Abandon Ware, Archives, and Emulation

The U.S. Copyright Office has recently specified new rules on allowing cellphone owners to hack software designed to prevent them from using their phones on competing carriers.

How will this affect gaming?

Well, one will also be a bit surprised to know that folks are now also permitted to crack copy protection on abandoned software titles for “archival” purposes. Here’s what the rules say about abandon ware:

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.

The rules also allow teachers to copy “snippets” from DVDs for educational compilations. Also for the blind you’re now free to have third-party software read copy-protected electronic books.

Get the rest of the article after the Jump!

The U.S. Copyright Office has recently specified new rules on allowing cellphone owners to hack software designed to prevent them from using their phones on competing carriers.

How will this affect gaming?

Well, one will also be a bit surprised to know that folks are now also permitted to crack copy protection on abandoned software titles for “archival” purposes. Here’s what the rules say about abandon ware:

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.

The rules also allow teachers to copy “snippets” from DVDs for educational compilations. Also for the blind you’re now free to have third-party software read copy-protected electronic books.

Is this a big front-kick to the groin of the Digital Millennium Copyright Act? Well, the DMCA has long been in place to criminalize circumvention of any kind of software protection, even in situations where copying would have fallen under fair use.

So, abandon ware fans rejoice. It’s now legal to hack copy protection on obsolete computer software and video games. Yay! Wohoo! Time to party! Er, what? There’s a problem?

Yep, you see, the term “abandon ware” is really hard to define. Take a look at what Wikipedia had to say about it.

There is no recognition of a legal term “abandon ware” in copyright law. There is a long held concept of “abandonment” in trademark law, but it is a direct result of the infinite term of trademark protection. Currently, a copyright can be released into the public domain if the owner clearly does so in writing; however this formal process is not considered “abandoning,” rather “releasing.” Non-owners of a copyright cannot merely claim the copyright “abandoned” and start using it without permission of the copyright holder, who would then have a legal remedy.

Usually any game that’s older than five years is considered “abandon ware” not because it has been abandoned and released into public domain, but because the copyright of really old games aren’t defended as much as the newer ones. Despite the products not being in the market anymore there are some companies that still actively pursue the copyrights of old games.

Given that all three next-gen consoles have means to suddenly “revitalize” an old product, we’re not really sure if a game is really “abandoned” or not. What if all of a sudden an exact copy of some old game shows up on Virtual Console, or the Sony Store, or on XBLA, what then? Is your “archive” illegal all of a sudden? How will the new laws from the US Copyright Office work?

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.

So as long as it’s not yet in XBLA, It’s completely legal to emulate the thing. Right? Because if its on XBLA then there’s a machine that available in the commercial marketplace that could “render perceptible” said game. Ergh. We feel so bamboozled. At times like this we wish we were smart enough to get into law.

In the end though, all of this is more of a point of interest. I mean, has anyone ever been arrested for finishing Chrono Trigger on their PSP?