Is Abandonware Fair Use?

Posted by Joshua Auriemma on December 6, 2008

Since running across this article before Thanksgiving and reinstalling Planescape: Torment as a result, I have been thinking about the state of fair use laws and how they relate to abandonware.  

In poking around the internet, I came across some articles from 2006 claiming that as the result of a congressional vote, software no longer being sold can be cracked.  In actuality, these articles were misstating the amendment to the Copyright Act which allows for the creation of one copy of a work for personal archival purposes. 

Recently, as I sat through Copyrights and we explored the framework for analyzing fair use defenses, I couldn’t help but think about applying fair use to the subject of abandonware.  From The Copyright Act (17 U.S.C. 107), there are some factors that must be considered in order to determine whether abandonware should be covered under the fair use exception:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

I probably wouldn’t argue that developers have actually abandoned their intellectual property by ceasing to publish it.  I also don’t think that third parties should have the right to commercially distribute abandonware.  However, if gamers want to play a game, and are simply unable to purchase it due to unavailability, isn’t it better for everyone if they are able to obtain a copy of the game (as opposed to not play it at all).  Surely a choice between those two extremes benefits the owner of the intellectual property, as new fans may be created that may otherwise not exist.

(2) the nature of the copyrighted work;

Well, we’re talking about video games here; arguably, they’re not exactly akin to the expression of Robert Frost (I’m a relative, so argue that at your peril).  Still, the video game was commercial in nature, and that’s really what this prong is getting at.  The fact remains that while the game was one commercial, it’s arguably no longer commercial when the publisher stops selling copies of the game.  

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

This is the hardest hitting prong for abandonware.  Almost by definition, the entire copyrighted work has been copied.  One counter-argument may be that were the work not copied in its entirety, it would not be functional at all, and so it really is either an “all or none” kind of thing (as opposed to copying a clip from a movie or an except from a book). 

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Two words.  ”What market?”  When a game has researched the colloquial status of abandonware, there really is no longer a market, per se, for that particular game.  There may be some minor resale value, but the fact is that the developers and publishers likely will not receive much, or any, profits from a video game past a certain point.  If there is no market to harm, why not allow it into the public domain?

This is a cursory analysis, as §107 requires these prongs, but invites other inquiries.  

I am not advocating that developers lose their IP rights when a game becomes difficult or impossible to purchase.  I simply think that if after some due diligence, if I can’t find anywhere to buy Grim Fandango, I should be allowed to download it.  I still think the authors should have the exclusive right to control derivative works, however.  And perhaps the most prudent course of action for developers would be to ensure that their software is available for digital download after it is no longer being produced as a hard copy.

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