A home for orphan code?
First posted on 12 December 1998. Last updated on 28 June 2010.
When a software company goes out of business or decides not to release a finished product, what should happen to the code it has written? In the gaming industry, these codes are referred to as "orphan" codes. The word "orphan" refers to 2 types of software. The first and more common type of orphan software is a commercial game title which, after being sold for a time, is withdrawn from the market, either because the publisher discontinues its publication or because the publisher itself has gone out of business. The second, less common type of orphan software, is a project which, once completed, is never published. In this article, I propose the creation of a software orphanage for these "orphan" codes.
The dilemma of warez
Gaming software brings something very tempting into the world—toys which can be easily stored and endlessly duplicated with no degradation of quality or function. This is a difficult temptation to resist. Why pay money for something when technology makes it possible to copy it for nothing? While not everyone may be comfortable with the idea of warez, what can be done if a favorite adventure game is no longer commercially available? Is there any harm in making a copy if there is no one left to collect the license fee?
The dilemma is substantial. Gamers with an acute sensitivity to the law contend that using software for which the license fee has not been paid is a violation of copyright. This means if there is no one to collect the fee, the software cannot and should not be used. This is, in effect, a near absolute death sentence for any software released by a company which eventually goes out of business. It is "near absolute" because the publication and distribution rights for software originally published by a company which has gone bankrupt can be purchased by a second publisher. Examples of these games are Jewels of the Oracle and Karma: Curse of the 12 Caves. Both titles have survived the collapse of Discis Entertainment when their publication rights are purchased by DreamCatcher Interactive.
Out of business, out of mind
Gamers with a more flexible view of the law can contend that once a company goes out of business that its property rights effectively disappear. Even if the rights may still be there, who is going to spend the time and money to track down people who make a personal use copy of a game which has not been published for years? Is making the copy illegal? Technically, yes. Actionable? Probably, but who shall bring on the action? While the case can be made that the duplication of software orphaned through bankruptcy is not substantively different than the appropriation of intellectual property practiced by the warez community, there is one critical difference—there is no one to complain about it.
Framing the discussion in terms of compliance or violation of copyright law, while interesting to lawyers, seems to me to miss the larger point. Game software, as a toy, remains functional whether or not the company which published it remains solvent. Does it make sense to contend that this functionality becomes legally unavailable once a company ceases to exist? Or is there a more moderate alternative?
A central clearinghouse
My modest proposal is that a group akin to the Software Publishers Association (the "do not copy that floppy" folks) creates a central clearinghouse for orphan game titles. This "clearinghouse" then becomes the publisher of record, offering consumers the opportunity to purchase modestly priced, virus free copies of any game in its catalog. The game can be shipped on CD containing the original documentation in printable scanned and/or text form. In the case of any game titles created by now defunct companies, the clearinghouse also makes a good faith effort to locate anyone with a legitimate interest in the republication of specific software. In the case of any game title which is no longer being published by still solvent companies, the clearinghouse can relieve the companies of the need to say "No, we do not offer or support that anymore" when customers call up looking for older versions of their favorite games. Instead, the companies can now say, "While we no longer offer or support that version any more, you can call the clearinghouse at 1-800-ORPHANS or visit ORPHANSOFT.COM and find a copy there."
There is even a possibility, though admittedly as a long shot, that the clearinghouse can become the publisher of games which, while finished, have never been offered for sale. Not only may this be of tremendous historical interest, it can effectively kill rumors and speculation about projects that never make it out the door. Imagine being able to fire up games such as Spellcasting 401 or Space Quest VII. Unless something like the clearinghouse comes into being, it is not clear how else that can happen. Can something like the clearinghouse exist? Yes, but only if there is a willingness to embrace the idea that the fate of still functional software needs not be linked to the fate of the company which creates it. The clearinghouse can provide a middle path between the pointless prohibition of using software from defunct companies and the questionable practice of freely distributing software which is no longer being published.
The concept of the clearinghouse is an attractive one. In today's market where the willingness of companies to develop adventure games is at an all-time low, such an effort should not only please the gaming public who is hungry for more adventure games but also allow the release of previously shelved games that are otherwise abandoned forever.
Dvorak, J. C. (1995). Free the Code. In PC Computing. New York, NY: Ziff-Davis Publishing Company, L.P.