or entity that currently owns it isn’t doing anything with it.)

    Playing Devil’s Advocate for a bit and looking at this from a “free market” perspective that the market is supposed to regulate itself and determine what’s best through its own internal mechanisms, then if a competitor can offer a better version of a product that another business has been offering, or can fill a niche that the original business can’t fill, then wouldn’t demand determine which business should succeed? If we start using the government to enforce exclusivity rights, then we’re not really working toward a free market, are we? (Not that government doesn’t already side with big businesses over smaller ones, or business over individuals.)

    Or is it more about fortifying entrenchment instead of engaging in actual competition?

  10. The extreme libertarian argument for unrestricted intellectual “property” rights is, of course, that you have an absolute and exclusive right to make use of the contents of your own mind. The trouble with this argument is that once you express an idea through some medium and I receive it, the contents of your mind have also become the contents of my mind, and by the same logic I ought to have the very same right to express it and make a profit from doing so. That the idea originally entered my mind because someone else produced it is inconsequential; all ideas come from somewhere, after all, and as social animals many of our ideas come from interactions with other people.

    “Intellectual property” is primarily a legal fiction designed to encourage people to produce a good that would otherwise be underproduced due to the difficulties in making sure that people who consume it will pay for it; those are the grounds on which it can be defended, if it is to be defended at all. You can’t treat ideas as if they were made of some physical substance that can be locked up in a safe deposit box, and you can’t treat the human mind as if it were a safe deposit box either; if you did, you’d have to ban all speech, because causing an idea to enter somebody’s head would be a form of trespass. Even libertarians aren’t crazy enough to argue for that.

  11. Jabberwocky;

    Once again, you’re arguing that the demand of the people confers an inherent right to a product, even at the expense of the ownership of the creator of said product. Thus, people who have never paid for, developed, or had input to said product can make any knockoff they want, and provide it to the market. Why? Why does simple demand confer the right to go around the idea of ownership?

    LM;

    I’m not talking about regulating ideas, and I think my statements are pretty clear about that. I’m talking about the notion that once I -produce- a verifiable work based off an idea, that work is now my property. If you borrow ideas from it and form your own, distinctly different work, good. If you simply copy mine and distribute it to people without gaining my permission (in the form of license or however such things are arbitrated), that’s theft.

  12. But what counts as “distinctly different”? If you write a novel and have it printed in English as a hardback book, and I translate that novel into Chinese and sell copies of it engraved on clay tablets, I’ve violated copyright law, even though the only thing my novel has in common with yours is the ideas contained in it.

  13. nepphi: Because copyright and patent law exists to serve the needs of the people — to encourage artists and inventors to create by granting them a temporarily monopoly on the use of their work. “Intellectual property” doesn’t fit into that — it’s a recent innovation created by megalithic media corporations and the regulatory apparatus they’ve created.

    Scrabble is 60 years old. It doesn’t serve the commonwealth for the rules to a simple game to be held by ironclad force of law by a deathless organization.

  14. Oh I agree with you Jabber. Sure, if you invent something as cool as Scrabble then you deserve to make a bunch of money out of it. There should be a period during which you, as the person who had the cool idea, get to score loads of dollars for it. This encourages innovation and creativity.

    But thirty years later, if you haven’t come up with any more clever ideas then you don’t deserve to keep getting rich off the same old idea.

    And the already-rich people or organisations who funded the production of your original idea don’t deserve to keep making money off it seventy years later, either. That’s clearly wrong.

    Sadly America’s terrible IP laws have pretty much all turned into international IP laws. What can you do?

  15. @nepphi/ascendance:

    You seem to be mistaken about what IP is and why it exists.

    Scrabble is an intellectual property, just like novels or video games, and it’s really the owners’ right to determine if and when they or others offer it. A law forcing them to provide content is heading for the absurd, really.

    Scrabble is ‘owned’ only because there is a law which says that an idea like Scrabble is capable of being owned. The government is equally capable of passing a law forcing someone to provide content. Neither law is more or less absurd than the other.

    IP laws were not written to protect the creators of ideas. They were written to encourage the production of ideas and inventions for the benefit of the public.

    Unfortunately, many corporations now use IP law not to benefit the people, but to bludgeon competitors and prevent innovation. This is exactly contrary to the original intent of the law, and detrimental to the nation as a whole.

    So yes, it is very reasonable for the government to pass a new law dictating that corporations not abuse copyright to prevent ideas from benefiting the public.

  16. And once again we head into the notion of a collective good. As I do not agree with even the existance of such an entity, it’s clear we’re not going to reconcile this over a difference of terms. Rather than start that debate again, I’ll bow out.

    Cheers then.

  17. Your agreement with the notion is irrelevant. It is the legal principle under discussion. Legal principles do not change simply because you personally dislike them–if that were so, we would have no legal system at all.

  18. The US government is constituted to “promote the common welfare.” It’s right there in the design document. I’m sorry you can’t find it anywhere in your spunk-encrusted copy of “Atlas Shrugged.”

    Just like a goddamn Randroid — if they can’t set the terms of the debate, they make a big jizzy show of bowing out.

  19. @little_e-: It doesn’t help arguing about extant legal principles when the problem is bad law. In this case I think it is relevant to debate the genuine benefit of having ideas in the public domain.

    While I hold the opinion that a finite period of intellectual property ownership benefits everyone, for reasons previously stated, I’d be interested in hearing how the “there’s no such thing as collective good” argument applies in this case, as expressed by a geniune apologist.

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