July 2008Unethical Websites

Facebook 

It had been rumored and threatened for months, and finally happened: the owners of Scrabble sued the creators of Scrabulous, an on-line version of the game that has found millions of players all over the world, most of them through Facebook, which carried it as one of its most popular applications. As a copyright infringement suit, this should be a slam-dunk; it’s hard to see that Scrabulous has a leg to stand on. Hasbro, which acquired the game when it acquired Milton Bradley (which had previously bought original Scrabble-maker Parker Brothers) brought the suit along with Mattel, which hold the international rights to the brand. Facebook, which made it possible for Scrabulous to become so popular that it attracted the suit, is now out of the crossfire. 

Lucky them. The arguments put forth by the pirated game’s creators, players and supporters are simply a collection of invalid rationalizations: 

• “The popularity of Scrabulous helps sell Scrabble games.”   That’s an argument for why the owners of Scrabble’s copyright might want to forgive the infringement, not an argument that the infringement was right or fair.
• “The game has millions of fans.” This warmed over “Everybody does it.” The argument was worn out during the file-sharing debates. It’s still taking someone else’s property.
• “More people will be able to enjoy Scrabulous because it’s on Facebook than the authorized version, which will soon be available on a less popular website.” Well, convenience is not a sufficient justification for using someone else’s property without permission.
  

The there is the argument that Scrabble is a universal, public domain game, like chess, or checkers. The problem: it isn’t. Scrabble was the creation of an out-of-work architect, Alfred Mosher Butts, in 1931. His first attempt at a patent was denied, and it was 17 years before he found a manufacturer, which renamed his game “Scrabble.” Eventually Scrabble became a craze, until almost every middle-class home has at least one of the original plum-colored boxes with the smooth wooden tiles. It became a standard, as basic a board game as Parcheesi. Over time, The Scrabble brand was passed from manufacturer to manufacturer, ending up with Hasbro in 1989. The British game maker J. W. Spear & Sons bought the rights outside North America,  then that company was bought by Mattel in 1994. It was fading from popularity, like all board games in this on-line culture, until two brothers in Calcutta named Rajat and Jayant Agarwalla introduced their first Scrabble knockoff web site called Scrabulous.com. In May 2007, they introduced the game as a Facebook application, and it became an international web phenomenon. And an entirely illegal one.

Facebook had to know better. Under federal law, internet service providers are generally exempt for their users' actions until they become aware of a specific infringement. Here was an application using and profiting from the property of two other companies. Facebook could claim, perhaps, that they didn’t know (and didn’t want to know) if Scrabulous had been properly licensed; that seems unlikely. So having attracted thousands to its social networking site by passively allowing Scrabulous to flourish, as soon as the lawyers filed their papers, Facebook immediately dumped the Agarwallas for the legal, law-suit-free version.

All the damages claimed by Hasbro in its suit against Scrabulous were aided and abetted for its own profit by Facebook. Great footwork, don’t you think? Look the other way while an illegal endeavor attracts users to your site, and then drop it as soon as you can no longer plausibly claim that you don’t know what’s going on. >P? Brilliant legal strategy, and unethical to the core.