A home for orphan code revisited
First posted on 19 July 1999. Last updated on 11 December 2008.
The original article A home for orphan code? by Bradford Roberts discusses several ethical and practical issues on the fate of orphan codes. In it, he proposes the establishment of a clearinghouse which can act in the absence of a publisher to distribute orphan game titles. He also raises questions such as "What can be done if a favorite adventure game is no longer commercially available?" and "Is there any harm in making a copy if there is nobody left to collect the license fee?". While such concept may be attractive on the surface, both its definition and execution demand further clarification. In my opinion, there are multiple harms to consider.
Player demand
The first harm is to the publishers' attempt to control player demand. If you are playing their old games, you may not be so anxious to get to their new games. Since they make more money from newer games, they want to maximize your demand for their new titles. Technically, this can be across company lines. The bank which now controls the rights for the game of a defunct company may not want an old game available so that demand is increased for a new game by a company that also has a loan from that bank.
The release of an old game can stimulate demand, such as Activision's freeware release of the first three Zork titles to hype the release of Zork Grand Inquisitor. On the other hand, too much release of old materials may depress demand. We can argue how much one way or the other, but legally and morally the control rests with whoever owns the rights to the game. It is their game, and it is up to them to decide how the game's availability should further their interests. That is what the free market is all about. Consider Disney's releases of old animated films, especially those debuted in the pre-video days—each film would be re-released in the theatres only once a decade or so, in time to lure in a new batch of kids who had never seen it.
It should also be noted that the interests may not be financial. A retired old coot may want to help the struggling young whippersnappers by keeping players' time free, not tied up playing the old classics.
Bury the past
A company may want to bury an old game because it just sucks. Playing such a game may bias the player against the company or creators and affect the sales of the newer titles.
Cross market
There is also cross market harm to consider. Steve Jackson has rigorously stomped on computer Ogre games (there were some unlicensed Ogre clone games made in the 1980s). I am unclear on his reasons, but they are likely connected to the Ogre board game he publishes. A computer game may depress demand for the board game, or a bad computer game (maybe even a licensed game) may give people a bad idea of the board game, thus again depressing its demand.
Re-released games
Another harm is to the publishers' rights to re-release their previous games. This is because many game titles, which have previously been published but are no longer available in retail sales, may no longer be truly orphan software when the publishers decide to periodically repackage them and sell them off as collections or greatest hits. Such marketing ploy has been employed Sierra On-Line by the re-releases of various commemorative collection series. Gabriel Knight, King's Quest, Leisure Suit Larry, Police Quest, Quest for Glory, and Space Quest are all adventure game series which have been recompiled and re-released by Sierra On-Line. In fact, Sierra On-Line has made it a habit to release such compilation periodically in order to extend the shelf life of their titles. Such marketing practice may eliminate the concept of abandon ware and challenge the role of the clearinghouse to distribute these once orphaned warez.
Shelved games
Is there any harm in releasing games that are never completed? In this sense, the concept of orphan codes may be extended to game titles that are in development but are now either shelved or put on hold indefinitely. Such examples include Phantasmagoria III and Space Quest VII: Return to Roman Numerals, DogDay II: Chegga's Revenge, Planet Explorer II, Activision's modern revamp of the Infocom classic Planetfall, and the highly publicized Star Trek: Secret of Vulcan Fury. Recently, Adventure Soft has also chosen to abandon the original codes used in Simon the Sorcerer III in favor of a new 3D graphic engine. In all these cases, what should become of the orphaned codes? Part of the demise of these titles, aside from the loss of market interest, is attributed to technological depreciation. This is because the long development cycle (in years) of an adventure title often results in a final product which looks so outdated by the time it is close to the release date that it is financially sound to simply abandon it rather than releasing it for retail sales in order to avoid incurring further financial losses. The codes used in these titles, thus, fall in another niche of orphanage. It is conceivable that the clearinghouse can take the additional role of distributing these now orphaned codes to obsessed gamers who wish to complete programming these titles and release them to the gaming public as abandon ware. While such an effort is certainly possible, it is doubtful these recycled codes, which are often released without much documentation, are workable enough to be further developed by amateur enthusiasts into playable games.
Legal abandon ware
There are some examples of legal releases of abandon ware. Scott Adams has made his old adventures freeware (not public domain). Mythos Games (X-COM) has gone to some effort to make its early games available for free (they run on emulators for defunct machines). These examples give some more motivation to create a clearinghouse. At least some of the people who own the rights to those games are more than willing to see them rise from the ashes.
Final thoughts
The largest difficulty probably still is identifying exactly who owns the rights to games by defunct companies? Many are probably held by some bank or other financial firm after bankruptcy actions against the original publishers or developers. The middle manager with the authority to release the rights probably knows little of the industry and will be afraid of releasing rights, for fear of being blamed for letting go of a golden goose. Until this hurdle is crossed, such a clearinghouse is unlikely to see the light of day.
I hope this illustrates that the issue of establishing a clearinghouse is far more complex than it first appears. The actual effects of legalizing these abandon ware are very complex and not very predictable. The gaming industry is afraid of it, so it generally acts very conservatively and sticks to the law and precedents established by other media such as books and films.