Intellectual property (2023): Abandonware (Part Two)

Law School

Those who oppose these practices argue that distribution denies the copyright holder potential sales, in the form of re-released titles, official emulation, and so on. Likewise, they argue that if people can acquire an old version of a program for free, they may be less likely to purchase a newer version if the old version meets their needs.

From game developers with sympathy with abandonware.

Some game developers showed sympathy for abandonware websites as they preserve their classical game titles.

In this quote Richard Garriott states, “Personally, I think that sites that support these old games are a good thing for both consumers and copyright owners. If the options are (a) having a game be lost forever and (b) having it available on one of these sites, I'd want it to be available. That being said, I believe a game is 'abandoned' only long after it is out of print. And just because a book is out of print does not give me rights to print some for my friends.”

In this quote Tim Schafer states, “Is it piracy? Yeah, sure. But so what? Most of the game makers aren't living off the revenue from those old games anymore. Most of the creative teams behind all those games have long since left the companies that published them, so there's no way the people who deserve to are still making royalties off them. So go ahead—steal this game! Spread the love!”

In this quote Chris Taylor states, “If I owned the copyright on Total Annihilation, I would probably allow it to be shared for free by now (four years after it was originally released)”

Law.

In most cases, software classed as abandonware is not in the public domain, as it has never had its original copyright officially revoked and some company or individual may still own rights. While sharing of such software is usually considered copyright infringement, in practice copyright holders rarely enforce their abandonware copyrights for a number of reasons – chiefly among which the software is technologically obsolete and therefore has no commercial value, therefore rendering copyright enforcement a pointless enterprise. By default, this may allow the product to de facto lapse into the public domain to such an extent that enforcement becomes impractical.

Rarely has any abandonware case gone to court, but it is still unlawful to distribute copies of old copyrighted software and games, with or without compensation, in any Berne Convention signatory country.

Enforcement of copyright.

Old copyrights are usually left undefended. This can be due to intentional non-enforcement by owners due to software age or obsolescence, but sometimes results from a corporate copyright holder going out of business without explicitly transferring ownership, leaving no one aware of the right to defend the copyright.

Even if the copyright is not defended, copying of such software is still unlawful in most jurisdictions when a copyright is still in effect. Abandonware changes hands on the assumption that the resources required to enforce copyrights outweigh benefits a copyright holder might realize from selling software licenses. Additionally, abandonware proponents argue that distributing software for which there is no one to defend the copyright is morally acceptable, even where unsupported by current law. Companies that have gone out of business without transferring their copyrights are an example of this; many hardware and software companies that developed older systems are long since out of business and precise documentation of the copyrights may not be readily available.

Often the availability of abandonware on the Internet is related to the willingness of copyright holders to defend their copyrights. For example, unencumbered games for Colecovision are markedly easier to find on the Internet than unencumbered games for Mattel Intellivision in large part because there is still a company that sells Intellivision games while no such company exists for the Colecovision.

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