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Abandonware In A Nutshell: Why Nobody Wins

The IDSA's Position

You may have heard of the IDSA from their involvment in the annual Electronic Entertainment Expo. The IDSA is a non-profit organization that was founded to support and represent the entertainment software industry. Representation, of course, includes legal representation, which in turn includes performing legal services that individual game companies may not have the time or resources to do so. Various duties include legal advice for game companies, representation in court, and (of course) protecting the legal rights of a company or companies.

One would think that such services include bringing copyright infringment to litigation, because everybody knows copying software is illegal. (You know the drill: A $50,000 fine and up to 5 years in jail.) But you may be surprised to learn that the recent shutdown activity has nothing to do with copyright infringement. The issue of copyright is never in question; they don't stop you from copying for the sake of preventing piracy. (Profit is never an issue since the companies are definitely not making money from old games any more.) It's all about intellectual property -- the legal idea that anything a company or individual invents is owned by them, and that they have exclusive rights to control its use and availability. Software companies are just as worried about losing control of their creations as they are about losing profits.

Here's the key: You can lose your legal rights if you don't enforce them. So the IDSA continues to shut down sites because rampant copying virtually eliminates a company's ability to control the distribution of their intellectual property.

The IDSA's position can be further illustrated by one of their cease and desist letters that they send to websites they want to shut down. The following is an actual letter (with some details omitted to protect the parties involved) sent to an Abandonware site, forcing it to go permanently offline:

Operator of website http://(url omitted)/abandonware/:

I am writing to you on behalf of the members of the Interactive Digital Software Association ("IDSA"), a trade association whose members include the leading publishers of interactive entertainment software. Our 45 members publish video and computer games for video game consoles, personal computers and the Internet. A list of our member companies is attached as exhibit 1.

We understand that you are distributing unauthorized copies of our members' copyrighted entertainment software titles - which you characterize as "abandonware" - without their permission. Your statements in the disclaimer posted in your Website, that software "piracy" is only actionable with respect to programs currently for sale in the retail market is false. The fact that an entertainment software title is not currently available in retail channels does not mean that it is "abandoned", nor does it authorize others to copy and distribute it without permission. The owner of the trademark and copyright in that product maintain the exclusive right to authorize its reproduction.

As such, your unauthorized reproduction and distribution of our members' entertainment software titles is a violation of their exclusive rights under Sections 106 (1) and (3) of the Copyright Act, as well as a violation of federal and state trademark law and the law governing unfair trade practices.

This letter constitutes notice to you that your actions are illegal and may subject you to criminal prosecution and civil liability. We will be monitoring your Website to see if you are in compliance with the law and reserve the right to take all steps necessary to protect our member's rights, title and interest in their property. If you have any questions concerning this matter, please feel free to contact me at IDSA, 845 Third Ave., N.Y., N.Y. 10022 or by fax at (212) 223-8970.

Continued: The Consumer's Position

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