When Gremlin put its old games on an official compilation CD, buyers complained that some of the versions on the disc were cracked, pirated copies. AmigActive explained why in January 2000: “software companies have extremely short memories and small vaults”, and after a decade of takeovers and changes of platform, “an awful lot of master copies of software have all but disappeared.” That, the magazine said, “is ostensibly where the ‘abandonware’ piracy movement gets its justification.” Its supporters saw themselves as an unofficial preservation society, keeping old programs in circulation so that they would not be lost. “Legally, they haven’t a leg to stand on,” AmigActive concluded, “but it is true enough that literally thousands of software programs are gone forever.”
Both halves of that verdict still hold. Abandonware names a real problem: games disappear from sale, their publishers fold, and their rights pass through so many hands that nobody may be able to sell a copy. But it is a community word, not a legal one, and the law in Britain, the United States and elsewhere does not let a copyright lapse because its owner has stopped using it.
Fast facts
- The idea: old commercial software, no longer sold or supported, shared online by fans.
- When: the first sites appeared around 1996–97, according to Retro Gamer.
- The community’s rule of thumb: over four years old and unsupported, as PC Zone described it in 1999. The age has no legal meaning.
- Legal status: not a legal category. Copyright in a program written by a person lasts, in the UK, until 70 years after the author’s death.
- The legal route: rights holders releasing games themselves, and shops such as GOG that clear the rights to sell old games again.
What the word meant
The term grew up with the web. Retro Gamer dated the first sites to “around 1996-7”, and described how they “quickly spawned a massive collection of online archives”, with DOSBox and other tools making old PC games run on new machines. The popular definition, the magazine wrote, was software “long been forgotten by the original creator, or a game that has been left in retail limbo due to the closure of a company”. Writing in PC Zone in March 1999, Phil Wand gave the rule the sites worked to: commercial software “over four years old, no longer supported by the publishers”.
The publishers’ trade body used the word differently. When Retro Gamer asked John Hillier of the Anti-Piracy Unit at ELSPA, the Entertainment and Leisure Software Publishers Association, for its official description in 2005, he answered: “ELSPA defines abandonware as software which is still available, but on which further support and development has been deliberately discontinued.” For the fans the word meant a game you could no longer buy. For ELSPA it meant one the publisher had stopped supporting.
What the law says
Copyright in a program does not depend on whether anyone is selling it. In the UK, programs are protected as literary works, and since 1 January 1996 copyright in a work with a human author has run until 70 years after the end of the year in which the author dies; a shorter term of 50 years from creation applies only to “computer-generated” works. Retro Gamer summed up the position in 2004: in the US copyright stays with the company “for 95 years”, in the UK with the creator “for the duration of their life and for 70 years afterwards”, and the Berne Convention extends that protection across its member countries. No game of the 1980s has come anywhere near the end of its term.
Hillier’s answers in 2005 made the same points from the enforcers’ side. Asked whether age made a game abandonware: “No, as some companies may wish to release ‘old’ games at a later date.” Asked whether a game became free when its publisher closed: “Often when a company ceases trading, the rights to the intellectual property are sold on”, and “In the majority of cases, someone, somewhere usually owns the copyright, whether or not they do anything with it.” A site that claimed permission would need “written approval from all the relevant copyright holders”. Two of his answers were looser than the statute. He mentioned a “50-year limit on copyright”, which is shorter than the term for any program with a named author. And he described giving copies away as “a civil tort in the eyes of the law”, for the owners to pursue, while selling them was a criminal offence “under the Trade Marks Act 1994 and the Copyright, Designs & Patents Act 1988” with a maximum of ten years in prison. The 1988 Act itself makes it an offence to distribute infringing copies even outside a business “to such an extent as to affect prejudicially the owner of the copyright”, and since 2003 it has covered making a work available online on the same terms.
What the law does allow is narrower than the sites claimed. In the UK a lawful user of a program may make a back-up copy “necessary for him to have for the purposes of his lawful use”, and libraries, archives and museums may copy items in their own collections “in order to preserve or replace” them. In the United States the courts have protected reverse engineering: in Sony v. Connectix the Court of Appeals ruled in 2000 that copying the PlayStation’s firmware in order to write an original emulator was fair use. That ruling covered what went into the emulator, not copying or distributing the games or firmware themselves.
Elite: when the authors disagree
The hardest part of the question is often who owns a game, and the clearest case involves no vanished publisher at all. Elite had two authors, and both were easy to find.
Retro Gamer’s account is that Ian Bell “deemed that Elite should be made freely available for anyone’s use” and offered it on his website, while David Braben “disputed this, and originally insisted that it must not be made available for nothing”. The row came to a head in 1999, alongside a dispute between them over royalties, and “Bell’s website was even closed down following legal action”. Bell’s own account, on the site, is that “On 9/9/99 this site was taken down by the hosting ISP after it was threatened with legal action by David Braben over an alleged breach of distribution rights in the Elite files on the site.” The site came back. Retro Gamer reported that Braben later said publicly he had no problem with the game being available, while pointing out “that the Elite IP still belongs to Bell and himself”. One co-author could not settle the question alone.
Enforcement
The early sites worked to an unwritten rule: host only games that were no longer sold or supported. It did not last. In Retro Gamer‘s words, “sites started to offer commercially available titles, and games that were still actively supported by the original IP holder were available illegally. Soon the lines between abandonware and warez were blurred to such a degree that it was inevitable the authorities would step in.” PC Zone had already reported in 1999 that the Software Publishers Association, the American trade body, had closed “countless sites in North America”. Many sites shut; others cut back, took down games when owners asked, or began “to post links to official online resellers of games”. Retro Gamer named Home of the Underdogs, the best known, as a site that would “remove titles at the owners’ request”.
The legal route
Rights holders could end the argument by giving their games away, and some did. Retro Gamer listed “Rockstar’s Grand Theft Auto, Revolution’s Beneath a Steel Sky and Sierra’s Tribes” among commercial games “made freely available to the public by their copyright holders”. Maxis put the original SimCity, ten years old in 1999, on its website in a version that ran in a web browser, which PC Zone held up as the alternative to the abandonware sites. id Software went a different way: Amiga Format reported that “the Doom source was made freely available during the Christmas season” of 1997. By February 1998 The Amiga Informer reported “four known ports” for the Amiga.
The commercial answer came later. CD Projekt opened Good Old Games, now GOG, in 2008 to sell old PC games legally and without copy protection. In November 2024 it started a Preservation Program, which promises that the games in it “remain playable on modern systems, even after their developers stopped supporting them”.
Sources
- AmigActive issue 4, January 2000: the Gremlin compilation, lost master copies and the “abandonware” movement.
- Aaron Birch, “Abandonware: Gone but not Forgotten”, Retro Gamer issue 15, 2005, pp. 63–65: the first sites, the popular definition, DOSBox, the warez blur, sites closing and linking to resellers, the “Elitism” sidebar, legitimate free releases, and the interview with John Hillier of ELSPA.
- Phil Wand, internet column, PC Zone issue 74, March 1999: abandonware as software “over four years old”; the Software Publishers Association; Maxis’s SimCity Classic on the web.
- “Breaking the law”, Retro Gamer issue 1, 2004, p. 175: copyright terms in the US and UK, the Berne Convention, “Technically, there’s no such thing”, Home of the Underdogs.
- Copyright, Designs and Patents Act 1988, sections 12, 42, 50A and 107, as amended (legislation.gov.uk): the term of copyright, preservation copying by libraries and archives, back-up copies, and criminal liability. https://www.legislation.gov.uk/ukpga/1988/48
- Ian Bell, “Elite Home Page Editorial”, Legal Status section (web, secondary, Bell’s own account): the site taken down on 9 September 1999. http://www.iancgbell.clara.net/elite/editor.htm
- Amiga Format issue 108, March 1998, news: the Doom source released at Christmas. The Amiga Informer issue 12, February 1998, also reported that “The source code to DOOM, by ID Software, has been freely released”.
- GOG, “GOG Preservation Program” (web, secondary). https://www.gog.com/en/gog-preservation-program
- Wikipedia, “GOG.com” (web, secondary): the 2008 launch and the 2024 Preservation Program. https://en.wikipedia.org/wiki/GOG.com