Here, as was the case with Scrabulous, was an excellent opportunity for a company to really shine.  Instead, they reacted like many companies with heavy investment in Intellectual Property and went straight to the dual guns of infringement and takedown.

By enabling our technology and IP to run on sound cards for which it was not originally offered or intended, you are in effect, stealing our goods.  When you solicit donations for providing packages like this, you are profiting from something that you do not own.  If we choose to develop and provide host-based processing features with certain sound cards and not others, that is a business decision that only we have the right to make.

Often, we in the IP business fall back on old ways of doing business – ways that may not allow us to be as successful in the new economy as we were in the old.  IANAL, and I am not saying Creative was not within their rights in doing what they did.  But that’s not really the point at all.  There are several lessons in this, and here are a few of my thoughts as to how Creative might have handled this differently:

1. Public discussion forums are probably not the best place to post C&D notices.  Contacting daniel_k directly would have been my first choice.
2. Chalking up not giving customers what they are asking for to a business decision is well, a bad business decision.  Are customers always right?  No, but in this case it seems like there was an overwhelming outcry to this incident.
3. Beating up your biggest fans is not going to win you new fans.  daniel_k is obviously a huge supporter of Creative products.  He must own them, and to put in his own time and effort to contribute to the Creative community takes the kind of effort that only the most hardcore of fans would be willing to put forth.
4. Why not contact daniel_k directly (see item #1) and collaborate with him to make his driver releases at least unofficial and unsupported?  Creative looks like a hero for finally getting Vista drivers to market, and scores points for “getting it.”  If it was just a matter of the little (optional) donation button daniel_k had on his site, that seems like an easy thing to solve in a phone call or an email.

The rules are different now.  If not, we must at least acknowledge that they are changing.  I think Consumerist summed it up nicely:

Rule of thumb for bad news in the mainstream media: release it Friday so it’s buried over the weekend. Rule of thumb for the web: don’t infuriate thousands of your customers right before you decide to tune out for 48 hours.

Two weeks ago, Scrabble owner Hasbro sent a take down notice to Facebook.

Copyright infringement? Maybe. Big missed opportunity for Hasbro? Definitely.

Why shut Scrabulous down when there are so many other online clones out there? Hasbro probably has a case with respect to name confusion. But I think the real missed opportunity for Hasbro here was in not embracing this huge, connected, engaged (and vocal) community who loves their game.

Why not hire the the Aharwalla’s as game developers, re-brand Scrabulous as Scrabble and reap the rewards? If 2 Scrabble fans can cultivate a community base of 2.3 million voracious players, imagine what might be possible if a company like Hasbro threw their weight behind it?

Perhaps Hasbro has sold the electronic or online rights to the game to a 3rd party and now must defend that Agreement.  If so, fair enough and then this becomes a missed opportunity of another sort.

Facebook users obviously love games – they are some of the most installed and most active Facebook applications available. For a company like Hasbro, this could just be the tip of the iceberg. Imagine Battleship, Monopoly, Axis and Allies, or any number games from Hasbro’s huge portfolio as Facebook applications.

What do you think? Clear case of copyright infringement, or missed opportunity to engage fans in the social media era?

(Hat tip to Josh Quittner)