Having discussed the overall idea of abandonware, and given a brief look to the potential problems for gamers, today’s post will discuss some of the troubles that hosting websites encounter with making abandonware available for public download.

Copyright infringement lawsuits come about when the owner of a copyrighted work has a problem with the way people are interacting with their property. Litigation generally requires at least two stages of awareness: the user has to be aware that the work is protected under the copyright law, and the owner has to be aware of (and object to) the use being made of the work.

The first major problem with running an abandonware hosting site, like Abandonia or The Underdogs is deciding whether the games they want to host are owned by companies that are still around to take offense. Some game publishers and developers from the 1990s went out of business, more merged or had their games or copyrights bought by other companies, and a few more are still making games today.

Even if the company went out of business, the hosting website could still be in trouble if the original author of the game objects. Copyrights don’t expire until 70 years after the death of the author, and institutional copyrights exist for 120 years after the date of creation. Just because the named entity on the copyright registration or splash screen isn’t around anymore is no reason to assume that the copyright isn’t still being policed and protected. However, users have to be put on notice that a copyright owner intends to protect their rights, so posting a game from a defunct publisher is realistically not going to get the website in too much trouble.

Following game studio merges and evolutions can be highly convoluted, which is why copyright owners tend to update the registration with the Copyright Office as part of the due diligence process of merging. Without such documentation, however, proving who owns what can be near impossible, resulting in no clear entity who can issue license for the game, and no “owner” to file suit against infringers.

A good example of this is the path that the MECC library of games has taken. First sold to Brøderbund Software (famous for Carmen Sandiego), then bought out by The Learning Company in 1998, the transferring documents were misplaced, leaving no clear owner, and the games in limbo, unable to be released into the public domain as freeware.

Some hosting sites are user-driven, meaning that the websites themselves are attempting to use the safe harbor provisions of the DMCA should trouble ensue. The recent Viacom v. Youtube case out of the 2nd Circuit dealt with this issue, and the level of awareness needed by the hosting website that their users were engaging in infringing activities.

Even with the knowledge that posting software that has not been explicitly cleared for public dissemination is an infringement of US copyright law, some websites provide a great deal of non-infringing information about the title, without actually providing a download link. Those website operators have either had very good legal counsel, or are naturally cautious about their overall operations.

In contrast to the stringent control of copyright law are the various defenses, mentioned previously, including fair use. Where the website provides a description of the game, screenshots, and links to the owner’s website or a online marketplace offering the software for sale, then that limited “use” of the copyrighted work is generally acceptable.

Where a service or device offers both infringing and non-infringing uses, as long as the service provider is not promoting the infringing uses, and the non-infringing uses are actually legitimate, then the service or device is probably legally acceptable. This test was first described in the Sony v. Universal case (a.k.a. the “Betamax” or “VCR” case), and then solidified in the A&M Records v. Napster case.

The remaining question, with abandonware as with other types of software, is whether the potential minimal return and value of the abandonware to the owner, if such owner still exists, is worth the restrictions on the use of that software by the public. But then, who decides the demand cycles of software? Something popular two years ago might be popular again in ten years, long after the programmers have gone on to other projects. Having a central copyright registry is only as useful as it is kept updated by the owners, and without verification of the information, or the staff to do such verification, such voluntary reporting seems less than optimal.

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