The Terabyte Tenderloin

The Terabyte Tenderloin
The Vintage Game Preservation Society

Les Chappell | 25 Nov 2008 12:26
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From a technical standpoint, the majority of these games no longer function on modern computers, which lack a floppy drive and don't run on a DOS-based operating system. Abandonware sites compensate by offering a series of emulators, such as DOSBox and VDMSound, that allow a computer to process the slower rate of the game and produce the more "primitive" beeps and whistles of earlier hardware. Abandonware sites typically label games with which emulator handles them best, and offer tutorials to help users work through installation issues.

So who visits these sites? According to "Bakkelun," founder of The DOS Spirit, it's people like me: "adult males trying to find that long-lost title they used to enjoy in their youth." Traffic varies depending on the site's size, but larger sites like Abandonia or Home of the Underdogs see 10,000 to 20,000 unique visitors and about a terabyte of downloads every month. "Latis," webmaster of XTC Abandonware, estimates the site sees an average of 5,000 downloads a day.

Gone, but not Forgotten
When I discovered these sites, my first instinct was naturally to download as many games as my hard drive could handle. Then a tiny little light flickered on in the back of my head: What's the catch?

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The catch is that abandonware is, quite simply, illegal. In the same way that downloading music or television shows can get you a frightening letter from the Recording Industry Association of America, anyone who provides these games for download is violating the creator's original copyright.

"The basic rule is that copyright protects certain kinds of work like computer and video games, and gives the copyright holder the exclusive right to reproduce the work," says Anuj Desai, an associate professor of law at the University of Wisconsin-Madison with a focus on communication networks and copyright. "The ware may be abandoned, but the legal rights aren't abandoned."

Companies are known to defend those rights, and on multiple occasions have issued cease and desist letters to abandonware websites asking for the removal of their titles. Much of these requests are driven through the Entertainment Software Association, which Bakkelun considers "the RIAA's answer to the game industry." The ESA defends its members' sole distribution rights of their titles, as evidenced on Abandonia where my old favorites Crusader: No Remorse and Pagan: Ultima VIII are stamped with an ESA "no go!" tag.

If any legal protection for abandonware exists, it can be found under the umbrella of the Digital Millenium Copyright Act. In 2006, when the DMCA was up for revision, the Library of Congress approved six exemptions related to technological controls against copyrighted works. The second of those exemptions stated that if a program or game is distributed in an obsolete format, its media can be altered "for purpose of preservation or archival reproduction."

What this action means, Desai says, is that abandonware enthusiasts have permission to crack any encryptions that would prevent them from accessing the game files, allowing them to access games that operate on systems such as DOS platforms or floppy disks. However, the law doesn't permit the copy or distribution of these titles by anyone other than the provider.

While the exemption will remain in effect until October 27, 2009, Desai says that he has no reason to suspect it will not be renewed when it comes up again for consideration. "They've had it twice in a row," Desai notes. "Usually when somebody has asked, they've approved it."

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