Glenn Kelman Gets It Wrong On Creative Rights

Glenn Kelman recently observed that Silicon Valley pundits have gone off the deep end arguing that intellectual property should be free Free FREE! Glenn’s correct- we all gotta eat, and if we can’t get paid for our work, most of us won’t do it. That applies to musicians, visual artists, computer programmers, mechanical engineers, and physicists.

But Glenn goes too far when he implies that the only issue here is “what’s mine is mine.”

He discusses the Hasbro/Scrabulous brouhaha and points out that the TechCrunch blog is hypocritical when it criticizes Hasbro’s heavy-handed tactics against the Scrabulous knock-off of it’s Scrabble game, but is outraged when Facebook is copied.

What he misses is that ownership of intellectual property should and does have limits.

On the legal side, games are not subject to copyright.

CluelessEven if they were subject to copyright, it’s clear that a lot of games are derived from other games (Scrabble itself is derived from crossword puzzles and from data on the New York Times- should Hasbro have to pay the NYT for every game? No- Scrabble is sufficiently different from crosswords that it’s really a new thing.) I haven’t played Scrabulous, and I’d stipulate that it probably IS a direct ripoff, and that direct ripoffs are sleazy (though a direct ripoff of something from 1936 is different than a direct ripoff of a new piece of art; are the modern remakes of Shakespeare’s Macbeth or of Jane Austen sleazy?)

The basic issue is of public good versus stimulating creative output. Copyright and patents were designed to have limits (in particular time limits) which would let creators profit from their labor, but would also allow others to (eventually) build on their work. There was a recognition that the individual right to profit is important, but that societal good (both in terms of reducing the price of the work, and in terms of the ability to derive works) is also important.

It’s complicated. At least part of the reason it’s complicated is that art and technology are not zero-sum games. Eli Whitney didn’t make money on the cotton gin, and that’s a shame and a crime. But he also made slavery uneconomic (though I don’t think that was his goal), and that turned out to be a very good thing. Volvo invented the modern seatbelt; would it have been reasonable to say that other automakers be disallowed by law from manufacturing seatbelts? If seatbelts had only been in Volvos (and never legislated), would we have airbags? Would we have three-point belts (instead of the early lap belts)? Maybe, maybe not.

Glenn is right to point out the moral shallowness of the simplistic “artists should work for free because people don’t want to pay them” argument. However, he’s wrong if he swings to the other side (“society should assure that only the creators of intellectual property can benefit economically from that property.”) The fair and responsible course is somewhere in the middle.

I found the photo on Sue Parrill’s site, though I believe it’s owned by Paramount.


  • Glenn Kelman

    Personally, I think a remake of Shakespeare adds more to Shakespeare than Scrabulous adds to Scrabble…

    And somehow it seems different to protect a fundamental technology that can be used across an industry in different applications rather than a particular game…

    But otherwise I agree with everything and even where I don’t… well said Michael!!!!

  • Anon

    You really shouldn’t post anything about intellectual property law until you actually learn something about it. You’re completely wrong about copyright protection being unavailable to games and the rest of your post is just as clueless.

    To understand why, you have to understand that copyright does not protect an idea, rather it protects the authors original expression of the idea.

    For example, copyright law cannot be used by John Grisham to prevent others from writing legal thrillers based on the concept of an associate working at firm run by corrupt partners (which is essentially the idea behind Grisham’s book “The Firm”). However, Mr. Grisham can use copyright law to stop others from making copies of “The Firm” because that book is his expression of the idea.

    In the same way, Hasbro cannot use copyright law to stop somebody from making a spelling game. However, Hasbro CAN use copyright law to stop somebody from copying the layout of the Scrabble gameboard because that layout is Hasbro’s expression of the idea of a spelling game.

    Also, you’ve completely ignored Hasbro’s trademark rights in Scrabble. Read some of the comments to Glen’s post.

    Last, I want to address your semi-coherent discussion of the term of intellectual property rights. Copyright and patent rights do have limited terms. Trademark rights (e.g., the name “Scrabble” for a game) and trade secret rights (e.g., the Coca-Cola formula) can be perpetual if properly maintained.

    If you’re correct that Scrabble was first published in 1936, then Hasbro may have copyright until 2036. So don’t copy the board until 2037. Don’t like that? Take it up with Congress. And almost every other country in the world that agreed that 100 years is the appropriate term for copyright.

    If you want to know more about copyright, I suggest you hit wikipedia for a very brief & high level overview. The copyright office is a notoriously poor place for beginners to find information.

    Oh, you’re also wrong about Eli Whitney and the cotton gin. It’s well known that Whitney patented the cotton gin. He didn’t make money because he chose a bad business model. There’s a very good explanation here:

    (And for all you nit-pickers out there, yes, I know that not every work gets a 100 year term)

  • Anon

    And when did Redfin start moderating comments?

  • Nils Gilman

    The fundamental thing that Scrabulous improved over Scrabble was removing the tedium of waiting for your opponent to move. That tedium is endemic to over-the-board, synchronous Scrabble. What Scrabble player hasn’t experienced the foot-tapping annoyance of watching his opponent sit for fifteen minutes silently shuffling her tiles? By leveraging the asynchonous possibilities of the Web, Scrabulous took all that frustration away.

    For an endlessly impatient guy like me, that was a big big deal. A game-changer, literally.

  • Michael Smedberg

    Here’s the section of the Wikipedia article about Eli Whitney’s trouble making money on the cotton gin:

    Whitney received a patent (later numbered as X72) for his cotton gin on March 14, 1794; however, it was not validated until 1807. Whitney and his partner Miller did not intend to sell the gins. Rather, like the proprietors of grist and sawmills, they expected to charge farmers for cleaning their cotton – two-fifths of the profits, paid in cotton. Resentment at this scheme, the mechanical simplicity of the device, and the primitive state of patent law, made infringement inevitable. As Whitney and Miller were unable to produce enough gins to meet demand, imitation gins began to spread. Ultimately, patent infringement lawsuits consumed the profits and their cotton gin company went out of business in 1797.[2]