The Joystick

Fans who collect and disseminate old game titles online say they provide a service that publishers won't offer. But given a copyright-happy legal climate, abandonware could draw the wrong kind of attention.

That computer game you played as a teen is out of production - you can't get it from the publisher, no matter how much you hoped to see those scratchy graphics and hear those grating blips of music for nostalgia's sake.
Hang on, you have options: a growing handful of Web sites offer long lost games for download. Simply click and enjoy.

Just tuck this thought in at the back of your mind as you're blasting space invaders: the game you just added to your hard drive might be an illegal copy. "Illegal" as in you could be in trouble for your trouble.

"It would be different if the publishers put their games into the public domain," said Margo Langford, a lawyer specializing in copyright issues. But many publishers haven't done so. As a result, "this is just theft."

When it comes to end-of-life programs, the law draws a clear line between what's legal and what's not. But among the zip, blast culture of computer games, it's not so easy to decide what's right and what's wrong.

The game you want is known now as "abandonware" - programs no longer available for purchase.

People with your own poetic sense of electronic history put collections together online, compiling titles from like-minded Web surfers.

Punch "abandonware" into almost any search engine and it will take you to some of the biggest old school archives on the Internet, rich with titles reaching as far back in time as 1978.

Most ended-game Web sites deal in entertainment, but "abandonware" applies to all old programs, be they spreadsheets or word processors.

When you download abandonware, so far as the manufacturers are concerned, you're infringing on their copyrights, taking their property without permission and, in some cases, playing with fire.

"We take piracy seriously," said Diana Piquette, Microsoft Corp.'s anti piracy manager. "We need to. It's what fuels future development."

Abandonware programs may be old, but they're not old enough to beat copyright law. In this case we have an international standard. The Berne Convention and says works remain copyright protected for 50 years - well past the age of most computer programs.

Publishers call abandonware postings software piracy. But the posters call it justice. They say they provide a service, bringing back lost but much loved games and applications.

"I don't think we ruin anything for the software developers," said "Jimmy" from Magic Abandonware. "Instead I think we're doing a great job with helping them out by keeping their abandoned software alive."

Abandonware advocates argue that publishers abandoned their old wares. Makers offer no technical support, no back up copies if your original goes ka-boom and no way to retrieve much loved but long gone games.

"If nobody else is going to do it, we're going to pick up the slack," said Stephen Granade, describing the abandonware philosophy. Granade is a "guide" with About Interactive Fiction.

But according to Langford, the argument doesn't hold water with publishers who want to see an end to abandonware shenanigans. The law is the law and, if a publisher is so inclined, it has every right to seek and destroy abandonware providers.

Granade said publishers are rarely interested in reissuing old games or supporting aged titles, with good reason.

"Why should companies spend the money to keep these games published? There's not a lot of profit there."

Nevertheless, there remains a small profit to be made. If, for example, a publisher was unwilling to support a product, it could partner with abandonware fans. The two might reap what Granade calls "Internet micro payments" -- $0.10-per-download for example.

The abandonware provider does all of the work in this partnership, creating the collection and maintaining contact with other old school game fans. All the site operator needs is the publisher's blessing.

"I know a few who have tried," Granade said. But amateurs often receive a sound "no" from copyright holders. Publishers are disinclined to risk their copyrights with fans.

So, you figure you're fine with the original. It still works, you say. It's still good. Sure - but for how much longer?

Granade said games suffer "bit rot" after a number of years - computer storage devices weren't designed to withstand the test of time. Given a decade, your copy of Commando for Commodore 64 best serves as a coaster.

This - and a rabid devotion to certain titles - drives abandonware fans to build more and more Web sites. And these creators seem to be oblivious to potential criminal and civil prosecution.

But according to Granade, publishers are more interested in people who offer "warez" - new and recent programs offered at a supreme discount or for free - than the abandonware crowd. "That's what the abandonware operators are counting on," he said.

Piquette from Microsoft said, "There are levels of people we're interested in pursuing. We're looking for people who are outwardly counterfeiting... or distributing product they know is pirated."

Groups like the Interactive Digital Software Association (IDSA) and the Software & Information Industry Association (SIIA) have been known to crack down on counterfeiters. But when it comes to abandonware, their policing efforts seem half hearted.

"It's a matter of economics," said Mike Wagstaff, whose ghosted gaming Web site appears but a shell these days. "To pursue individual, or even small-sized, cases is probably more trouble than it's worth. Additionally, I doubt that companies or individuals will resort to legal action unless it is extremely serious."

Might game companies fear a backlash if they admonish their fans? After all, abandonware site operators are nothing if not huge computer game aficionados.

"I suspect that to be a minor factor," Wagstaff said. "I suspect that the truth is that it simply isn't worth their valuable time and money, protecting their copyright over software, which is for the most part redundant and no longer being sold."

You can't say abandonware providers lack enthusiasm, Granade said. "They do it because they love the games and they're afraid they're going to go away."

Asked if he knew of an organized movement to make abandonware legal, Jimmy said, "We all in the abandonware scene are fighting for abandonware to become legal sometime in the future."

So far Jimmy's been lucky with the likes of the SIIA and the IDSA. "The authorities haven't (should I say 'yet') tried to shut down my site and I hope they won't, because I don't think I'm doing anything wrong."

Maybe the games publishers aren't worried about a site like Jimmy's plot, Magic Abandonware. On the other hand, maybe they're gathering evidence before they strike. But considering the rules, Langford figures abandonware site operators should be prepared for either outcome.

"I'd be pulling those sites down pretty darned fast," she said.