Part 1

In sum: this is a much more complicated problem than merely “abandonware”, because not all games come with clear ToS agreements or even clear rules as to whether we can establish a private server or not. People on the Internet literally resurrect these games from the dead for people who originally owned the game, and I don’t exactly see the harm in it. But, it’s difficult to tell whether or not this constitutes a clear violation of copyright law, or something completely different entirely. This becomes even worse when the game was a free download! So, what’s the solution here?

Clearly, this isn’t directly against any known laws, but I like to be cautious here. After all, given a proclamation either way is a scary proposition. I don’t have all the answers, so this is really going to be a personal judgment call any way you look at it. But, hopefully, I can provide some guidance for you. Just know that I am being very careful not to give anyone free license to violate their conscience or break government laws. This doesn’t fit neatly into a legal area, as far as I’m concerned, and that’s why you’ll have to make decisions yourself.

Let not many of you become teachers, my brethren, knowing that as such we will incur a ^[a]stricter judgment. ² For we all stumble in many ways. If anyone does not stumble in ^[b]what he says, he is a perfect man, able to bridle the whole body as well. ³ Now if we put the bits into the horses’ mouths so that they will obey us, we direct their entire body as well. ⁴ Look at the ships also, though they are so great and are driven by strong winds, are still directed by a very small rudder wherever the inclination of the pilot desires. ⁵ So also the tongue is a small part of the body, and yet it boasts of great things.

James 3

But, I suppose I should make an attempt at this question, because it’s been bugging me that there’s just not a clear answer to the question at all. So, here we go!

1. If there’s a clear Terms of Service attached to a game that says that private servers are a violation, then I would stay away from private servers for that particular game. The only thing you will obtain from playing it is legal action, and nobody really wants that! This applies to games both “alive” and “dead”, at least when we’re talking about online titles. If a publishers wants the game offline forever, then don’t resurrect it.
2. If a Terms of Service Agreement doesn’t exist for a game that required a subscription fee or online connection, and someone has created a private server for it, I would say it’s fine to use it with two distinct caveats: one, you own the game in some way, shape, or form, and two, that you actually paid whatever subscription fee was required for the game (if any) when the game was actually alive. There’s a difference between being a person pining for an experience you remember, and being a free-rider on a game you never actually bought or played or paid for. I suppose this would include buying used copies of the game as well.
3. If you’ve never played nor owned nor paid for that game, and you want to experience it in some way, shape, or form, this is where it gets problematic. You haven’t paid the company in question, nor have you given monetary compensation for the product to the publisher or the developer. In a market economy, this means you hold no right to actually use it yourself; whatever the true state of affairs may be, living in a free enterprise system means them’s the rules. I know that sounds harsh, but what right do you have to use someone else’s intellectual property? None, really. And you don’t get to be a free-rider simply because you “want” to.
4. For the purpose of research, of course, that’s a bit different, like I did for this article. Since the game doesn’t exist in any other form these days, Phantasy Star Online pretty much requires hooking up to a private server and playing the game that way. I own multiple copies, of course, but I never actually paid for a Hunter’s License. That puts me in a strange middle ground between the two! I would say for the purposes of reviews or articles on thing, that makes perfect sense – it’s difficult to say anything definitive about a game without playing it, and that especially follows for recommendation or reviews of said product.
5. The best way to do it, however, is simply to petition the company in question, to figure out how to get in contact with them, and get the whole community together to hopefully show consumer interest in a (very) old product. It’s happened before (Operation Rainfall), and it can happen again with the power of the Internet.

So, I guess that’s the long and the short of it. Feel free to disagree with me, or simply to shun the whole thing altogether. No matter what you think, though, companies will continue to shut down “online only” games, and the community that loved those games will resurrect them somehow despite legal threats to the contrary. I would prefer that these fangroups obtain some kind of license from the company that made the games – and this would make perfect sense, both from a perspective of goodwill towards the fans and a possible profit – but video game companies seem to hate this for some reason. More likely, they simply don’t understand how to deal with such devotion in a (relatively) new industry, and at some point they’ll have to come to grips with the situation: servers that get shut down aren’t dead!

Blizzard, I think, has taken the right course of action in some respect, but nobody likes throwing lawsuits at fans for intellectual property violations. Without a profit motive behind the players re-creating a version of the game that, literally, does not exist anymore, it’s hard to say they were in the right. The fact that the Nostalrius team is talking actively with Blizzard staff about the issue is a good start! Let’s hope it brings other companies to the same table…

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