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Warez, Abandonware, and the Software Industry PDF Print E-mail
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Kad je dosadno - Tko jamra ?
Written by Stephen Granade   
Monday, 27 April 2009

Stephen Granade: Warez, Abandonware, and the Software Industry.

Stephen Granade - FreeeBay.net 

 

 

 

Pubished with the permission of the author.

Introduction

What does it mean to own software? When I buy a game, what can and can't I do with it? Does illegal copying of software really hurt anyone? If a company no longer sells a game, should I be able to download a copy of it?

Too long ago, most people would never have given any of these questions a thought. But as computer use has spread, and with it the use of software, these questions have gained in currency.

The battles over software include many combatants. The software companies are trying to stop the illegal copying of their products. The abandonware users skirt along the border of legality, sometimes obtaining permission for their actions, oftentimes not; in the meantime, they try to distance themselves from the warez crowd as much as possible. The warez users are the anarchists of the bunch, in effect saying, "Sure, what we're doing is illegal. So?"

The battles are over control; specifically, control of intellectual property rights. The creators of software have control over their creations by means of copyright and trademarks; users of warez and abandonware sidestep that control for their own ends.

Intellectual property rights are more nebulous than traditional property rights.

 

 

Stephen Granade: Warez, Abandonware, and the Software Industry.

Introduction

What does it mean to own software? When I buy a game, what can and can't I do with it? Does illegal copying of software really hurt anyone? If a company no longer sells a game, should I be able to download a copy of it?

Too long ago, most people would never have given any of these questions a thought. But as computer use has spread, and with it the use of software, these questions have gained in currency.

The battles over software include many combatants. The software companies are trying to stop the illegal copying of their products. The abandonware users skirt along the border of legality, sometimes obtaining permission for their actions, oftentimes not; in the meantime, they try to distance themselves from the warez crowd as much as possible. The warez users are the anarchists of the bunch, in effect saying, "Sure, what we're doing is illegal. So?"

The battles are over control; specifically, control of intellectual property rights. The creators of software have control over their creations by means of copyright and trademarks; users of warez and abandonware sidestep that control for their own ends.

Intellectual property rights are more nebulous than traditional property rights. If I own something, it's easy to see the harm if my rights regarding it are infringed: I have lost something tangible. Intellectual property rights deal with intangibles, and as with all intangibles it's harder to see the direct harm. If I copy a game you wrote, you still have the code and can sell your game. What exactly have you lost?

These issues have become increasingly important with the advent of easy digital copying and the ready distribution network that is the Internet. If intellectual property laws are the pipes which help bring money to the creators, those pipes are springing leaks all over. Napster made it easy to download songs you don't "own". With Gnutella you can find plenty of software and music that you'd otherwise have to buy. Hundreds of Napster-like clones have sprung up following its demise. Websites have the latest and greatest games, as well as the old and hard-to-find ones, available for free downloading.

While the legal arguments regarding pirated software and abandonware are clear-cut, the moral ones are more muddied. Warez users, software companies, abandonware users: all have their own take on the subject.

Warez

The term "warez" comes from the word "software", and refers to software which is made available illegally, usually with any copy protection removed. The "z" is appended to most any term associated with such pirated software: applications become "appz," games become "gamez," software cracks to remove copy protection become "crackz." FTP sites where warez are kept? You guessed it: FTPz.

Pirated software, and especially pirated games, has been around for a long time. Many people who owned a Commodore 64, Apple, or Sinclair Spectrum had plenty of software cadged from friends and acquaintances. As bulletin board systems (BBS's) became popular, software copying became more widespread. Still, such copying was oftentimes limited by geography. You had to know someone directly or have access to a local BBS to download warez, or know of a group which was selling pirated software.

Software companies were not idle during this time. They added copy protection to their products. Some games required players to type in information from the manual or from a packaged codewheel in an effort to make copies of the game less useful. Others had on-disk protection which prevented the game from being run unless the original disk was in the drive. A few even required the use of dongles, pieces of hardware which attached to a PC's parallel port or a Mac's ADB port, to run.

These approaches, however, had limited success. Dongles added to the cost of developing software, and clever programmers could hack around the protection. Similarly, programs to defeat the common forms of on-disk copy protection were as plentiful as the copied software itself. Text files with the information required to play games protected by manual-based copy protection were also passed around. It was not until the advent of the CD-ROM and the concomitant rise in program size that piracy was slowed.

Even that didn't last for long. The people creating warez versions of games took to "ripping" those games, removing movies and music which weren't absolutely necessary to play the game in order to reduce their size. Archiving tools such as LHARC and later RAR allowed users to compress the ripped game files, and then split the resulting archive into diskette-sized chunks.

Recently, warez traders have taken to trading ISOs (or ISOz, if you prefer) of games. Named after the ISO-9660 CD-ROM file system, ISOs are digital duplicates of the CDs on which a program came. By downloading an ISO, burning it to a CD-ROM with a CD burner, and getting any programs necessary to defeat a game's copy protection, warez users can have full copies of games and other software.

Two things have come together in recent years to make home software piracy easier than ever before: the growth of the Internet (especially broadband access to the Internet), and the advent of cheap CD burners. Access to the Internet means access to information, and software is at one level nothing more than information. The world-wide nature of the Internet leads to a much wider selection of warez than before. Instead of downloading warez from a local BBS, people can download from repositories of warez half a world away. CD burners make it easy to archive warez for collection or for sale on auction sites such as eBay. Burners combined with fast access to the Internet make ISO trading possible: files which took too long to download over a 56k modem connection happen in a reasonable amount of time over a DSL or cable modem connection.

It has reached the point where warez versions of software are often available before the official version is. Disgruntled employees give away copies of software, or sell them to teams of software crackers. Game companies send out early copies of games to reviewers; some of those ends up in the hands of crackers, giving them the opportunity to distribute "0-day warez" before the game reach store shelves.

Different people are involved with warez for different reasons. At one end of the spectrum are individual users who download warez to avoid having to buy the software. At the other end are people and organizations which produce and sell illegal copies by the truckload. Selling warez can be lucrative, as overhead and software development costs are negligible.

Illegality and Benefit of Warez

All of this is, of course, illegal. Home warez users realize this, web site provisos about "this software is made available for backup purposes only" notwithstanding. Some people view warez use as a form of protest against software companies, a way to avoid what they see as exploitative pricing policies. Most, however, admit that the "software for free" aspect of warez is what make it so alluring. "Pushing all the wider issues aside for now, warez is initially downloaded by people all over the world for the same reason: you're getting something for nothing," says Beelzebub, who runs A Shade Below, an online warez information site. "When given a straight choice between paying £35 and downloading [software] free of charge only Mother Teresa would consider opening her purse."

This illegality, though, doesn't bother Beelzebub.

    Speeding is also illegal in the eyes of the law and everyone has done that at one time or another, but does that really make us all criminals? I'd hate to tempt fate, but I don't really think the FBI is going to kick down my door to seize a few dodgy CDs, which are for personal use only.

It’s a common assumption that pirates and the people who distribute warez on the net are synonymous. They are not; a pirate profits by acquiring software by whatever means and selling it on for their own personal gain, but this, simply put, is not the warez way. It goes completely against the scene’s ethic of free software. No one who is involved in the scene trades anymore, nor do they profit from uploading, instead warez is freely distributed to whoever wants it, all you have to do is ask nicely or loiter in the right places.

I agree, it’s still digital theft, but the fact that no money changes hands between the people who upload the software and those who download it makes a considerable difference in the eyes of the law and dramatically determines the course of any punitive action that may ensue. In the pond of criminality, we the leechers, if you like, are small fish compared to the dealers who produce copied CDs by the thousands. There’s no way that the BSA [Business Software Alliance] et. al. could hope to prosecute every single individual who has ever downloaded a piece of illegal software from the Internet. It clearly would not be economically viable, not to mention the fact that it would have little or no impact on the warez scene. Since I have never sold and never will sell warez I doubt that my name is very high up on the anti-piracy mob’s hit list so I’m not overly concerned about being caught.

Beelzebub is of the opinion that there are benefits to warez use. For one, there is a world-wide community of warez enthusiasts. "[The warez scene] is a club like any other, full of enthusiasts who share thoughts, ideas and friendships over a virtual medium." For another, warez has helped drive the sale of large hard drives and CD burners.

Finally, he is skeptical of industry statistics on how much software piracy costs companies. "The statistics are carefully massaged to inflate the apparent detrimental effects to the software industry. For years the way in which these losses have been calculated is to count the number of times that a piece of software has been illegally downloaded and then to multiply this figure by the recommended retail price of the product. This is absolute nonsense and is intentionally far too simplistic. In reality maybe one in every twenty people who downloaded the same software would have gone out and bought it from a legitimate supplier were it not made freely available on the net. The critical factor, which must be understood, is that they are not all potential customers."

The Software Industry

The software industry, of course, couldn't disagree more. The two major industry groups are the Software and Information Industry Association (SIIA) and the Business Software Alliance (BSA). Both organizations take software piracy seriously.

Each year for the past six years, the SIIA and BSA have compiled statistics on business software piracy. Their figures show that world-wide piracy has declined over the past six years, from a rate of 49% in 1994 to 36% in 1999. Despite this drop in the piracy rate, the calculated cost of this piracy has remained nearly the same, from $12.3 million in 1994 to $12.2 million in 1999.

How are these figures determined? According to Peter Beruk, the Vice-President of Anti-Piracy for SPA Anti-Piracy, a division of SIIA, the figures are compiled by International Planning and Research (IPR), a Washington, D.C. firm. IPR calculated how many computers were being sold into a country for business purposes and how much software was being sold. IPR then compiled statistics of what software was being used in office settings. From this they could calculate how much software should be sold to match the number of business computers in the country. The deficit between the ideal sales rate and the actual one is the piracy rate. By multiplying that number by the street price of the software in question, they arrive at the figure for lost revenues. This is done on a country-by-country basis.

Peter rejects the argument that, even if you eliminated piracy, software sales would not increase, at least in the business realm. "We believe that actually all of that number [of pirated copies] would have turned into [legally-bought] copies. Why would a copy be made and sitting on a computer if there was no intention to use it?"

The SIIA's approach to combating piracy is through a combination of education and enforcement. The educational aspects are especially important when it comes to home piracy use, since that use is harder to uncover. The SIIA's number one argument against the use of pirated software is monetary: the copyright holder can recover up to $150,000 for each infringed copy of their software. In addition, unauthorized software comes with no support, something which can be especially irksome in a business setting. Peter also stated that viruses are a problem. "We have found in many cases that software that's available for download on Internet sites may contain a virus."

While this $150,000 per illegal copy sounds intimidating, in reality the full extent of this potential fine has not been levied against any organization. Granted, this is a new figure -- until the spring of 2000 the figure was $100,000 per infringed copy -- but even that amount had not been assessed. "The intent of the law is not to essentially take $100,000 per title from every organization and every individual out there. It's really meant to be a deterrent. However, if a judge, assuming a lawsuit has been filed, if a judge finds that the infringement was willful, that is the maximum that that judge can award." Instead, the SIIA has settled cases out of court.

Despite the SIIA's focus on businesses and organizations, they do take action against individual pirates from time to time. According to Peter, "We have certainly sent letters to end-users, many of which may operate an Internet site and allow people to download software, or to end-users who are selling illegitimate products on Internet auction sites." He expects the number of such incidences to increase in the near future, especially as DSL and cable modem connections make it easier for people to create warez web sites. While most of these matters are settled via cease-and-desist letters, the SIIA is willing to see offenders thrown in jail, especially if it will act as a deterrent to others. "It's not something that we frankly want to see people go to jail for, but if it reduces the problem and then in turn compensates copyright owners, we're all for it."

Abandonware

In recent years, a new category of illegal software has arisen: abandonware. As games age, software companies don't want to provide support for them. Eventually the games become out of print. Fans are interested in playing these games, but cannot find them. Abandonware fills this gap.

Computer games are a relatively new art form, and an ephemeral one at that. Companies crank out games at an ever-increasing rate. In the meantime, given the volatility of the gaming industry, companies are bought, broken into pieces, auctioned off, and merged with other companies. Oftentimes game companies don't know what old titles they own the copyright to. The information is buried in old archives, and may never see the light of day. Meanwhile, warez sites house only the most recent of games, and have no archives of older games.

Enter abandonware. Abandonware refers to games which are effectively out-of-print and unavailable, games which companies have "abandoned". By making these games available, abandonware sites allow new gamers to discover older games such as M.U.L.E. and Star Control 2, or for owners of older games to replace disks gone bad when a company will not or cannot.

Abandonware is a new concept, having gained currency in 1997. In late 1997 the Interactive Digital Software Association (IDSA) and the Software Publishers Association (which merged with the Information Industry Association in 1999 to form the SIIA) sent cease-and-desist letters to a number of the nascent abandonware sites, which promptly shut down. However, in 1998 a number of notable sites such as Home of the Underdogs, The Ring of Ages (now defunct), and TUOL were established; since then, abandonware sites have spread like wildfire.

Despite the newness of the concept, abandonware is as illegal as warez. Copyright lasts for 75 years if not renewed; no computer game has yet reached that magic age. As Peter Beruk pointed out, "If an organization goes out of business, and it was in the business of developing commercially-available software, even though that organization may not be in formal existence, that copyright may have been transferred to a third party. If that third party wanted to bring infringement action against an individual, an organization, or anything in between, for infringing the rights of the copyright owner, they'd be able to do so."

Despite this, advocates of abandonware strive to adhere to a certain code of conduct. They distance themselves from the concept of warez, avoiding terms such as "abandonwarez" and restricting themselves to games which are at least five years old and are not currently being sold by a company.

A good example of such a site is the aforementioned Home of the Underdogs. Underdogs, the Hong-Kong-based webmaster of the site, created the site in part to spotlight old games which were overlooked by many gamers. The abandonware aspect came second: "My intention from the start was to make a site devoted to underdogs of all ages, abandoned and not; but then, most underdogs tend to be abandoned almost by definition -- poor sales, poor marketing etc. And I thought, well, what's the use of building a site like this if nobody can experience that these games are good? I knew it was illegal, but I always thought of this whole thing on a 'goodwill' basis: abandonware sites are in a sense performing a service to the gaming community, so that (I thought) they would be permitted (indirectly) by game companies to stay alive."

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 its 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."

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