[game_preservation] Abandonware

[Greg Boyd]

I have been practicing IP law in games for a while and I teach copyright
infringement in the following way for my video game law class.  Maybe some
of this is useful here.  It certainly applies for abandonware and for
preservation generally (more for older games).

What has to happen to lose a trial on copyright infringement?

1.  You have to be doing something that "may" be infringement.

2.  The rights holder has to know about it (unlikely in abandonware).

3.  The rights holder has to be upset about it.  (often they don't care or
are happy that someone cares enough to archive a game).

PAUSE - you usually get a "cease and desist" letter here which is a chance
to get out of everything for the problem material.

4.  The rights holder has to be REALLY upset about it.  How did you answer
that C&D?  (This is short-hand for the rights holder has to send a guy like
me $50,000 bucks to get started drafting a complaint for court knowing that
a case easily runs into six figures - also unlikely for very old software
without a financial future unless it is a franchise).

5.  The rights holder then has to take you to court and actually win.
(always a coin toss with fair use and other defenses - unless you are
stupidly selling the stuff - which no one in this group would do).

Short analysis - All 5 of those things have to happen.  How unlikely is
that?

Longer, fun, analysis:

1-5 are all AND statements in logic/programming speak.  By that, I mean
something like the probability of a fair coin coming up heads is 0.5.  That
probability of that happening twice is 0.25.  The probability of it coming
up heads five times in a row is 0.5^5 or .03125.

That example is for something that is 50/50.  The probability of items 1-5
above even if you give item 1 a value of 1.0 degenerates a lot faster than a
fair coin toss.  2 and 3 alone are shockingly improbable more improbable
with abandonware.

In short, taking on a little risk may be worth it as long you understand the
risk involved.  If if it is strictly speaking infringement, what are the
damages, who is going to know, and who is going to care?  If they do care,
who is going to care enough beyond asking you to delete your archived copy
and/or stop distributing it.  That C&D letter just cost them $1,000 to
write.  They don't want to put any more money into this case either.

I am NOT saying this is 100% OK, but I am saying that rational behavior and
imperfect knowledge makes the risk of this turning into a real legal problem
for a non-profit legitimate archiver usually pretty low.

Greg

This is NOT legal advice.  Every situation is different, but these are just
some general thoughts I have about the relatively low risk of
archiving/preservation generally.

On Sun, Jun 15, 2008 at 6:50 PM, Andrew Armstrong <andrew at aarmstrong.org>
wrote:


> There's a large body of worthwhile research there which I had forgotten to

> put in our resources section. It is still very worthwhile, and if not more

> so due to each articles respective age. While it might have dried up right

> now, a future project for the SIG certainly will be more articles like those

> :) so maybe in the future a push can be lead to get a few people

> contributing there.

>

> Problem is it must take a long while to properly research each article in

> any kind of depth. I presume if anyone wanted to contribute to the features

> they still could though? (you won't remove it entirely I hope!)

>

> And your thoughts on it are noted, a shame such a mission was thwarted even

> if illegal, although it is interesting to know the past of it, since I had

> no clue (I wasn't even online in 1997). I'll keep in mind your view it is

> still worthwhile though, which I do agree with.

>

> Andrew

>

> Jim Leonard wrote:

>

>> Andrew Armstrong wrote:

>>

>>> Thanks for the article link in any case Mike, I should really categorise

>>> the Mobygames features articles into the resource list properly.

>>>

>>

>> While I'm flattered, I don't think you'll be seeing many MobyGames feature

>> articles in the future.  I think that aspect of Moby has atrophied.  Still,

>> I did do legitimate research on the subject back then.

>>

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