Comment by sandworm | Hacker News Reader

Comment by sandworm | Hacker News Reader

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The exemption already exists.

(1) The DMCA, and for that matter copyright law generally, creates private rights of action in the copyright owner. Even if something is infringing on their rights they need not act. The decision is up to them.

(2) Copyrights do not pass automatically. Nobody can pick up the torch by asserting the rights of an inactive copyright owner.

(3) True abandonware involves either a disappeared copyright owner or one that no longer cares about an old title.

So ... do what you want with abandonware. If the copyright owner reappears and asserts his/her rights, then it wasn't really abandonware in the first place. That's the risk you run.

Also, copyright isn't what stops people from maintaining old games. It might be the easiest means of enforcement (ie takedown notices) but it isn't the meat. Nobody cares if you make copies of the original Civilization. The copyrighted game is valueless. But they do really really care about you using the "Civilization" trademark. That tidbit of intellectual property has nothing to do with the DMCA.

"The exemption already exists"... where? The rest of your comment only talks about how copyright is often unenforced in these cases, not that there exists an exemption.

Sandworm is saying that the exemption exists de facto due to the structure of copyright, since copyright violations are generally civil, not criminal.

My Dad works in biotech and he's fond of telling me the same thing about patents, which are crucial to that industry. "Patents are basically a tax that we have to pay to the lawyer industry, because a patent only exists insofar as you legally defend it. If we don't pay those lawyers, then much bigger biomedical and pharmaceutical companies will just steal our research for their profit." Or, "When your lawyers are preparing a patent, they sit you down and you have to describe exactly what you did. Then you describe it again. Then again, more and more abstractly, until you have something at the level of 'an object with a screen which a person reads medical numbers from', and they write all of this down, so that if someone steals only 50% of your idea, hopefully one of the levels in the middle is abstract enough to stop them, but not so abstract that the judge throws it out."

Copyright describes some situations during which you can sue someone else. Having this perspective changes a lot of things. Copyleft licenses say, for example, "I won't sue you unless you threaten to possibly sue someone else, unless you threaten to possibly sue them for possibly suing someone else a la this very sentence." No wonder GPL is more convoluted than BSD, which merely has to say, "I promise not to sue you; in exchange you are promising not to sue me. Also don't erase the fact that I wrote this."

> "The exemption already exists"... where?

17 U.S.C. § 1201, which is both named in the article and otherwise trivially googleable.

But this "exemption" that "already exists" isn't a matter of statutory text, it's a claim that some people won't get sued in practice.

What kind of answer are you looking to see wrt the question "where?"

> If the copyright owner reappears and asserts his/her rights, then it wasn't really abandonware in the first place.

This doesn't seem like something you can just throw out and accept people to accept. It's essentially saying, "The law is, do whatever you want. If we punish you, you're a criminal, so you deserve it." That isn't the way good law works.

Furthermore, just because a copyright holder takes interest once you've done something with it doesn't mean it wasn't abandonware. It's entirely possible that the copyright holder is hard to track down and doesn't even know they hold the copyright until after you have resurrected it.

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