The Scare of Abandonware

It’s nice to have law in a society to bring a sense of predictability. Clear and organized laws allow us to understand the consequences of our actions. Knowing the law lets us make choices based on the expected outcomes. However, there are a few areas of law where outcomes are not so obvious. Abandonware is an interesting case of 21st century law. Copyright law simply doesn’t outline what to do when a company publishes a game and then closes its doors. It’s scary for cautious lawyers to discuss because of that uncertainty. As always, this blog post is NOT legal advice– in fact, it’s mostly about why giving legal advice about abandonware is difficult.

How Games Get Abandoned

Abandonware isn’t entirely limited to software, but the differences in technology and industry norms and structure make it a far larger problem for software than any other media. It’s no surprise that book, radio, television, film, or music industries ever needed a statute on abandoned works.

When game studios close, they are often bought by other, larger studios- or at least their IP assets are. However, sometimes the IP of a studio doesn’t get purchased – it just gets abandoned. Copyrights in the US last at least 70 years. Although courts have ruled that not every work has a recognized owner at the time of creation, courts have not definitively addressed the issue of abandoned works. (It is possible to officially declare a work abandoned and part of the public domain, but this is not automatic for IP that is simply left behind by a defunct company.)

Who Would Have The Right To Sue?

There are a few fundamentals that have to be in place for a case to even get seriously looked at by a judge. There must be an allegation of a violation of a law, for one thing. Additionally, the plaintiff must have “standing.” This means the plaintiff was harmed by the breaking of the law. A case must also be “ripe” (the allegation cannot be speculated or predicted to occur sometime later), and the case cannot be “moot” (resolving the case must make an actual difference to the injured party).

In the case of abandonware, could these fundamentals be met? Sometimes revenue is still given to developers whose companies have closed shop, but it’s unclear how often this is the case.  In most cases, it seems that no one can claim to be damaged by the unauthorized distribution of the software, because no one can claim they lost money as a result. Further, any case would be moot because ceasing the distribution would not make any difference to a non-existent competitor.

Despite the unlikely odds of an abandonware suit even getting to trial, distributing abandonware still feels a little risky for two reasons. First, unlike trademarks, copyrights are not contingent on use in commerce, and unlike abandoned property there is no law describing how to treat abandoned works. Second, it’s an unexplored area of law, which means that there isn’t precedent either to argue in court or to consider when advising a client.

Who Gets the Loot of the IP License When a Company Dies in the Dungeons?

Despite the murkiness, some abandonware cases seem clearer than others. Some games from the 80s and 90s seem well and truly abandoned. However, if a copyright is assigned to a corporation and that corporation then goes defunct or is bought, it’s sometimes unclear who owns the copyright.  Other games may carry a sort of tangential active ownership that could complicate a case. For an example of both of these complications, let’s consider a game from 1991 that featured a licensed IP to a game developer and a publisher (who are now both defunct): Eye of the Beholder.

Dungeons and Dragons was owned by TSR, Inc until that company went out of business and sold most of its D&D intellectual property assets to Wizards of the Coast (a company owned by the toy company Hasbro, Inc). Eye of the Beholder was a game made by Westwood Associates (bought by Electronic Arts and defunct since 2003), though the title screen clearly identifies it as an Advanced Dungeons and Dragons game. The game was published by Strategic Simulations, Inc (bought by Mindscape and defunct since at least 2011), who worked with TSR on dozens of licensed D&D games.

With Westwood and SSI now out of the picture, can Wizards of the Coast claim ownership in the use of their D&D mark in 30 year old games?  Wizards of the Coast would probably not prevail on a claim of direct ownership of these games. As far as I can tell, courts have not addressed a case in which a party bases a claim on IP that is inside another product. The closest cases involve the use of a person’s likeness in a game, but the plaintiffs don’t try to claim ownership over the entire product. It may be that the original license agreement puts the “D&D” IP out of the reach of claims by TSR, and therefore out of the reach of WotC.

Ideally, the licensing contract between TSR, Inc and Westwood Associates has a paragraph for just this kind of question (this is why it pays to draft contracts with the worst possibilities in mind- like your company going out of business). If a court faced the claim that WotC has a claim on the distribution and sales of games featuring D&D settings and characters, I suspect* it would rather dismiss the claim on the basis of laches rather than address the tangled mess of IP licensing claims.

Conclusion: We Can Know The Risks, If Not the Outcomes

Abandonware seems to be technically illegal, but it also seems to be nearly unenforceable. That’s an uncomfortable place to be. It’s a strange state, and there are hardly any appropriate analogies that would help explain it. The best analogy might be a comparison to an old game that, despite being technically functional, won’t run on a current operating system. Abandonware’s legal challenge might be best described by its technical challenge.

 

*There is always a small risk of a surprise in court: A court could create the principle that when a party does not exist to protect a licensed IP, the licensor may step in and act as owner of that IP for some limited purpose. Some would call that “legislating from the bench.” The judge would call it “meeting the demands of justice in the face of technological development.”

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Software [Non-]Ownership: EULAs and Thinking About Property

We don’t really own most of the software we buy. As one writer put it a few years ago, “the software on my computer may as well be tied to a long piece of elastic, just waiting for the publishers to give it a tug.” That “piece of elastic” is a license, as in “End User LICENSE Agreement.” Almost all of the software we buy- especially what we download rather than physically purchase- is licensed to users by publishers and developers. These licenses vary from one piece of software to another*, but for a lot of games, the licensor (publisher or developer) has the legal right to take the game away from the licensee. Usually, the licensor will include specific reasons why they might do this, but will often round out the list with something like “or for any other reason.” There are not many limits on what this license cannot contain, must include, or how it has to be structured.

This model has been around for a long time, but I think it is fast becoming a serious problem. The core of the problem is that almost all users think, feel, and act as though they do own the software they have purchased. The American concept of property is still fundamentally rooted in John Locke’s Second Treatise of Government (a text that was a tremendous influence on the Founding Fathers and early US statesmen, politicians, and writers): if you work on something (or pay for it, or both), you have a claim of ownership on that thing. It is how we understand all of the other ownership paradigms in our society, and makes it easy to determine where ownership begins and ends. I cannot think of a single instance where one might purchase a physical object and not have full ownership rights over that object. Any arrangement where something is transferred with some kind of “elastic string” still attached is not called a “sale.” It is called “renting,” “leasing,” “borrowing,” or possibly “putting under mortgage.”

For most American minds, the concept of a “sale” includes the concept of a complete ownership transfer. I think it is easy to consider this one of the central reasons why there is so much resistance to copyright law, digital piracy laws, and other abstract controls on ownership of non-physical property. The laws that guide physical property do not apply to digital property, even though the only model we have for thinking about digital property is our history of thinking about physical property (Locke). A key point of contention is whether the legal concepts underpinning physical property must be different from the legal approach to digital property. The fact that US law does take these two different approaches does not mean that US law must take these two different approaches.

It may turn out that changes in net neutrality will affect how publishers and developers rethink this business model. As internet use becomes a worse experience, especially for data-intensive games, it is more important that companies ACTUALLY sell the product, not just license it. A data-choked internet will increase the need for offline gaming. It will create a whole new level of challenges for always-online DRM and increase the potential for server-crashing launch fiascos (e.g., Diablo3 and SimCity). A big reason that companies went to online-DRM models was to combat piracy. If net neutrality slips away, the ISPs might make piracy difficult enough (intentionally or unintentionally) to make developers feel more comfortable with moving to a sale-not-license model.

The only games currently practicing this kind of model are “abandonware” games: games whose developing companies have closed up, or have simply allowed their works to pass into the public without fuss. It is not clear that all presumed “abandonware” games are actually “orphan works” according to actual US copyright law. Indeed, a lot of games I’ve seen peddled under this banner are decidedly NOT orphan works and are not subject to the same freedom of transfer that the seller implies. But the videogame world operates on the legal principle of developers declining to enforce their civil rights against consumers as heavily as its programmers rely on the principle of “last in, first out.”

*I think the analysis is different for different software. Stricter license make sense for, say, reduced-cost versions of editing, publishing, or creative suite software for “Academic Use Only.” My position in this post is certainly not that “all licenses are bad,” or anything remotely close to that sentiment.

 

EDIT/ UPDATE:  Another recent blog post on this subject, from a slightly different angle.