Things that should be done to break the piracy debate.

[bluestarultor]

Originally Posted by synkr0nized

Oh, this is a good place for me to ask you, Blues, since I didn't want to tard up that other thread with this discussion.

Do you have references - that aren't Abandonia's pages - that prove the legality of "abandonware"? I found none today when I went poking about, and most of what I came across affirmed the illegality of it regardless of the very positive and good intentions of the people running such sites. I ask this not to argue with you, but because I really want to know what legal standing these sites are sitting on.

I saw provisions for public/library archives and free reign for software that has fallen out of copyright, but for most software it appears that the copyright should still be protecting it. Not being able to purchase something and/or lack of action on the part of the copyright holders wasn't meant to be construed as a green light to go.

Here's some stuff I came across:

Gamespot article that interviews game developers, abandonware site owners, and some gamers

US copyright law allows an exemption for places, such as the Internet Archive [who pushed for this], to have non-infringing uses of such software to be able to preserve software without the copy protection schemes it may have once had (eg: requiring a dongle to be attached to the machine, obsolete source media). This is not claiming it is OK for users to download free copies of the software.

On the other hand, the Orphan Works Act of 2006 seems to provide provisions for "infringers" to be fine if they conduct a "reasonable search" for the correct information and original copyright holder, etc. Technically speaking, though I am no lawyer, it doesn't appear to count "hey we can't buy this in a store" as a reasonable search.

more info overall, including the 2008 update to the same act; not much different



e: I forgot to note that I agree with you that it's much easier, on all sides, to recognize that people like older software and to release it in some fashion, either as a free download [hey, some companies are doing this -- see our C&C discussion, Sim City, etc.] or, like you suggested, for some nominal fee. The legal fees and unnecessary trouble of going through the rig-amoral is likely one of the reasons abandonware sites don't get bugged too much, especially when the original software company doesn't exist any more.

Well, it's a lot more complicated than "not being able to buy it." See, abandonware, in the definition I'm most familiar with and personally use, is software which has been either intentionally abandoned by the parent or which doesn't fall under any other legal ownership. This is software which no longer has any existing rights-holders, including an absence of an existing parent company, ESA protection, and inherited owner of the property. If ANYONE owns rights to it, it's not abandonware, and actual abandonware sites will conduct research, in some cases above and beyond simply "reasonable," to make sure they can't find anyone who can speak for it legally. The one I frequent even has a policy whereby contact from an previously unknown rights-holder means an instant removal of the download. The problem with abandonware is that there's currently no law regulating it, which means business sources want to be able to make it off limits for obvious business reasons. It's the difference between legalization and decriminalization. Abandonware has no legal protections one way or another.

Now, a lot of "abandonware" is what's more appropriately termed "oldwarez," where the game is old and not being sold anymore, or in some cases IS still being sold, but still has someone to legally speak for it despite its age. THAT is illegal, because it's still under protection. I personally do not deal in oldwarez and do not support them or anyone connected to them. This is where the term "abandonware" is either intentionally or unintentionally fuzzed, and where businesses like to put their focus to blanket real abandonware with it.

There actually HAS been legal action against sites with oldwarez claiming to be abandonware sites, for instance, Home of the Underdogs, which instituted policy changes to ensure the reputable sites stay within the law. So it's not that the sites haven't been bugged as much as they have and have fixed themselves. They're not doing anything wrong at this point and businesses, if they wanted to delve into the legal gray area, have infinitely better resources and could easily clean house if there were a solid case for it. Most abandonware sites struggle to scrape by on page ads and donations, and like HOTU, sometimes just can't stay afloat WITHOUT the threat of legal action piling on. On the other hand, delving into that legal gray area would set a precedent, which no one seems to have done yet. If there were a solid case against abandonware, places like Abandonia would be squashed like bugs, and businesses have shown this on oldwarez sites previously.


For an incredibly generalist and slightly business-skewed view, Wikipedia has an article, in which you can see bits and pieces of the definition Abandonia uses and which I hold to. HOTU had a similar policy to Abandonia after its legal action to the point Abandonia considered them equivocal, but with the dissolution and multiple rebirths, I can't be sure on the policies any of them use anymore. The stance could technically be considered a combination of orphaned works and a lack of legislation or legal precedent concerning the matter, with a healthy dose of being willing to work with anyone who comes to challenge it so as to stay within the law.

Really, finding any sources on abandonware's legality outside of abandonware sites without a business bias is pretty much impossible because there aren't any laws regulating it as of yet. So you have abandonware sites' words against businesses' in that regard. There isn't a legal concept of abandonware as of yet, which is why there's a question of whether or not it's actually legal. That's why I stick to Abandonia, because they have a policy closest in line with current law, i.e. orphaned works.





TL;DR: Abandonware by the definition I use and am most familiar with is legal because it relies on orphaned works law as the closest legal precedent, but you have a lot of definitions bumping around and detractors like to latch onto the worst of them. This may all change with future legislation or legal precedent, but companies don't seem to be in a hurry to try to squash abandonware sites like bugs because of the legal gray area.