Copyright Ownership of Abandonware

There are several old versions of different software no longer distributed or supported by their owners as they tend to shift their focus to the newer versions and find these older versions less profitable. “Abandonware” is the name given to refer to these old versions. In common parlance, the term is used to denote “out-of-print” video games and software made available on the internet for free. However, it is important to note that abandonware can widely vary in its type and so does the copyright implications these entail. Most abandonware may not be commercially available to the public but their owners may still impose their copyrights on them.

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The unauthorized use of copyrighted work is considered infringement. The US Copyright Law does not recognize the term “abandonware” but recognizes the wider concept of “orphan works” which can be said to be a superset of “abandonware”. Under the Copyright Law in the US, there is no fair use exception of copyright protection provided to “abandonware” or “orphan works”. The Library of Congress in 2006 made an exemption to the 17 USC (Digital Millennium Copyright Act) to allow hacking of the copy protection on software no longer sold or supported by its copyright holder.[1] However, not all kinds of abandonware are exempted by way of these amendments. This exemption is only extended to games and software that are protected by “dongles” or “distributed in formats that have become obsolete”.

Hence, the simplest answer to the question of “whether unrestricted use of Abandonware is Legal?” will be a No. Software owners try to impose strict copyright on their products to increase profits. Adobe has even gone to the extent of suing its customers for using an old version of their software by putting such restrictive clauses in their license agreement[2]. Hence, there is a clear trend of software owners and developers to restrict users to use old versions of their software on which they have canceled support. The canceling of support for an older version of the software does not affect the copyright ownership that the manufacturer has on it. Although there are tons of abandonware, especially video games, available for free on the internet, its owners rarely chase down the individuals using them or the parties facilitating their availability.  Scholars argue that manufacturers take such a soft stance at initiating legal actions as they come at a cost of the manufacturer’s repute and image in the public.[3] However, some instances indicate otherwise.

In the Computer Industry, it is an established principle that newer versions of a software made from an older version can be referred to as a derivative work of pre-existing work in terms of Copyright Law. The copyright in a derivative computer program extends only to the additions, changes, or other new materials that are included in the program for the first time, and does not imply any exclusive rights in preexisting material taken from prior versions. This interpretation is in line with 17 U.S.C. §103(2) which states that The copyright in a derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.Therefore copyright in a newer version of a software/ computer program shall be independent of the copyright in the pre-existing program. This principle/law is a handy mechanism to restrict the copyright enforcement of a software manufacturer on its works by drawing a line between the copyright extended to the pre-existing work and the derivative work.

Another handy mechanism is 17 U.S.C. § 1202 (f) which allows circumventing of technological protection measures and reverse engineering of a computer program in order to figure out how to make the program interoperable. In the words of the aforementioned section, “a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention”. This law can put a bar on strict enforcement of copyrights by software manufacturers by giving users the right to reverse-engineer old-versions of software acquired legally.

Author: Aparthiba Debray, a student of Institute of Law (Nirma University), intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

References:

[1] https://web.archive.org/web/20131123031312/http://www.copyright.gov/1201/2006/index.html

[2] https://www.gizbot.com/internet/news/adobe-may-sue-customers-using-the-older-version-of-photoshop-060042.html

[3] https://www.maketecheasier.com/what-is-abandonware/

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