In most cases, software classed as abandonware is not in the
public domain, as it has never had its original copyright officially revoked and some company or individual may still own rights. While sharing of such software is usually considered copyright infringement, in practice copyright holders rarely enforce their abandonware copyrights for a number of reasons – chiefly among which the
software is technologically obsolete and therefore has no commercial value, therefore rendering copyright enforcement a pointless enterprise. By default, this may allow the product to
de facto lapse into the public domain to such an extent that enforcement becomes impractical. Rarely has any abandonware case gone to court, but it is still unlawful to distribute copies of old copyrighted software and games, with or without compensation, in any
Berne Convention signatory country.
Enforcement of copyright Old copyrights are usually left undefended. This can be due to intentional non-enforcement by owners due to software age or obsolescence, but sometimes results from a
corporate copyright holder going out of business without explicitly transferring ownership, leaving no one aware of the right to defend the copyright. Even if the copyright is not defended, copying of such software is still unlawful in most jurisdictions when a copyright is still in effect. Abandonware changes hands on the assumption that the resources required to enforce copyrights outweigh benefits a copyright holder might realize from selling software licenses. Additionally, abandonware proponents argue that distributing software for which there is no one to defend the copyright is morally acceptable, even where unsupported by current law. Companies that have gone out of business without transferring their copyrights are an example of this; many hardware and software companies that developed older systems are long since out of business and precise documentation of the copyrights may not be readily available. Often the availability of abandonware on the Internet is related to the willingness of copyright holders to defend their copyrights. For example, unencumbered games for
Colecovision are markedly easier to find on the Internet than unencumbered games for
Mattel Intellivision in large part because there is still a company that sells Intellivision games while no such company exists for the Colecovision.
DMCA The Digital Millennium Copyright Act (DMCA) can be a problem for the preservation of old software as it prohibits required techniques. In October 2003, the US Congress passed 4 clauses to the DMCA which allow for reverse engineering software in case of preservation. In November 2006 the Library of Congress approved an exemption to the DMCA that permits the cracking of copy protection on software no longer being sold or supported by its copyright holder so that they can be archived and preserved without fear of retribution.
US copyright law Currently, US copyright law does not recognize the term or concept of "abandonware" while the general concept "orphan works" is recognized (see
Orphan works in the United States). There is a long-held concept of abandonment in
trademark law as 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, but rather releasing. Those who do not own a copyright cannot merely claim the copyright abandoned and start using protected works without permission of the copyright holder, who could then seek
legal remedy. Hosting and distributing copyrighted software without permission is illegal. Copyright holders, sometimes through the
Entertainment Software Association, send
cease and desist letters, and some sites have shut down or removed infringing software as a result. However, most of the Association's efforts are devoted to new games, due to those titles possessing the greatest value.
EU law In the EU in 2012, an "Orphan Works Directive" (
Directive 2012/28/EU) was constituted and is transferred into the members' laws. While the terminology has ambiguities regarding software and especially video games, some scholars argue that abandonware software video games fall under the definition of
audiovisual works mentioned there.
Copyright expiration Once the copyright on a piece of software has expired, it automatically falls into
public domain. Such software can be legally distributed without restrictions. However, due to the length of
copyright terms in most countries, this has yet to happen for most software. All countries that observe the
Berne Convention enforce copyright ownership for at least 50 years after publication or the author's death. However, individual countries may choose to enforce copyrights for longer periods. In the United States, copyright durations are determined based on authorship. For most published works, the duration is 70 years after the author's death. However, for anonymous works, works published under a pseudonym or
works made for hire, the duration is 120 years after creation, or 95 years after publication, whichever comes first. In France, copyright durations are 70 years after the relevant date (date of author's death or publication) for either class. However, because of the length of
copyright enforcement in most countries, it is likely that by the time a piece of software defaults to public domain, it will have long become obsolete, irrelevant, or incompatible with any existing hardware. Additionally, due to the relatively short commercial, as well as physical, lifespans of most digital media, it is entirely possible that by the time the copyright expires for a piece of software, it will no longer exist in any form. However, since the largest risk in dealing with abandonware is that of distribution, this may be mitigated somewhat by private users (or organizations such as the Internet Archive) making private copies of such software, which would then be legally redistributable at the time of copyright expiry. ==Alternatives to software abandoning==