Abandonware

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Abandonware are discontinued products for which no product support is available, or whose copyright ownership may be unclear for various reasons. Abandonware may be computer software or physical devices which are usually computerized in some fashion, such as personal computer games, productivity applications, utility software, or mobile phones.

Definitions of ‘abandoned’ vary; generally it refers to a product that is no longer available for legal purchase, over the age where the product creator feels an obligation to continue to support it, or where operating systems or hardware platforms have evolved to such a degree that the creator feels continued support cannot be financially justified. Software companies and manufacturers may change their names, go bankrupt, enter into mergers, or cease to exist for a variety of reasons. When this happens, product rights are usually transferred to another company that may elect not to sell or support products acquired.

In most cases, software classed as abandonware is not in the public domain, as it has never had its original copyright revoked and some company or individual still owns exclusive rights. Therefore, sharing of such software is usually considered copyright infringement, though in practice copyright holders rarely enforce their abandonware copyrights.

People have distributed old software since shortly after the beginning of personal computing, but the activity remained minimal until the advent of the Internet. While trading old games has taken many names and forms, the term ‘abandonware’ was coined by Peter Ringering in late 1996. Ringering found classic game websites similar to his own, contacted their webmasters, and formed the original ‘Abandonware Ring’ in 1997. This original webring was little more than a collection of sites linking to adventureclassicgaming.com. Another was a site indexing them all to provide a rudimentary search facility. Within months the Interactive Digital Software Association sent cease and desist letters to all sites comprising the Abandonware Ring, which led to most shutting down. An unintended consequence (called the Streisand effect in internet parlance) was that it spurred others to create new abandonware sites and organizations that came to outnumber the original Ring members. Sites formed after the demise of the original Abandonware Ring include ‘Abandonia’ and ‘Home of the Underdogs.’

Rarely has any abandonware case gone to court. In 2006 the Library of Congress approved an exemption to the DMCA (Digital Millennium Copyright Act) that permits the cracking of copy protection on software no longer being sold or supported by its copyright holder so that they can be archived and preserved without fear of retribution. It is still unlawful to distribute copies of old copyrighted software and games, with or without compensation, in any Berne Convention signatory country.

Several websites archive abandonware for download, including old versions of applications which are difficult to find by any other means. Much of this software fits the definition of ‘software that is no longer current, but is still of interest,’ but the line separating the use and distribution of abandonware from copyright infringement is blurry, and the term abandonware could be used to distribute software without proper notification of the owner. The ‘Internet Archive’ has created an archive of what it describes as ‘vintage software,’ as a way to preserve them. The project advocated for an exemption from the DMCA to permit them to bypass copy protection, which was approved in 2003. The Archive does not offer this software for download, as the exemption is solely ‘for the purpose of preservation or archival reproduction of published digital works by a library or archive.’

Software can be considered abandoned when it can only be used with obsolete technologies, such as pre-Macintosh Apple computers. Companies do sometimes voluntarily relinquish copyright on software, putting it into the public domain, or re-license it as free software or as freeware. Id Software is an early proponent of this practice, releasing the source code for the game engines (but not the actual game content, such as levels or textures) of some older titles under a free software license. Other examples include Amstrad, which supports emulation and free distribution of CPC and ZX Spectrum hardware ROMs and software, and Revolution Software, which released their game ‘Beneath a Steel Sky’ as freeware and gave the engine’s source code to the authors of ScummVM to add support for the game. Transfer of public domain or freely licensed software is perfectly legal, distinguishing it from abandonware which still has full copyright restrictions.

There are groups that lobby companies to release their software as freeware. These efforts have met with mixed results. One example is the library of educational titles released by MECC. MECC was sold to Brøderbund, which was sold to The Learning Company. When TLC was contacted about releasing classic MECC titles as freeware, the documentation proving that TLC held the rights to these titles could not be located, and therefore the rights for these titles are ‘in limbo’ and may never be legally released. However, the chilling effect of drawing a possible lawsuit can discourage release of source code. Efforts to persuade IBM to release ‘OS/2’ as open source software were ignored since some of the code was co-developed by Microsoft.

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.

Proponents of abandonware argue that it is more ethical to make copies of such software than new software that still sells. Those ignorant of copyright law have incorrectly taken this to mean that abandonware is legal to distribute, although no software written since 1964 is old enough for copyright to have expired in the US. Even in cases where the original company no longer exists, the rights usually belong to someone else, though no one may be able to trace actual ownership, including the owners themselves. Abandonware advocates also frequently cite historical preservation as a reason for trading abandoned software. Older computer media are fragile and prone to rapid deterioration, necessitating transfer of these materials to more modern, stable media, and generation of many copies to ensure the software will not simply disappear. Users of still-functional older computer systems argue for the need of abandonware because re-release of software by copyright holders will most likely target modern systems or incompatible media instead, preventing legal purchase of compatible software.

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. Copyright law does not recognize the term or concept of ‘abandonware.’ There is a long held concept of abandonment in trademark law as a direct result of the infinite term of trademark protection. Currently, a copyright can be released into the public domain if the owner clearly does so in writing; however this formal process is not considered abandoning, but rather releasing. Those who do not own a copyright cannot merely claim the copyright abandoned and start using protected works without permission of the copyright holder, who could then seek legal remedy. Hosting and distributing copyrighted software without permission is illegal. Copyright holders, sometimes through the Entertainment Software Association, send cease and desist letters, and some sites have shut down or removed infringing software as a result. However, most of the Association’s efforts are devoted to new games, due to those titles possessing the greatest value.

Once the copyright on a piece of software has expired, it automatically falls into public domain. Such software can be legally distributed without restrictions. However, due to the length of copyright terms in most countries, this has yet to happen for most software. All countries that observe the Berne Convention enforce copyright ownership for at least 50 years after publication or the author’s death. However, individual countries may choose to enforce copyrights for longer periods. In the United States, copyright duration is determined based on authorship. For most published works, the duration is 70 years after the author’s death. However, for anonymous works, works published under a pseudonym or works made for hire, the duration is 120 years after publication.

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