Curmudgeon Gamer
Curmudgeoning all games equally.
24 November 2006
Abandonware *still* not legal, people
"Abandonware" is not legal. Please stop it. Some people may circumvent copy prevention schemes on software they own in order to access that software. That is all. It mentions libraries and archives, not end users, which seems a rather important point. If a library owns a copy of Defender of the Crown by Cinemaware and can't get the fast loader (V-Max!) to work with their Commodore 1541 drive, it now appears that on Monday they could legally crack the program so it doesn't use the fast loader. An archive can't find its hardware dongle to access some old, obsolete program? That archive may now have a right to work around that hardware without running afoul of the anticircumvention part of the Digital Millenium Copyright Act. And any such activity which is now permitted is only permitted between 27 November 2006 and 27 October 2009, i.e. for a limited time.

That is all.

Again, that's what it appears to say -- I'd consult an attorney to make sure you are actually affected by this ruling. It isn't clear to me that this even applies to a normal software owner like me since I'm not a library or archive. I'm certainly not going to advise anyone that their situation has changed.

You still may not distribute copies of someone else's software, cracked or not. There is no such thing as "make sure the games really are abandonware". You shouldn't be winking and saying "rarely do any abandonware cases go to court". If you're not an attorney, you probably shouldn't be giving out that kind of advice.

So just fricking stop it.

Here is what you need to read, excerpted from the DMCA page on the Library of Congress website, my emphasis added:
Persons making noninfringing uses of the following six classes of works will not be subject to the prohibition against circumventing access controls (17 U.S.C. ยง 1201(a)(1)) during the next three years.


2. Computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access, when circumvention is accomplished for the purpose of preservation or archival reproduction of published digital works by a library or archive. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace.

3. Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. A dongle shall be considered obsolete if it is no longer manufactured or if a replacement or repair is no longer reasonably available in the commercial marketplace.


These exemptions will go into effect upon publication in the Federal Register on November 27, 2006 and will remain in effect through October 27, 2009.

Am I a lawyer? Heck no. So feel free to correct me in the comments, if you see something I missed. (This is the point at which Bob normally comes out and slaps me around. I like it.)


--Matt Matthews at 08:23
Comment [ 16 ]

Comments on this post:

It's probably worth mentioning this in the context that laws aren't some exhaustive set of rules that can be followed in some linear fashion to determine, in this case, guilt or innocence. That's probably a good thing.

What this change does, as you've pointed out, is free up libraries (for two years?), etc, and gives them a good base from which to hack for specific purposes.

Why should we expect abandonware advocacy to exist outside of libraries after this? Well, part of owning a copyright is, afaict, ianal, pursuing violations. If you let someone violate your copyright when you should reasonably know better, is it really something you find worth protecting? And if you don't, why should the law [which is only, ultimately, a set of opinions, right]?

This is part of why I believe Apple is so danged quick following up on OS X violations. It's not just the damage having a crack out there does, but they need to go through the [violent] motions to stabilize their claim to copyright.

So I wouldn't make any actions, obviously, based on what I'm writing here, but I believe the gist is that if you "steal" a game and the owner doesn't mind [aka "doesn't act"] now, the penalties for "stealing" it mayl be severely mitigated if the owner decides, at some random point down the line, to start enforcing that right.

There is abandonware and it does have legal ramifications. Does that make it legal? Not exactly, but, um, not exactly not, either.

By Blogger rufbo, at 24 November, 2006 12:05  

Just make sure you delete it within 24 hours :)

By Blogger Zachary, at 24 November, 2006 13:24  

I think the main problem is what is meant by the word "abandonware". For instance, Zero Wing is abandonware. Toaplan doesn't exist anymore, and no one bought them or their intellectual property. It is a game without a company.

Just because a game is "old" doesn't mean it's abandonware. LucasArts, Sierra, Nintendo, etc etc are still alive and kicking. I think about close to 95% of games I see on "abandonware" sites are not abandonware, and that's where the confusion is.

By Anonymous mgroves, at 24 November, 2006 14:16  

As long as Congress keeps arbitrarily extending copyright with the implicit wink and nod from the Supreme Court, we're going to have issues like this.

If a company wants to take someone to court for distributing Commodore 64 games, it's their wasted money. The problem exists that "FOR A LIMITED TIME" has been overlooked, and the copyright system is exactly what the Founding Fathers did NOT want to have... a "crown copyright" sort of society. We've gone and done it, and if someone decides to infringe on some copyright for a piece of software that is over 20 years old, I don't shed too much of a tear for the company "affected" by this "rampant piracy".

Fix the copyright laws, then I'll be concerned. Until then, I don't care.

By Anonymous Anonymous, at 24 November, 2006 16:59  

Fix the copyright laws, then I'll be concerned. Until then, I don't care.

Ah, Anon, you're the reason Matt feels he needs to post.

Again, if you're going to be civilly disobedient, at least be thoughtful about it. Apathetic disobedience does little work. If all you're doing is looking for an excuse to pirate, well, cry on someone else's shoulder. (overly positive smilie smilie, frown curse CENSORED)

By Blogger rufbo, at 24 November, 2006 17:28  

Please don't assume that the majority of "abandonware" is worth getting for free. Much of the downloadable material is only of historical interest because it is tripe. There are some gems but I imagine the gem quality is subjective. Most of abandonware just consumes bandwidth, fills the recipient with nostalgia for several minutes and the final fate of it depends on the downloader i.e. the hoarder of garbage or Mr cleanliness.

Abandonware is a great nostalgia revelling experience and if somebody gets a few minutes pleasure from it for free then well done them.

By Anonymous BobTheBuilder, at 25 November, 2006 16:38  


Just because I claimed the copyright system is broken doesn't mean I support or I actually participate in abandonware. You made a logical leap from what I said to what I do. I merely said that I didn't care if people did "infringe" on IP from long ago defunct companies and systems because the copyright system allows for this to occur which is completely opposite of the original intent of "FOR A LIMITED TIME,"

Get off your high-horse and go play pong... you'll feel better ;)

And since you can still buy a gameboy advance, the question of abandonware is moot. Tell me where I can buy a timex sinclair, or a commodore 64 and we'll discuss this more...

By Anonymous Anonymous, at 26 November, 2006 03:01  

Anon --

Rather than feed the troll, I'll simply ask you reread the post and see who is making the syllogistic mistake. My apologies for the ranging antecedents, but that's the life of the blogger comment.

That and I'll show you a place or two to buy a C=64, if you want one, or the Sinclair.

By Blogger rufbo, at 26 November, 2006 03:25  

OK, allow me to correct you. A tort can only exist if I cause someone else harm (in this case financial harm).

If nobody is SELLING it, then not PAYING for it is NOT a tort, and therefore totally legal.

30 games on a microcontroller is NOT a form/fit/function replacement for a C64, and enough products are available from China with illegal Nintendo and arcade games one would think you would know better than to point this out as an example of a legal alternative. Buying off eBay doesn't make Timex any money.

Read a law book - you don't have to be a lawyer to read.

By Anonymous MajorConfines, at 26 November, 2006 12:42  

MajorConfines: My father owns a huge library of digital photos. According to the response at public shows, people would pay for his photos if he sold them. As he chooses not to sell them AT THIS TIME, if I were to take copies of them and give them away for free, are you saying there would be no harm? Keep in mind, he clearly owns the copyright -- i.e. the right to control how copies are made and distributed -- to all of those photos.

By Blogger jvm, at 26 November, 2006 13:09  


While it doesn't take a lawyer to read a law book, it does take one to understand how the pieces of law all fit together.

You've mentioned torts which is an important area of law where people suffering from "injuries" like you've mentioned find their legal remedies.

However, Copyright Law isn't based on a torts framework. If anything it's based on the foundation established by notions of property law. In this case, you don't *need* an injury--by ownership, it is your *right* to exclude people from certain uses. Now Copyright is different than real property, but in essence, the notion that you're only doing something wrong if you *harm* someone is false.

Besides, torts is civil law (not criminal) and the way our Copyright Law is authored, copyright violation can also be a criminal act--in which case Uncle Sam will be coming after you, whether you harm someone in your copyright violation or not.

By Anonymous Anonymous, at 27 November, 2006 23:33  

Wait, dongle is the actual word and not just computer jargon? Gross.

By Anonymous Anonymous, at 28 November, 2006 09:42  

No. If, however, your father offered the pictures for sale, and then died in a fire, destroying the original and all known copies EXCEPT those purchased, AND THEN someone uploaded them to the internet for free download, then in my opinion they have not done anything immoral, nor comitted a crime or a tort, despite theoretically infringing on his copyright.

Neither your father (since he would be dead) nor you would have been in any way harmed by this. Neither of you have the capacity to sell the photographs any more.

I'm not here to advocate rampant piracy. I think the best policy here is to ask who you are, or could be, harming.

And yes, you ARE only doing something wrong if what you do does or could *HARM* someone. That is the BASIS of ALL law in this country. It is perfectly legal for me to think anything I want about you (and I probably do).

When the first person is jailed for a copyright offense that gained them nothing and did not even potentially cost anyone anything, it will be time for this country to call it quits.

By Anonymous majorconfines, at 30 November, 2006 15:46  

MajorConfines: I think the problem with your scenario is that the copyright passes on the heirs. So, technically, I *would* be harmed if someone began making copies that, legally, I have a right to control. Even if they give them away, the law is very clear that they do not have any standing to make copies. The ownership of a copy of something does not bestow some right to make copies of it. Copyright isn't a physical thing - it's a right, like all others.

By Blogger jvm, at 30 November, 2006 16:01  


When someone is jailed for voluntarily breaking a law, one that's been part of our laws since the beginning and tested time and again in the court, then it's time to give up on the country altogether?

I encourage you to read Ruffin's USENET post again. Sheesh.

By Blogger jvm, at 30 November, 2006 16:07  


Since you keep referring to that post, let's see... I have neither called for civil disobedience, nor have I called for people to ignore the laws that are out there. What I have called for is the fundamental change to how we view copyright. But with people like you and Matt who insist that there _might_ be something wrong, but I'm not going to _change_ the way _my_ government works (after all, it IS our government) How do we accomplish that change? It's all over the 'net... google is your friend.

And I'm not interested in rewriting the law as _I_ see fit. I am passionate about how those who wrote the ORIGINAL law saw copyright, and what we have now AIN"T it.

It's broken. "For a Limited time" is not life+90 years. It's not. I defy anyone to tell me a reason that it is. Why should someone's kids make money off the copyrights of their parents, simply because we arbitrarily extend copyrights to protect some stupid rat from Disney? It's pointless... and it's becoming a tired refrain from the copyright "holders" how they are losing money and dying a slow death at the hands of evil college students and people with internet access.

If we could dig up the writers of the Constitution, you'd be surprised what their views on copyright were. (Go to the library and read up on a few of their views... it's eye-opening, to be sure.)

The DMCA is unconstitutional. period. (And has not been tried in court for that very reason), and we are arguing simplistic notions of "theft" and "infringement" on a system that is broken and outmoded in the post-scarcity age. It's the lack of adaptation and reliance on a system that rewards "first blood" acquisition of copyrights and which favors the conglomerates' ability to rape the public domain and do nothing to return value back to it when they have made their billions off of it. They want to perpetually make their billions, and THAT is a crime.

Until you acknowledge that (and other things I mentioned), this argument is pointless. If you don't agree with them, that is your right, but the fundamental issue is not whether or not we're infringing, but how we are ruining the state of creative works for future generations because some fat slob in a $5000 suit thinks he needs perpetual revenue from something created from the public domain over 70 years ago.

And by the way, those links do not benefit C= since they are (and have been for quite some time) defunct. Just because you can buy a "commodore-like" system (in the joystick) doesn't mean we now have hundreds of IP challenges to attend to when someone has some copies of Preppie in .T64 format on a website.

Fix it, or it will only get worse. That is all I have to say...

By Anonymous Anonymous, at 01 December, 2006 01:09  

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