Software copyright question

[emeleel]

Ah, the joys of ethically parenting computer savvy teens.

A question came up today during a discussion on copyrights - is it legal to download "abandonware"?

[brian_igo]

Probably not.

Abandonware refers to computer software that is no longer sold or supported, or whose copyright ownership may be unclear for various reasons. While the term has been applied largely to older games, other classes of software are sometimes described as such.

Definitions of "abandoned" vary; generally, it refers to software no longer available for legal purchase, or of a certain age. Software companies may change their names, go bankrupt, enter into mergers, or cease to exist for a variety of reasons. When this happens, product rights are usually transferred to another company that may not sell or support the software acquired.

In most cases, software classed as abandonware is not in the public domain as it has never had its original copyright revoked.

(snip)

Abandoning software

Software can be abandoned when it can only be used with obsolete technologies such as an Amiga, Atari or pre-Macintosh Apple computers. Companies do sometimes voluntarily relinquish copyright on software, putting it into the public domain, or re-license it as free software or as freeware. id Software is an early proponent of this practice, releasing the source code for the game engines (but not the actual game content, such as levels or textures) of some older titles under a free software license. Other examples include Amstrad, which supports emulation and free distribution of CPC and ZX Spectrum hardware ROMs and software, and Revolution Software, which released their game Beneath a Steel Sky as freeware and gave the engine's source code to the authors of ScummVM to add support for the game. Transfer of public domain or freely licensed software is perfectly legal, distinguishing it from abandonware which still has full copyright restrictions.

There are groups that lobby companies to release their software as freeware. These efforts have met with mixed results. One example is the library of educational titles released by MECC. MECC was sold to Brøderbund, which was sold to The Learning Company. When TLC was contacted about releasing classic MECC titles as freeware, the documentation proving that TLC held the rights to these titles could not be located, and therefore the rights for these titles are "in limbo" and may never be legally released.^[7]


Enforcement of copyright

Old copyrights are sometimes left undefended. This can be due to intentional non-enforcement by owners due to software age or obsolescence, but sometimes results from a corporate copyright holder going out of business without explicitly transferring ownership, leaving no one aware of the right to defend the copyright.

Even if the copyright is not defended, copying of such software is still unlawful in most jurisdictions when a copyright is still in effect. Abandonware changes hands on the assumption that the resources required to enforce copyrights outweigh benefits a copyright holder might realize from selling software licenses. Additionally, abandonware proponents argue that distributing software for which no one remains to defend the copyright is acceptable. Companies that have gone out of business without transferring copyrights are an example; many hardware and software companies that developed older systems are long since out of business and precise documentation of the copyrights may not be readily available.


The case for preservation

Proponents of abandonware argue that it is more ethical to make copies of such software than new software that still sells.^{[citation needed]} Those ignorant of copyright law have incorrectly taken this to mean that abandonware is legal to distribute, although no software written since 1964 is old enough for copyright to have expired in the US.^[8] Even in cases where the original company no longer exists, the rights usually belong to someone else, though no one may be able to trace actual ownership, including the owners themselves.

Abandonware advocates also frequently cite historical preservation as a reason for trading abandoned software.^[1] Older computer media are fragile and prone to rapid deterioration, necessitating transfer of these materials to more modern, stable media and generation of many copies to ensure the software will not simply disappear. Users of still-functional older computer systems^[who?] argue for the need of abandonware^{[citation needed]} because re-release of software by copyright holders will most likely target modern systems or incompatible media instead, preventing legal purchase of compatible software.

Those who oppose these practices argue that distribution denies the copyright holder potential sales, in the form of re-released titles, official emulation, and so on. Likewise, if people can acquire an old version of a program for free, they may be less likely to purchase a newer version if the old version meets their needs.

US copyright law

Copyright law does not recognize the term or concept of "abandonware". There is a long held concept of abandonment in trademark law as a direct result of the infinite term of trademark protection. Currently, a copyright can be released into the public domain if the owner clearly does so in writing; however this formal process is not considered abandoning, but rather releasing. Those who do not own a copyright cannot merely claim the copyright abandoned and start using protected works without permission of the copyright holder, who could then seek legal remedy.

Hosting and distributing copyrighted software without permission is illegal. Copyright holders, sometimes through the Entertainment Software Association, send cease and desist letters, and some sites have shut down or removed infringing software as a result. However, most of the Association's efforts are devoted to new games, due to those titles possessing the greatest value.^[9]