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The Abandonware Dilemma

When is the beagle legal?
Fri May 30 2003, 11:25
AFTER THE ARTICLE we ran on classic adventure gaming earlier this week one reader wrote in suggesting that we or you our readers check into abandonware websites if you've got a hankering to do some classic gaming. Since the legal status of abandonware sites isn't always clear, and because there are a lot of great classic games out there, it seemed prudent to address the issue.

Abandonware is a term used to refer to software that's supposedly been "abandoned" by the manufacturer and is no longer being sold or produced on the market. The length of time before a website will declare a piece of software abandoned varies from as short as four years in one case to as long as fifteen in another. Abandonware sites are typically easy to find and even the oldest / most obscure games can often be located within minutes on a simple http server. Compared to the tremendous gap between the amount of advertised "warez" software online and the ability to find or download it, there's a notable difference.

The crucial question swirling around abandonware is whether or not it's legal to possess or download. The justification for such activity usually hinges on the fact that the product is no longer in the market, cannot be purchased (or in some cases may not even run on modern hardware), and is generating no royalty for the company, which may even have gone completely out of business in the meantime. Unlike the pirating of modern games, in which every stolen copy is a copy not sold, there is no financial loss to the company in question, according to this point of view, and hence, no violation of the law.

Companies inclined to fight the abandonware battle, unsurprisingly, see the situation differently and in much more black and white terms. If Company X owns the rights to "Dungeon Crawl" published in 1981, it doesn't matter if Company X has no intention of ever making a sequel or re-releasing the game - downloading Dungeon Crawl and playing it without purchasing the product is a copyright violation and hence illegal.

Unfortunately (or fortunately, depending on your point of view) the issue isn't quite this simple. Is it illegal, for instance, to download a copy of a game you once legitimately purchased but now, through no fault of your own, can no longer install? Anyone who gamed in the pre-CD ROM period will remember the disk failure rates that all gamers suffered and the hassle of procuring replacements even then. If a game shipped on ten 3.5" floppies it wasn't at all uncommon to find a bad disk every third or fourth game, and now, over ten years later, there are precious few disk sets that are still going to reliably hold their data. Obviously most companies aren't going to be able to provide replacements, even if offered full original market value for the game. Can the legitimate owner of a game legally download a functional copy?

Confusing the situation more, there are companies who have legitimately released their games into the market as full and complete free downloads or who offer full classic versions of their games via online play (one can, for example, play the original Sim City online using Java). Grand Theft Auto can be legitimately downloaded for those interested in revisiting the roots of Vice City.

For those of you more interested in the console side of gaming, there's a similar debate on the legality of ROMs (typically used to refer to console games that've been transferred off their original cartridges). While it's perfectly legal to build a program that emulates, say, an NES (Nintendo Entertainment System), is it legal to download that emulator for the purpose of playing the games for that system on a computer via emulation? Does the situation change if you own the original cartridge? Nintendo could argue (theoretically) that it is not, as the point was to purchase a Nintendo Entertainment System to play these games, but there are no more NES's being manufactured today and its getting tougher and tougher to find fully functional units. That's not to say there aren't any available, but the pool isn't getting any larger as the years go by.

So, is downloading Abandonware (if you don't already own it, or even if you do) illegal? It very well may be, but it's noticeable that in an age of increasingly harsh pirating crackdowns we aren't seeing very many companies running after people offering downloads of their ten year old products. From a certain point of view, in fact, abandonware is helpful to companies, as it puts some of their greatest games in the hands of people who've never played them before. The best games ever made have an ability to transcend the limitations of their graphics and complexity years after they are built. The original Civilization, for all that it's been surpassed by its successors, can still suck you in all night if you're willing to look past its 16 colors and basic MIDI sound.

Abandonware might be a fairly low-profile issue but its inevitably going to become higher-profile as the number of great games in the market that people want to play years or even a decade after their release continue to grow. Hopefully we'll see more companies making their great classics available to the public for free once they've passed out of the market and stopped generating money. In the meantime, we can't stand up and tell you its alright to download old software (unless the manufacturer has said so) but if you're debating between downloading Starflight or downloading The Matrix Reloaded and wondering which one is more likely to get you in trouble, we'd recommend going with Starflight and coughing up $8 to see TMR. On the whole, you're probably safer. µ


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