Abandonware In A Nutshell: Why Nobody Wins
Are there any loopholes?
The most common misconception among Abandonware webmasters is the concept that old software that's no longer being sold
or supported is "abandoned property" that can be freely acquired. The exact quote floating around is this:
Abandoned property is defined as "Property that has been discarded by the true owner, who has no intention of claiming title to it. Someone who finds abandoned property, acquires title to it, and such title is good against the whole world, including the original owner." -- West Business Law 4th edition.
The problems with this idea (other than being grammatically incorrect and most likely misquoted) are the passages "no intention of claiming title to it" (old owner) and "acquires title to it" (new owner). There have indeed been cases in history where the ownership of an invention has been misplaced or abandoned, and another person has acquired it (much to the chagrin of the original owner). But that's not the case with old software. The people distributing old games over the web have obviously not acquired the title to that software, nor do they publish proof that the ownership was ever discarded by the software company. Just because the company doesn't sell the software any more doesn't mean they've abandoned it. They've abandoned the consumer, yes, but not the rights to the software.
Another issue floating around is a passage in the National Information Infrastructure Copyright Act of 1995 that would allow copying the software legally: Software in which the copyright is older than two years and is no longer sold on the market would be deemed available free to the public, due to the seemingly "apparent uselessness of outdated technology" as stated in the NIICA. I have not been able to verify whether this is true or not; but even if it was, it would still allow the entertainment software industry to shut down websites in the name of intellectual property. The fact that the software is "obsolete" by that definition is irrelevant, because there are trademarked characters, music, and graphics in the software that are still the intellectual property of the company that created them. Even the name of the game is enforcable as IP.
Finally, there is the issue of licensing. When you purchase software, you aren't just paying for the disks, manual, and box; you're paying for a license to use the software for your personal use. If your original disks fail or are otherwise lost, you still own the license to use the software as long as you own some proof that you purchased it, whether it's part of the original packaging, registration card stub, or even a receipt or credit card statement. If you were to obtain the software through illicit means, such as an abandonware website, you yourself are not explicitly breaking the law, since you are merely obtaining the materials necessary to exersize your license. (To put this in context, refer to the two example situations at the beginning of this feature article: In the first case, "John" would still have the right to obtain the software, since he owned proof that he purchased the game -- before he threw the disks out, anyway. "Gary", however, lost his rights, because he sold his rights away at a garage sale.)
But abandonware website owners are trying to use software licenses as a crutch. We only distribute software to legitimate owners is one rationale that is floating around the various abandonware rings, with a disclaimer of "only download this if you own the software". But that justification is irrelevant: They're still breaking the law, since they're distributing the software without permission of the copyright holder. The software owner may not be explicitly breaking the law per se, but the websites are.
Bottom line? "Abandonware" is not a valid concept and will never be "legalized".
|Continued: Proposed Solutions for the IDSA|
|Table of Contents: Abandonware In A Nutshell: Why Nobody Wins|