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: Make Way for Faith-Based Alternatives

I tend to be supportive of faith-based alternatives in state funded social programs and education for a variety of reasons. For better or worse, we live in a time and place in which most such services are going to be publicly funded. To exclude faith based approaches is to eliminate a set of approaches that might be quite effective and sends a message about the propriety of faith-based perspectives in the public square.

Such approaches must be carefully designed to avoid compulsion and to ensure the availability of secular alternatives. But government should also avoid the temptation to remake faith-based approaches in its own image. I am opposed, therefore, to the expansion of federal and local civil rights laws to the extent it interferes with the ability of faith-based organizations to hire for mission, i.e., to prefer hires who share the group’s religious presuppositions.

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Priorities for the Next President: Stay Out of the Way of Local Government

My scholarship focuses on local government law, so you might assume that the next President would have little to do with my area of the law. Quite the contrary. In this era of shrinking government budgets and greater national debt, it is certainly conceivable that our next President will be faced with cutting spending on the federal level. It’s also plausible that Congress and the new President may make cuts in federal aid to state and local governments. I am somewhat agnostic on this issue. I have argued that decentralized decisionmaking leads to the more efficient and effective provision of goods and services, as well as policy outputs. I have also noted that much progressive policymaking occurs on the local level–more so than at the state and federal level. For these reasons, I might be inclined to encourage the new President to continue to fund local governments with block grants for various programs and services. But I also understand the need to get federal spending under control. What I am resolute on, however, is that any such cuts in funding should not be replaced with unfunded mandates for local governments from the federal government.

Federal policymakers, including the President, seem to like to influence matters on the local level. It is one thing to do this through conditions attached to federal funding (I don’t love this approach, either, but I can accept it given that localities can choose to reject the money if they decide the conditions are unacceptable). But it is entirely another thing to attempt to dictate policy on the local level from the federal level without proper funding. Such unfunded mandates run afoul of federalism principles. Moreover, cities (and even states) face drastically different challenges where macro-level policymaking–the “one size fits all” approach–does not make much sense. Localities must have the resources and the autonomy to craft individualized solutions to their unique problems. Hopefully this will include continued aid from the federal (and state) government. But it certainly should not be impeded by unfunded mandates from the federal government. This should be the priority of the new President with regard to local government: Stay out of the way.

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