Now that we’ve established the general classes of abandonware, let’s take a moment to consider things from the gamer’s perspective.
Many of the games hosted on abandonware sites are from the 1990s, when games had to rely more on the storyline and style of gameplay than the impressive graphics or well-known series of characters. Innovative and amazing games are still being produced, but now that the industry is a little more established, the same difficulties that plague the movie industry can be common to the larger development studios.
LucasArts in particular created some astoundingly creative concepts, before all but abandoning everything that did not have “Star” or “Wars” in the title. Recently, older games have been released for under $10 through Steam, but production of new titles and spin-offs has been relegated to third party developers. Sierra Entertainment, during the Al Lowe and Roberta Williams era, created fun and interesting RPG adventures, including Freddy Pharkas, Frontier Pharmacist, where creating remedies for customers is an integral part of the game, and where unlocking the door to your pharmacy nets you half the total score for the game.
Demand is still strong for many of these games, as gamers want to go back and play through games that require more thinking and note-taking than modern shooting or collecting games, no matter how attractively presented. This leads to the next issue for gamers, however, getting old games to run on new machines.
While gamers would like to be able to alter the programming of the old games they own, in order to have them operate on new machines, such cracking is technically illegal under the Digital Millennium Copyright Act, (17 U.S.C. §1201), which prohibits the circumvention of technological protections for copyrighted works. Unlike the rest of the Copyright Act, fair use is not a defense under the anti-circumvention section, with only the few very narrow exceptions within §1201 itself.
One of those exceptions is for the operation of computer programs which required a “dongle” which is no longer available, broken, or obsolete. Not many games actually required such a dongle, as the industry used codes printed on the manuals, and then DRM instead of producing and requiring an extra plastic attachment. Dongles tended to be used more with heavily individualized programs, running on the kind of high end machines that would make War Games seem like they needed more server rooms.
Even though another exception calls out video games as a class of works, the type of use that is allowed fits in with the previous exceptions for computer security and encryption research. There does not appear to be a direct exception that would allow individual gamers to break open their old disks, even if obsolete by today’s standards, and reprogram the games. Not only would this compete with the newer releases for companies that still exist, but it also violates the copyright act, the DMCA, and potentially the license of the original software.
In addition, US Copyright law protects creative works of expression for 70 years after the death of the author. While this is great for books and movies, in terms of software demand cycles, that may as well be a perpetual monopoly. Exceptions and legal defenses allow users to do some things without the permission of the copyright owner, but the code tends to be strongly on the side of the owner. Furthermore, legal defenses are not a shield against a lawsuit, but are defenses raised in court after being sued, making them an expensive gamble and not generally a solid basis upon which to base any type of business model.
Naysayers who would point to fan-made recreations which accepts donations may be unaware of licensing deals going on behind the scenes. The AGDInteractive Studio release of King’s Quest I and II, for example, were done with at least the tacit approval of Activision, the successor in interest to Sierra Entertainment (formerly Sierra On-Line). The danger to the individual gamer in asking a company for permission to do something with their product, of course, is that the company will say no, and then be aware of the gamer’s intention in a way they would not have, had the gamer done the thing and then put the result online for a few friends.
Tomorrow: Abandonware: A Problem for Hosting Websites?
