Nancy Scola: The mission statement of the "Save Scrabulous" Facebook group -- 48,000 members strong and growing -- asserts this: "The copyright infringement is obvious and, in retrospect, the developers of Scrabulous should have done more to create their own spin on it." Do you agree with them that what we're looking at in this situation is a clear case of copyright infringement?

Alex Curtis: I haven't read the formal claims, but from parsing through what the Reuters article wrote it's not clear that this is a case of copyright infringement but instead one of trademark infringement. It's possible because of at least the close spelling that consumers might confuse the source of the makers of "Scrabulous" with the makers of "Scrabble." It's still unclear, but at a minimum it appears to be a misstatement by the media that this is a copyright claim, and is instead a move to protect a trademark.

Copyright grants an exclusive right to the creator of an original work expressed in a tangible medium. It doesn't protect ideas, per se, it's the specific expression of those ideas. The protection of ideas is the purview of patent. Trademark is a different kind of "intellectual property," because instead of being exclusive rights based it's more of a consumer protection. Trademark is used to help consumers identify the source of a product or service. The creators of Scrabble would use trademark to protect the name "Scrabble." Copyright might be used to protect the specific expression of the layout of the board and maybe the specific look of the tiles, except to the extent that those expressions are functional.

The functional aspects of the game -- how many tiles are on the board, strategic placement of the tile multiplier spots, those are more than likely functional parts of the game and not a "creative" work that copyright would protect. The functional ideas, those again, would be protected by patent, and you can look that up for Scrabble -- it's application #02752158, dated June 26, 1956.

I don't know if Hasbro/Mattel are claiming copyright protection here or not. A trademark claim makes sense, a copyright claim doesn't so much. That's because how a game is played -- the rules -- can't be copyrighted. It's functional, and that needs to be protected by a patent. Now, lets say that the Scrabulous creators went and bought a Scrabble box off the shelf, grabbed the instructions of how to play, and copied them word-for-word onto the Scrabulous Facebook application page. That'd be a violation of copyright, because the Scrabble people own a copyright in the specific way they expressed the instruction manual. But there's a difference in how a game is played (not copyrightable), and how someone explains how to play the game (copyrightable). The first is functional, the second is creative.

Scola: Pretend for that you're counsel for Hasbro/Mattel and you just stumbled across Scrabulous. The name is clearly a takeoff on the name of one of the games in your stable. This thing looks and plays just like Scrabble, down to the point values on the tiles. Users of Facebook, a giant and growing web platform, are clearly smitten with it. How would you have advised them to proceed?

Curtis: I'd advise them to contact the creators of Facebook and Scrabulous and let them know clearly that we thought the name of their game, Scrabulous, could cause confusion as to the source of the owner of our game, Scrabble. However, I don't think that I could advise my clients, at least not with a straight face, that there was a copyright claim. I'd have to explain to my clients that, essentially, the game play of Scrabble is in the public domain in the way that dominos, poker, and mahjong are, but that they could protect the name of the game. And the specific expressions of their version of the game -- how the gameboard looks, how we express the rules, and other non-functional aspects of the game -- via copyright.

Scola: So much of the reporting on this situation -- from the BBC to Wired News -- has attached the phrase "copyright infringement" to Scrabulous without much explanation or any substance to back up those claims. After years of RIAA aggressiveness on copyright, those words are enough to strike fear in the heart of the strongest among us. How much of this is a language problem rather than a legal one?

Curtis: I think you've hit the nail on the head--and it's the point that John Bergmayer hammered home on our blog. It's what groups like ours are combatting all the time -- general copyright ignorance of what copyright protects and of consumer rights under the law. If reporters or the public don't know the works that copyright can protect and not protect, how can they know their legal rights if the RIAA knocks on their door with an infringement claim? I don't want to blame the journalists about miscommunicating the facts here because I don't have the claims in front of me, but not challenging where the specific copyright claims were is a problem here. I would have helped immensely if one of these mass publications could have drawn a little chart to explain what IP (copyright/patent/trademark) does what, as a little cheat sheet to educate the reader.

Thanks so much for sharing your expertise, Alex. Public Knowledge's website offers primers on copyright, trademark, and patents. And should Scrabulous go offline, there's always Facebook Texas Hold 'Em.