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An Exemption to the DMCA Would Let Game Fans Keep Abandoned Games Running (eff.org)
264 points by CapitalistCartr on Feb 10, 2015 | hide | past | web | favorite | 67 comments

I actually wrote one of the comments included in this piece, and I'd like to encourage all of you to donate to the EFF so they can continue to work on important issues like this. They do not pay their lawyers extravagantly, and most of the authors of this piece (myself included) were doing so, and will continue to do so, on a volunteer basis.

The original document is at https://www.eff.org/document/eff-comments-dmca-exemption-aba...

You can donate to the EFF at https://supporters.eff.org/donate

And if you feel as if we missed something in the document, you will be able to comment to the Copyright Office yourself when there is an open call for comments in a few months. This work helps gamers on the outside, but really, it's helping the developers, both of the games and of the after-market patches.

The original developers get to see their work live on, regardless of the business deals around their IP, and the fans who take the time to write these patches get to have some cover for their work. It's really a no-lose situation, and if an entity is couching it as otherwise, be suspicious.

Finally, if you are hankering to play old PC games online, go download GameRanger http://www.gameranger.com/ It is amazing, and it is also an entirely one-man developed piece of software. He will happily support your game if you ask him, and will do so for free.

For those unaware, in addition to donating directly you can also have 0.5% of your Amazon purchases go to the EFF as they are one of the available organizations for Amazon Smile[1].

[1] https://smile.amazon.com/

Thanks that is a great tip. Just added EFF to my amazon profile!

Moreover, if you look at games as a nascent art form, this kind of work is very important. Art develops iteratively; new artists cut their teeth by studying the great works of the past. If some of these works become abandoned and inaccessible, how can we expect new game developers and designers to learn from them and use that knowledge to further the medium?

We see the fruits of this since a while already. Or haven't you heard the cries of old gamers complaining that "I already played this game back in 1985, it's just new graphics on top."

Or as a responsible game developer studio you could release the server for your 15 year old MMORPG to the fan base. Turbine is working on releasing the server and the tools for creating new content to the fans now after they finally stopped the monthly updates last year.


From what I understand it has to do more with taxes then being responsible. Once the game actually shuts down you get a tax write off for some of the costs involved. If you keep the game running in any form. the tax write off is not available.

Thanks for the recommendation, I hadn't heard of it - I recognize quite a few games on that list I wouldn't mind playing a match or two of.

I believe Age of Empires 2 was rebooted on Steam because someone discovered there were about 3,000 games daily played on GameRanger, every day, for 5 years.

Descent was recently rebooted on Steam despite a much smaller community. I don't think they're particularly looking for big communities.

(The Steam version of Descent is basically a Dosbox container. If it's a game you really loved, pick up the Retro source port to replace Dosbox. Instructions: http://descentchampions.org/new_player.php )

That site links to direct downloads of DXX-Rebirth and explains how to use them, but never actually links to the DXX-Rebirth home page. If you'd like to know what you're installing, go here: http://www.dxx-rebirth.com/

DXX-Rebirth is great, by the way, especially if you want to play with modern joysticks or gamepads. It's entirely unclear what the difference is between Rebirth and Rebirth-with-Retro-mod, which is annoying. I can at least confirm that unmodded Rebirth plays fine in single-player.

Retro was originally envisioned as a simple mod for Rebirth -- essentially a testing ground for fixes to be put into the next version. Over time, Rebirth development has slowed significantly (still hasn't incorporated the homing missile fix from August of 2013 [0]), and Retro has gotten pretty far ahead. It's now the de facto standard for the active multiplayer pilot community, including the Descent Rangers [1]. The developers of the two mods have different goals -- the Retro developer [2] is a competitive pilot [3] who wants the game to feel like the original with improvements in the metagame, while the Rebirth developer is a casual pilot who likes to make sweeping software architecture changes for stylistic reasons, which sometimes have unintended side effects. (No offense to zico; he's done a lot of good work and we're all grateful for it.)

The key improvements in Retro:

- homing missiles follow original trajectories (important for single player as well as multi!)

- netcode fixed. Shots travel in the same direction for all players (Rebirth's compression algorithm introduced errors of up to 30 degrees in shot direction.)

- gauss/vulcan ammo no longer duplicates inappropriately

- raised network PPS limit (30 packets per second max; it's beautiful!) as well as other network fixes [4]

- collision detection fixed. Shots which were almost exactly one frame away, and aimed at the edge of the ship, were detonating prematurely due to a vector math bug.

- host options: add extra primary and/or secondary weapons, cap the number of secondary weapons allowed in the level, reduce vulcan ammo, allow players to select their own ship colors

- improved calibration settings for joystick, mouse, and gamepads

You can find more at the github page and the bountysource page [5].


[0] http://www.dxx-rebirth.com/frm/index.php/topic,1696.0.html

[1] http://descentrangers.com/Home

[2] Disclosure: I'm married to the Retro developer.

[3] Video from her perspective: https://www.youtube.com/watch?v=JLuTJz-pDaM#t=263 . That's a girls-vs-guys team game with Lioness, against the legendary "kiln" (Mr_1994) and "Arch-Angel" (Stan), at the Descent in Denver LAN in August.

[4] She wrote about the netcode fix here on HN, and one of the original developers showed up to comment: https://news.ycombinator.com/item?id=8401086

[5] https://github.com/CDarrow/DXX-Retro/issues and https://www.bountysource.com/trackers/2571293-cdarrow-dxx-re... . "JinX mode" is a spectator mode JinX was working on before he died suddenly last March, which has been renamed in his honor.

Thanks for this, it's very helpful! It would be great if this (or a condensed version) was available somewhere front-facing and obvious, like the README.txt in the GitHub project, or else linked from there. I have a pet peeve about informative links that assume the reader already knows what the thing is. :)

Developer here. Sorry about that. I really do need to make a web site.

So far, Retro has been oriented toward the several dozen active competitive pilots out there. There are so few of us; we know and see each other regularly. When someone wants to know the difference between Retro and Rebirth, they just ask me. Actually, anymore what they say to each other is, "Just get Retro". ;)

I, uh, haven't really been thinking about new players.

The differences between Rebirth and Retro in a single player game are slight; Retro is mostly oriented toward fixing pain points in competitive multiplayer. That being said, there are a few differences.

Homers and smart missiles in Retro use the game's original algorithm for tracking, while those in Rebirth use something different. So both your missiles and the superhulk's missiles will behave differently in the two versions. Rebirth homers are better at going around corners, and while they're easier to dodge the first time, they're harder to ultimately lose. If you like to dodge homers in an open room on the higher difficulties, that's where you'll see a difference.

Homers in D1 Rebirth track proxies over robots / pilots. This is accidental D2 code contaimination, and has been removed in Retro. You'll notice this in levels where the robots lay proxies -- it was a particular problem for me on level 20, back when I was playing a lot of Rebirth.

Retro has dug a couple bugs out of the collision code, one of which was introduced by Rebirth, and one of which goes back to the original game release. If you like to make ninja close dodges, especially with homers, Retro performs the same every time; Rebirth will sometimes clip you with something that you actually dodged.

Other than that, it's little HUD chrome things. Retro has shield, energy, and ammo warnings. I like them in single player, but traditionalists generally don't.

Anyway -- Rebirth isn't a bad choice for single player. I've said in the past that the Rebirth community is more focused on single player and coop, while Retro is for hardcore competitive anarchy. That is okay with me. :)

yeah, it's on the to-do list.

The initial reluctance to put something like that together stemmed from not wanting to split the community (we're still close friends with some of the guys doing Rebirth development.) We'd still like for all of this to be mainline Rebirth stuff. The projects just keep going in different directions, and eventually we'll bite the bullet and put together an actual webpage describing what Rebirth is.

(If you're interested in multi, follow the directions in the initial link to get on the Rangers mumble server. If you have a particular interest in cooperative play, Whoskyd is the guy to talk to.)

Correction to [3], "Stan" is Xciter.

Many of these abandoned games are effectively orphan works. I think if anything, there needs to be a definition of "digital orphan works", because digital IP suffers from bit rot in a way traditional media doesn't.

A 50 year old book is still there, but even a 10 year old game might not even be available for purchase anywhere (and even if it is, it's probably not immediately playable on modern hardware).

Fundamentally, we need to overhaul copyright in light of the fundamental changes to intellectual property sales brought about by digital goods. I'm not optimistic that it will happen, but for a shitty game to be copyrighted for 100 years is just ludicrous. At some point, things need to pass into the public domain.

My rule of thumb is, generally, "Is the creator still earning from this product," and in the vast majority of cases where gaming software is concerned the answer is no. There is a push through sites like GOG.com to put many old games back on sale, but often it's through middle-men and holding companies and I doubt a dime of some of the more obscure titles goes anywhere near anyone who actually helped create the things.

The result is assorted holding companies picking up a few extra pennies, but a huge range of more obscure works are still the domain of abandonware sites and efforts like the Archive.

"Is the creator still earning from this product" is a test that congress believes doesn't matter.

Walt is dead, Mickey lives on (with copyright restrictions)...

This also isn't an apt comparison, because no one is claiming that enthusiasts should own the copyright to Mario Kart.

A better comparison would be Steamboat Willie, but even that is confusing because copyright is so caught up with trademark Disney characters. IANAL, but it seems to be that Disney should be able to have exclusive ownership over Mickey the character, but not the work in which he first appeared. (Which muddies the water, I know.) Does Disney make any significant money off Steamboat Willie? (They actually might, given its culture status, I just don't know.)

An even better comparison would be if the only way Disney would let you view Steamboat Willie in a Disney-owned-and-operated facility. Like, they'll sell you a ticket or a DVD or a download, but in all cases you have to bring it to a Disney facility to actually play it back. And then one day Disney closes all the facilities, and now you have some copy of the work without any legal way to view it.

Which, if you accept the analogy, brings the situation pretty close to the one addressed by U.S. v. Paramount Pictures in 1948 (http://en.wikipedia.org/wiki/United_States_v._Paramount_Pict...), which ended the practice of studios owning their own theaters and refusing to show their pictures anywhere else.

You can still buy Steamboat Willie on DVD. Using it as an example is sort of problematic, because it is not an orphaned work, and a lot of people don't see the problem with Disney maintaining control over it. A better example would be the many orphaned animated features from the late 20's and 30's who languish in legal limbo instead of being released into the public domain (if you can't think of any examples, that's a symptom of the problem more than anything else).

>You can still buy Steamboat Willie on DVD

On an expensive (~$100), out-of-print DVD, only released in 2005. The work has been orphaned for far more of its lifetime than it has been available.

Well, that's the Disney Vault in action. (Which is a legitimate release strategy, and it's hard to claim that Disney doesn't generally try to keep its historical works available. I imagine it'll be re-released at some point in the future.)

...it seems to be that Disney should be able to have exclusive ownership over Mickey the character...

I have to disagree with this on cultural grounds. Part of the reason that copyright expires is to fertilize the ground from which new stories are grown. Shakespeare does not own Romeo. Dickens does not own Scrooge. To the extent that Mickey has become a part of our cultural mythos, Disney should not own Mickey.

The only reasonable expectation a creator should have after a reasonably short copyright term is protection from malicious misattribution and defamation. Everything else in the last century of IP law is implemented completely wrong, in my opinion.

Super Mario Kart was released for the SNES in 1992. I would absolutely argue that it should be in the public domain by now. I would also argue that Mario Kart 8 should be as well, and I'd argue you should not have copyright at all.

And the actual creator of Mickey is also long dead...

Walt Disney was given a crash-course by his artists so that he could draw a passable Mickey face when kids met him and asked him to do so.

I'd be interested in the source for this. I can see Walt having to relearn the newer Mickey style, kids only know the movies from the past 5 years anyway, but I'm pretty sure he drew the original ones. There's a lot of evidence for Ub Iwerks's really making the Disney empire's early important innovations happen in terms of animation but it wasn't like Walt was talentless at drawing.

I think they define creator as Disney the company rather than Disney the man.

Which is convenient, since Disney-the-company will never die, and need not have any actual human connection to Disney-the-man-who-actually-created-the-intellectual-property. So it provides a mechanism for people other than the person who created the work or his heirs/designated beneficiaries to profit from his work forever.

Defining "creators" as actual human beings provides a useful marker for how long a copyright is useful: at some point that human dies, and then at some point later his heirs die, and then at some point later their heirs die, etc. So you can look at the question in terms of how many generations should have a monopoly on their forefathers' works. Defining corporations as creators takes that marker away.

Copyright protects the works of natural persons, not corporations. It protects the individual creators when they make a work; they can of course immediately assign their rights to the company, eg by a work-for-hire arrangement, but [co-]creators are always natural persons.


Sure, but there's a difference between selling copies of something and pirating it for personal use. Maybe not legally, but in my opinion at least morally, and also you're much less likely to get noticed for doing the latter.

Disney's legal team has big pockets to make sure they dont lose copyrights

I tried running this to ground with some old Applesoft and Integer Basic games, even going so far as to contact the original author of a particular work for which I had the Basic listing, but which had been sold multiple times across an ocean or two, and presumably resided in the possession of some rolled up big name gaming concern. (Think: 1981 through a succession of things that ended up 20+ years later in TakeTwo.)

Even then I didn't feel comfortable creating a derivative work. The creator wasn't earning money (he was paid off in the 1980s when he sold it, although it was clearly his pride and joy), and the brand of the legal derivatives faded from favor over the years due to technology improvements.

You can find a lot of these types of games in the recently-released distro of DiscoRunner [1], an Integer Basic/Applesoft Basic interpreter. I love that these games and their source is preserved, although as someone who respects IP rights of creators, I always feel a twinge when I see someone's REM statement with a copyright and their name on it scrolling by when I do a LIST command.

[1] https://news.ycombinator.com/item?id=9026865

There's kind of a circular dependency here, since several companies use emulators developed by enthusiast reverse-engineers to package their games for resale: http://en.wikipedia.org/wiki/DOSBox#Usage

Section 1201, starting with subsection (d), contains a bunch of exceptions to copyright law. The reverse-engineering section is of particular interest.


It's summarized as such:

This exception permits circumvention, and the development of technological means for such circumvention, by a person who has lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing elements of the program necessary to achieve interoperability with other programs, to the extent that such acts are permitted under copyright law.

So this means that you can circumvent encryption for dvds/bluray to get them working on linux ect. (for Tv shows[often called Tv Programs] anyway)

So far the entertainment industry has not accepted the view that DVDs or Blu-ray discs are "a copy of a computer program", so they continue to deny that the §1201(f) exemption will protect you in this context.

You're talking about §1201(f)(1):

  Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
That doesn't seem particularly relevant to making a Linux DVD player, not only because it only applies to computer programs as works but because it only authorizes circumvention for reverse engineering and only applies to circumvention rather than circumvention tools. I would have thought the interesting part was §1201(f)(2):

  Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.
Why wouldn't that apply when you're independently creating a computer program (Linux DVD player/library) that needs to have interoperability with another program (DVD player microcode)?

off topic

Just a small request, if you are going to use indentation to quote a piece of text, please insert line breaks manually.

Otherwise the text is rendered as one long line, or in some cases as full width paragraphs, which make them very hard to read even on a full size monitor let alone a mobile device.

My personal preference is to italicise quoted text, but that is up to you!

off topic

EDIT - perhaps this is something that can be improved with the new UI that is slowly being rolled out, as it really shouldn't remain an issue for comment posters.

The MPEG2/MPEG4 are compressed streams of a program that generates motion images. The codecs are the interpreters for that program.

I think consumers need more protections than that. A game that's only a few years old might have the servers shut down in order to force players to buy the next version. The proposed exemption would let fans set up their own servers and keep playing the old version immediately.

Right, but I think a patch on an existing law is maybe not enough. We need a thorough re-examination of intellectual property. I'm not holding my breath though; as long as the conversation about IP is driven by big media, rules are only going to get more restrictive, not less.

> A 50 year old book is still there

Actually, not so much. The 120 years + life copyright on books means that only the good / famous books last. There are tons of books that were published pre-digital-age but are still under copyright and are just dying a slow death.

Their public domain status is a different issue to their preservation - books exist, are bought, traded, gifted etc centuries after they're printed, copyright or not.

Repealing the DMCA would also work. Completely overhauling the copyright system from the ground up would be even better.

I know that when you're the little guy, you have to pick your battles wisely, but there are a lot of things we can no longer do as a society because our public domain is no longer growing.

Making an exemption to the DMCA is a temporary fix. For software, we should probably have a completely separate system of granted monopoly, wherein the protections are contingent upon deposit of the source code with the patent and trademark office, which would then become public record when the protection expires (on a completely independent time scale from anything to do with Mickey Mouse).

> but there are a lot of things we can no longer do as a society because our public domain is no longer growing.

Serious question: what useful advance is being held back by a bunch of abandoned entertainment not going into the public domain?

Calvin and Hobbes action figures and the Disney XD Calvin and Hobbes cartoon.

The question is unanswerable because we don't have access to a parallel universe with sane copyrights. We can't predict that future, or even a parallel present.

I can think of a number of artistic references that would be culturally interesting ways to incorporate old video game code into new games, but there's no way to predict what will be created after several cultural iterations across a few generations. We can only imagine the art of which we are being deprived.

but isn't the DMCA what provides for safe harbor provisions?

Even the good bits of the DMCA are deeply flawed.

The safe harbor section includes the shoot first, ask questions later takedown procedure with unequal standards for claimants and defendants.

Title 3 of the DMCA addressed the issue of unauthorized copying due to loading a program from disk into RAM by explicitly authorizing computer repair technicians to run your OS and other necessary software even without having their own license. Left unaddressed is the more general reality of how bits are almost never actually moved, merely copied.

The anti-circumvention section provides for exemptions, but they only last three years so they're pretty much impossible for a serious business to rely on.

How do these games enter the public domain?

They can't. They can't be offered to the public domain after the relevant term expires in exchange for the demos protection of the IP by punishment of tortfeasance.

It is not possible for them to be copyright works then as all copyright works must eventually enter the public domain. Unfortunately this was always a truism within publication. It's part of publication itself that mode of reproduction of the work is laid bare; arguably that is what publication meant in the first instance within the purview of those writing copyright laws. Because it is not contemplated that publication could not make the work public, as that would be self-contradictory there is no really strong rendering of this need. It is, I'd argue, there though. Vis:

Berne Convention, Art.3(3)

>"The expression “published works” means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. [...]"

This section of Art.3 goes on to list works that are made public but are nonetheless not considered published and so are not protected by copyright. To my mind works that are inhibited with DRM fall in this category. That is, games - as with other works protected by DRM - are _not_ being published. Publication to the mind of those drafting the law means making the work available to be reproduced. In terms of Berne Art.3 with regard to the nature of games they don't meet with the reasonable requirements of the public either, eg continued playability.

[Thoughts/knock-downs/rejections with reasoning happily received!]

In some ways they may be more like a public performance. The venue is constrained and the ticket agreement restricts ability to reproduce artifacts from that performance. Do illegal bootlegs ever become public domain? I'm thinking they can't - they would always be an illegal bootleg.

I'm not sure why the proposal would not cover MMO games. If a game studio abandons an MMO game it is completely destroyed for the players, an exemption would be very useful in that case. Perhaps the EFF is trying to avoid too much resistance from big companies that make a lot of money on MMO games, which is understandable but unfortunate.

This is the kind of work I like to see EFF do. In particular it states that the legislation is bad, but accepts that it exists. Identifies a small part that can be changed. Campaigns to change just that small part. Rinse and repeat enough times that the legislation eventually collapses due to the number of holes in it.

It's an approach taking in account the realpolitik, and its an approach that other FOSS groups could learn a lot from as the attempt to make change happen.


One difficulty with the "collapses due to the number of holes in it" theory in the context of the DMCA triennial exemption process is that the exemptions expire automatically after three years and have to be re-applied for.

"the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period" (17 USC §1201(a)(1)(D))

(The Copyright Office has also taken the view that the decision to grant an exemption is not directly precedential in the way that a court decision would be -- that there isn't a presumption that it should be renewed, that you can't just say "I propose to renew exemption #2 from 2012 because the Librarian of Congress found it was appropriate then and the same reasons still apply, thanks!" and get a renewal on that basis. So it's quite different from impact litigation that way.)

So, for example there's nobody currently directly benefitting from some of the legal work our lawyers did in, say, the 2003 or 2009 exemption processes.

Our relationship to the exemption process is complicated. In addition to participating in it every triennial cycle but one, we have also strongly criticized it. Here's an example from 2005 (with the super-retro green and blue logo):


General question: who enforces DMCA? Legal protection would be nice, but if the company in question (say Nintendo in the MKW example) doesn't care and doesn't pursue legal action, does it matter in practice?

The only reason the company might care is because the use weakens their overall copyright case (e.g., Nintento's right to the Mario / Mario Kart brand). Enthusiasts don't care, so the interests are aligned, but the lawyers might not be.

The DMCA imposes criminal penalties for certain acts. The state prosecutes alleged criminal acts, not the alleged victims (in this case, owners of the copyright).

It matters not a whit if the owner of a copyright doesn't pursue legal action if some federal attorney somewhere decides that this is an important issue.

I really want the source code for warhammer dark omen to be released to the public. It just doesn't run on my PC anymore, and I want to make the modifications to fix it.

Or legal WoTLK servers, please :-)

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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