For and Against Abandonware
That "goodwill" varies greatly from company to company, as Underdogs's experience has shown. "Implicit" permissions have been given, for example. "Dave Barry, designer of Ancient Art of War and part of Evryware.com, and the other Barrys e-mailed me, saying they liked my site and that they think it's okay for me to distribute their games since they can't be found anymore, let alone sold. I'm not sure who owns copyrights to their games, but I doubt if they do personally, so what I mean by 'implicit' is the fact that most of the time, it's the game designers who say, 'Thanks for keeping the memories alive,' but since they aren't the ones who hold copyrights, they can't really legally give me permission to distribute [their games]." Two companies, including Sierra, have requested that their games be removed, and in November of 2000 the IDSA e-mailed the site's domain registrar requesting that the domain name be disabled.
(When contacted, at first the IDSA representative I spoke to was unfamiliar with the case. Her later reply was simply, "The IDSA does not comment on ongoing cases," without confirming or denying that they are taking action against Home of the Underdogs.)
There are a number of game designers who would like to see the concept of abandonware formalized. One of the most vocal abandonware proponents has been designer Greg Costikyan, who argued the case for abandonware in a New York Times article. In that article, he states, "Software is about as ephemeral as you can get, yet preserving it is essential. Illegal abandonware sites are providing a critical service to game designers and scholars and gaming enthusiasts. They do not, however, provide a lasting and satisfactory solution to the problem because they are illegal." He calls for the creation of an online game museum which would acquire the legal rights to provide older games to the public, thus preserving the games for future players.
In the meantime, though, abandonware is still illegal, a problem which worries Underdogs. Still, Home of the Underdogs stays up, and Underdogs continues to maintain it, spending two to three hours a day on it. "Without abandonware sites, these games will be lost. I don't want them to be lost. It seems ridiculous to me that nobody will, say, ever know of Perry Mason [the Telarium game] in a few years time, while the original designer and publisher are nowhere to be found."
The SIIA and IDSA are unlikely to change their views unless their members do. Peter Beruk suggested that, if abandonware proponents are truly interested in securing permission to distribute old games, they should work with the US Copyright Office and potentially the Better Business Bureau in the town where the business was located. In his view, abandonware proponents aren't doing right by the games. "They need to respect the rights of copyright owners and many of their friends and colleagues who are in this business of creating code and content for others' enjoyment. It becomes an issue of respect."