The Legal State of Abandonware
Abandonware, software that is unsupported and obsolete yet still covered by copyright, has been an ongoing legality topic with no definitive precedent case determining its verdict of being legal or not. Although most argue that abandonware is software still technically covered by an unexpired copyright by the software company, there is another clause in the issue that many don’t consider when classifying a piece of software as legal to distribute or not, which centers around enforcement.
The issue of abandonware is as old as the first time software has gone unsupported/undistributed for personal computers. Some argue in favor of the term as a label for software that has gone unsupported by its manufacturer after a given amount of time, whereas others classify it as a loose term for software that, although unsupported and unsold/undistributed, still falls within the bounds of copyright law.
The latter argument is true: abandonware is not public domain. Despite this, however, it is both unsupported and generally not available for purchase directly from the original manufacturer (eBay does not count).
With this in mind, there is another argument in favor of the distribution of abandonware that comes directly to (my) mind: if the law if not actively enforced, can it be broken?
My rational is this: there are currently hundreds of pointless laws on the books in various states that were enacted during a period when they were useful (and enforced), but now are simply ignored due to either lack of knowledge (ignorance of the law… blah blah blah), or in the more sensible case, are not enforced due to a genuine lack of a need for them.
Other Laws “Still In The Books”
Just to name one of such laws (most people have heard of some of these), in my state it is illegal to spit in the cracks of the sidewalk, although spitting on the general area of the sidewalk is permitted. I have honestly never been tasered for a loogie that happened to land in the crack of a sidewalk, on which stood an officer of the law without better things to enforce (such as robbery, drugs, and violence to name a few).
In fact, nobody ever has. Why? Because the law was enacted before tasers were even dreamed of: during the colonial period. That’s right – a law currently on the books was enacted to prevent tobacco chewers from turning sidewalk cracks into hazards. And if I go today and spit to my heart’s content into a crack in the sidewalk in front of a police officer, chances are very slim that I’ll be taken down for it.
I’m such a criminal! Lock me up next to the rapists and murderers for spitting in sidewalk cracks!
A Worthless Product
Unlike my sidewalk-loogie example, copyright law is still VERY enforced in today’s society, and is hardly considered to be going away any time soon. But here’s the thing: Microsoft is about to release Microsoft Office 2010, and so I decide to put up Microsoft Office 1.5 for download (1.5 was for Mac System 7, circa 1991).
Will Microsoft contact me for making their copyrighted, outdated, obsolete software available for download online? I doubt a SWAT team is about to crash through my windows any time soon, but I would assume the issue would be ignored whilst low-key, but I would receive a takedown letter if, say, the download received 2,000 Diggs.
It’s not that Microsoft doesn’t want their outdated software redistributed, but they would complain so as to keep people from getting used to pirating Microsoft products to prevent newer Microsoft Office copies from being passed around like LSD at Woodstock. But even at that, active enforcement of the distribution of this software would be rare.
Now, Apple has taken an interesting stance on abandonware: if they no longer sell it or support it, it’s up for download. This is known to be true of their System <= 8 software, which is freely available via their website for download. This seems the sensible thing to do, but due to the very fact that it makes sense, others won't follow suit.
Another example would be the movie 1984 being hosted on Google Video: at the time of this writing, the full movie is available for viewing on Google Video. No takedown notice. Why? Because the movie is so old (and not considered a timeless classic), that the creators have probably moved on with their lives, and don't wish to prevent every single leak of their movie online.
The same was true about the movie The Pirates of Silicon Valley: this movie, like 1984, was also hosted on Google Video for a time, until a Digg article linked to it and accumulated >1,000 diggs. Takedown initiated. TNT is by no means a lost company, but either they or somebody kind enough to report the incident caught wind of the infringement and the movie is no longer available (on Google Video).
So it really depends on the popularity of the software in question, and who the manufacturer is. But it is still illegal to redistribute, even if it no longer runs on any modern machine (e.g. the MULTICS operating system).
The Analogy
If I told you (from a position of authority) that if you jumped up and down I’d hit you, you would be hesitant to jump. But, having seen hundreds in the crowd around you jump up and down constantly without being hit, you decide to jump up and down.
I can still hit you, can’t I? But I probably won’t, because I either don’t care enough to, or because there are too many people doing it.
Now, if a person starts flaunting his ability to jump, and starts doing it right in front of me and everyone else, guess what? WHACK! He just got hit.
The same concept applies to abandonware: it really depends on how many are doing it, what the software is, who the developer is, and how much the public (and therefore the developer/company) is aware that the infringement is happening.
That said, I’d be willing to place the Microsoft Office 1.5 binary up for download and await a takedown notice, just as an experiment. I won’t link to it (or my website) from this article, of course, but it would be interesting how the situation is handled by Microsoft.
