Abandonware Now Legal? Uh, Not Quite.

Matt Barton's picture

I just got a newsletter from X-Gaming that contained a startling announcement: The US Copyright Office has legalized abandonware. Or has it? I went to the US Copyright Office website and recognized at once that this claim is a bit exaggerated. Actually, what's happened is that the anti-circumvention part of the DMCA has been relaxed a bit regarding certain types of works. That's the part of the DMCA that makes it illegal to reverse-engineer or to do anything that attempts to bypass the copy protection schemes introduced by software companies. Here's the part about "abandonware":

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.

Note that this doesn't nullify the copyright of these works in any way. All it does it legalize the process of "cracking" the code to make it possible to properly archive it. For instance, a game or program originally stored on a 5 1/4" diskette (and copy protected) can now be legally "cracked" and transferred to a modern format (CD-ROM, etc.)

However, note what this exemption doesn't do--it doesn't make it legal for a website to legally offer "ROMs" for public download. All it does it make it legal for them to be "archived." Unless a site has the explicit permission of the copyright holder to make these works available for download, it's still illegal. However, what this does mean is that you don't have to worry about breaking the law if you desire to transfer all of your own "abandonware" to more reliable modern media. The good news is that if you have to download a crack file to do it, you can now do so legally.

It's a small step, but an important one. I'm proud that the US Copyright Office has finally started making some concessions to folks trying to preserve our game and software heritage.