The Scrabulous Lawsuit: Heading Toward Default?

I’ve posted extensively recently on Hasbro v. RJ Softwares, the Scrabulous lawsuit, including a four-part series on PrawfsBlawg and two posts here on the similar litigation in India. See my last post for links to all of those materials, and see this article for background if you’re just tuning in.

In the PrawfsBlawg series, I noted a number of interesting legal issues that might be raised during any litigation or, even better, appeal of the dispute between Hasbro, the owners of the North American rights to Scrabble, and RJ Softwares et al., the makers of Scrabulous. In particular, I noted some surprising weaknesses with Hasbro’s copyright claims, including the blackletter rule that games are not copyrightable, lack of ownership over the Scrabble dictionary, and the apparent lack of registration of the Scrabble letter tiles. Even more troubling, I noted a possible formalities problem with all of the Scrabble copyrights dating back to the original 1948 registrations. On the plus side for Hasbro, I questioned the purpose of the under-theorized blackletter rule, although I ultimately concluded it played an important role in copyright law.

Much as I would like to see these issues play out in court, however, I may not get that chance. On Thursday, Hasbro filed proof of service with the court, showing that the defendants were served on August 13. My guess would be that a motion for a default judgement will be hot on its heels. For civ pro junkies, I’ll go into a few more details after the jump.

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The Indian Scrabulous Decision

Thanks to reader Apar Gupta, I have the text of the decision by the High Court of Delhi in Mattel, Inc. v. Agarwalla, a copyright and trademark action by Mattel against the Agarwalla brothers, the makers of Scrabulous. I posted a brief news item about the case earlier, and posted a four-part series on the American lawsuit against Scrabulous over on Prawfsblawg in August. (See Part I, Part II, Part III, Part IV.)

As the Agarwalla brothers reported a few weeks ago, the Indian decision held that Scrabulous did not likely infringe on Scrabble’s copyrights, but that the name “Scrabulous” does likely infringe on Scrabble’s trademarks. The court therefore issued an “ad interim injunction,” which I assume is the same as a preliminary injunction, against further use of the Scrabulous name. But my primary interest is copyright law, and the court’s copyright analysis, although very brief, is fascinating. Essentially, the court held that because the board and rules are necessary for game play, and game play is not copyrightable, therefore the board and rules are not copyrightable either. I think this probably goes too far, but it’s an interesting example of a court grappling with the nature of copyright in games.

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Priorities for the Next President: An Urgent, Measured Innovation Policy (Part II)

So, to take up the question I asked yesterday, what does “measured urgency” look like?  I would offer a few suggestions.  First, an independent commission needs to undertake legislative revision of the Patent Act.  The Patent Act of 1952 was an incredibly well-written, concise act.  Current legislation has attempted to graft new procedures onto the Patent Act, which would have the consequence of creating a deeply incoherent act.  The new President should appoint a commission of fairly neutral persons to sit down and decide what will become the Patent Act of 2009, an act that will serve as the framework for the next 50 years of patent law.  Such an act should take into account the significant changes that have impacted the patent regime in the 21st century: the increase in agencies regulating the Patent Act, such as the ITC and the FDA; the need to change the role of the USPTO; and the increasing harmonization of patent law in the international environment.  The commission would also increase the legitimacy of the process.  Current patent reform is simply not working.  Previous patent reform has often been seen as another cynical attempt by powerful chairpersons to rewrite patent law on behalf of their most powerful donors.  These deeply cynical efforts have been accompanied by a failure to hold transparent and representative hearings.   A commission would have the benefit of having the ability to channel interest group action in a positive way through open hearings and submitted comments.  Such a commission would also have the ability to stay above what has proven to be a rugby-like scrum on the part of lobbyists to get the narrow best interest for their clients.  I am all for an active and healthy self-interest on the part of the interest groups, but there must be a productive way to channel those interests in a way that serves patent law better.

Continue ReadingPriorities for the Next President: An Urgent, Measured Innovation Policy (Part II)
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