Abandonware: What the Law Actually Says (and Doesn't)

Note: this is a general explainer for readers, not legal advice.

“Abandonware” is a comfortable word for a messy situation. It suggests that if a publisher stops selling a game, the game becomes free to copy. That is not how copyright works, and it is worth being clear about that before saying anything more generous.

Start with what is settled. “Abandonware” is not a legal category. Copyright in a game does not lapse because it is out of print, because the publisher went bankrupt, or because nobody is enforcing it. In the United States, works made for hire by a company are protected for a very long time, 95 years from publication under current law, so essentially nothing from the home-computer era has reached the public domain. Rights often pass to whoever bought the catalog, and that can be a company that has never heard of the game.

What is genuinely contested is everything that follows. Rightsholders are entitled to enforce or not enforce as they choose, and many tolerate fan-hosted archives of very old games for years. But tolerance is not permission, and it can end at any time. Nintendo’s lawsuits against major ROM-hosting sites in 2018 ended in multimillion-dollar settlements, a reminder that some publishers pursue this actively.

The case for preservation is not an abstract one. In 2023 the Video Game History Foundation and the Software Preservation Network published a study of a sample of 1,500 US-released games from before 2010 and found that roughly 87 percent were out of print. Some platforms fared worse. Whatever one thinks of the law, that is a large volume of cultural history with no legitimate way to buy it.

That is where the formal channels come in. In the US, the anti-circumvention provisions of the Digital Millennium Copyright Act (section 1201) prohibit bypassing copy protection, but the Librarian of Congress, on the Copyright Office’s recommendation, can grant temporary exemptions in a review held every three years. Video game preservation has been part of that process for years, allowing libraries, archives, and museums to preserve certain games under conditions, including limits on how the preserved copies can be accessed. In the 2024 rulemaking, however, a request from the Video Game History Foundation and the Software Preservation Network to let institutions share preserved games remotely with researchers was not granted. The existing exemptions were renewed instead. Exemptions are also narrow, and they don’t turn other activity, like distributing games to the public, into something lawful.

The Internet Archive hosts large browser-playable collections of older software, and other preservation efforts operate through libraries or research institutions. Their legal positions differ, and rightsholders can and do request removals. That is how the system tends to work in practice: takedown requests, rather than court rulings, decide most of what stays online.

There is a commercial route too. Companies such as GOG and Night Dive Studios have made a business of tracing rights and re-releasing older games on modern systems. When it works, it is the cleanest outcome for everyone. It just doesn’t scale to every obscure title, because rights research is expensive and the potential audience is small.

So, honestly: the gray zone is real, the risk isn’t evenly distributed, and preservation advocates aren’t asking for a free-for-all. They’re asking for a lawful path for institutions to keep culture from vanishing. It’s a reasonable request, and the argument is still being had.