Most websites that offer formerly paid software for free do so with little to no illusion of legality. However you feel about torrents of paid software and media, it’s unarguable that they are illegal in most countries. Which is why torrent sites are often harassed by law enforcement.
There is one type of site that’s managed to avoid most scorn, however – abandonware. Some of the sites we’ve covered in the past, like Abandonia, have been around for over a decade. Does this mean abandonware is legal?
What Is Abandonware?
The term “abandonware” refers to software for which support has been discontinued or copyright has not been actively enforced. Software usually becomes abandonware because the company that owns the rights to it has gone out of business or has been sold to a new owner who’s not interested in continuing development.
With that said, some software becomes abandonware through an official announcement or by cooperation by its developers. Source code for the video game Descent, for example, was released by the game’s developers in 1997. Numerous other games have had similar treatment.
Is Abandonware Legal?
The simple answer is a definitive no. Copyrighted works that have been abandoned by their creators do not automatically become public property. On the contrary, they remain protected for the duration of the copyright, which varies from country to country. Downloading a copyrighted work is illegal, too, so it’s not just the sites that could get in trouble.
So why is Abandonia still running? Like most laws, punishment only occurs if you get caught – and the other side is willing and able to make the charge stick. Most of the software listed on abandonware sites no longer have an owner, so no one can sue. In other cases the owner still exists but has decided not to enforce copyright. System Shock is currently owned by Electronic Arts, yet the original System Shock game can be found on many abandonware sites.
Despite the illegality of abandonware, I could find no court cases relating to it. Companies thinking of legal action often choose to send a cease-and-desist letter before filing a lawsuit. Abandonware sites almost always respond by closing shop or taking down the offending software. Those that stay live despite threats of a lawsuit seem to do so by using international borders to their advantage. Home of the Underdogs was founded in Thailand, while Abandonia is located in Sweden.
Another reason for the lack of legal precedent may be a desire for goodwill. Electronics Arts has the legal resources to remove every free copy of System Shock on the market, but what would be the point? Legal action could turn into a public relations disaster.
Because of these obstacles, abandonware is fairly safe. Those who distribute it are unlikely to be fined and those who download it probably won’t sued. Yet this safety could vanish at any time.
Of course, if a developer releases software for free, the story is different. Though rare, a number of games have been released under General Public License, Creative Commons and other publicly available licenses. Once a game is released in this way it can’t be reclaimed – but the developer might still hold copyright on new or altered versions of the game.
Where Does Good Old Games Fit In?
Interest in old titles has recently been re-kindled by digital stores like Good Old Games, a business founded to sell titles that had gone out of print. The site (and competitors like Steam) managed to turn potential abandonware into a business. Rather than offering games for free, specialty retailers have worked out deals to legally offer out-of-print titles for download. Good Old Games has since been re-branded GOG because the site now offers new games alongside the old, but the core of its business remains the same.
In a way, the success of GOG has threatened the future of abandonware. Many titles that might have been abandoned are now sold for profit by whoever holds the rights to them (which, as often as not, isn’t the original developer). The potential for profit from old games gives owners a reason to fight for their property.
GOG’s success also highlights the the illegality of abandonware. The only difference between what’s on GOG and what’s on Abandonia is the threat of a lawsuit. Some justifications, like age or incompatibility with modern systems, no longer seem as strong.
Abandonware is illegal. Downloading commercial software for free is a copyright violation and you could, in theory, be sued. You almost certainly won’t be, but that doesn’t change the answer to the question of abandonware’s legality.