The blog science fiction observer misleading posts that new rules allowing "public access to commercially unavailable software" is in essence making abandonware perfectly legal. In truth however it is not so simple. A few souls on the Digg forums bothered to actually read the rules and determined that the sensational headline was in fact not really accurate. Specifically;

"Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace."

Well it seems nearly all abandonware does not fit this criteria. The rules seem to explicitly require original hardware or media excluding emulators. The DMCA exception seems to be focused of libraries and archives and not websites like HoT and Adbandonia. From my understanding of the issue the rule change was granted by the USPO specifically with Archive.org in mind. The conclusion that abandonware is now legal is either horribly irresponsible or a cynical attempt to sensationalize an otherwise banal story.

Thanks to tarmo888 for pointing out the story on the forums in the first place.

What about games that used hadware dongles, like Dyna Blaster (I think) ?

"A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace."

Here's the thing. WHO decides if the item is no longer reasonably available in the commercial marketplace? Many of the games which may have been covered by that thing at one point required certain hardware that is no longer manufactured, and is near impossible to obtain new... or used.

I agree that this ruling is not making abandonware legal, I just want to know who decides what is legal and what is not based on those requirements.

Courts, as the last resort. I guess if a company wanted someone to stop using/spreading such abandonware they would start by contacting that person. If (s)he refused to oblige, it would go to court where the question would be decided.

The most common misunderstanding seems to be that this has anything to do with copyrights. It has not. Old software is still protected by copyright and thus illegal to distribute without the consent of the copyright holder.

The clause however makes it legal to circumvent/reverse engineer/crack protection on old software in order to preserve it in digital archives. Archive.org and the Software Preservation Society have lobbied for this, allowing especially SPS to continue their (very important) work within the confines of (US) law.

Also, the clause is already several years old. All the current news reporting must be because it has been extended.

Yeah, and as I pointed out in the other thread, it clearly says that it's by libraries and archives... not for distribution by abandonware sites.

That is 100% correct. I couldn't have put it better myself. The exceptions were granted specifically to archives and museums, with archive.org used as a model. Abandonware websites distributing the software are still quite illegal.