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Abandonware In A Nutshell: Why Nobody Wins

Introduction

True story: "John" is a long-time fan of shoot-'em-up games, having played them since the early 1980s. One night, John is playing the latest Direct3D shooter and his roommate makes a casual comparison to "If It Moves, Shoot It!", an old game John bought in 1989. Sparking John's interest in that favorite old game from his youth, he decides to give it a try again -- only to find that one of the disks has gone bad. Since John has also lost the manual, he calls Broderbund to order an entirely new copy. What he's met with, however, is a customer service representative that has never even heard of of the game, and can't find any reference to it in their computer system or on the company's website. Getting frustrated, John calls Broderbund's technical support department for replacement disks, only to be told the same story in spite of the diskette-replacement warranty that came in the package. Having no other recourse, John throws the rest of the disks out in anger, his money ultimately wasted.

Another true story: "Gary", needing quick cash years ago, sold all of his PC software collection at a garage sale. 12 years later, Gary is married with a young son. His son expresses an interest in what computer games were like when his Dad played them, so he visits all the game company's websites to attempt purchasing them again, only to run into the same roadblocks that John encountered. In a last-ditch effort to find the games, he turns to the web and searches for them by name, and finds freely-downloadable copies on "Abandonware" websites. After downloading the games he used to own, he and his son subsequently spend hours playing the games and learning about the early software industry. To avoid setting a bad example, Gary hides the fact that he obtained them illegally.

So who did the right thing? Was it John, who ended up frustrated that his investment was lost, or was it Gary, who was able to share a part of his past with his son but only by breaking the law? The answer to this question is in dispute, in a war fought between two camps: The Interactive Digital Software Association (IDSA), and the webmasters of over one hundred so-called "Abandonware" websites.

The IDSA is a non-profit organization that represents over 50 entertainment software companies. Abandonware websites, named for most consumers' perception that software companies have "abandoned" their oldest software titles, offer free downloads of classic gaming software. (To get the term "classic", a game has to be at least 5 years old, although the average age of a classic title is about 8 years old.)

Websites are hardly the only online hangout to obtain older software for free; a handful of Usenet newsgroups and IRC channels also exist for this purpose. But it is the websites that are attracting the most attention, since they are the most visible and make it very easy to find an old game simply by plugging the name of it into any search engine. Or, casually browse one of the hundreds of Abandonware websites on the 'net, and you'll eventually find what you're looking for (amongst thousands of other titles, some as old as the PC industry itself). They make it possible to relive the classics of your youth again.

There's only one problem: Abandonware is illegal. And the IDSA is doing their best to shut them down.

But is it really illegal? Ask any software professional if software piracy is illegal, and they'll emphatically answer yes. But ask that same professional if copying old software -- say, over 15 years old -- is illegal, and you'll get puzzled faces and mixed answers in return. Most people simply don't know. Once software becomes "useless" and "obsolete", is it still illegal to copy it? Is there any truth to the various rumors floating around, like the "over 2 years old" NIICA rule and "abandoned property" rule?

This article will attempt to answer these questions, by providing both sides of the argument, some legal background, and some conclusions. I'll also try to offer some suggestions for both sides that helps achieve their goals without getting in trouble (consumers) or angering their once-loyal customer base (IDSA and software companies).

Continued: The History of the War

Table of Contents: Abandonware In A Nutshell: Why Nobody Wins