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While any software, regardless of its intended audience, can be considered “abandonware” the primary form of software that is preserved and shared is the video game. This can be attributed to several reasons, but the primary reasons are arguably the wide appeal and unique nature of video games. Video games, unlike most software, offer a distinct experience that cannot necessarily be replicated or improved by a newer version or sequel. Video games are subject to some of the strictest security measures of any software type. Of particular note, and central to the ethical case study I will be examining, is “Always-On DRM”. This is a security measure that forces a piece of software to remain connected and be persistently authenticated by an online server owned by the creator or publisher. While not a problem when the company is still actively supporting the program, this security measure becomes a huge issue once a video game becomes “abandonware”. When a company stops supporting their software that also includes the discontinuation of the authentication server. The software, when run, checks for an authentication server that no longer exists and therefore “fails” the authentication check. The software can no longer be run in this state. Reactivating the server is not something the company is open to doing, so a workaround must be found if continued use of the software is desired. The easiest, quickest, and cleanest way to circumvent this is to “crack” the software itself and disable the server authentication check. By either fully disabling the security check or tricking it into believing that the check was passed, the software can be fully accessed. The Library of Congress, who is responsible for DMCA copyright exceptions, actually addressed this specific case recently, making it legal for players to “…modify their copy of a game to eliminate the need for an authentication server after the original server is shut down” (Higgins, Mcsherry, Stoltz and Walsh). Comment by Nate Olson: Clear summary of the topic in this paragraph, and this is a good use of an outside source at the end of the paragraph.

There are several ethical issues involved with the cracking of abandonware that I will discuss: the utilitarian duty of the software engineer to the “most happiness,” the Kantian right of the content owner and content creators to be treated as “ends” not mere “means,” and the prima facie duties of the software engineer who is cracking the software. The distribution and cracking of abandonware is, despite the case mentioned previously, typically illegal. While some abandonware has had its copyright officially waived, the vast majority is still protected by copyright and the redistribution and modification of it is not permitted under the law. However, legality is not the sole or even necessarily the best indicator of the ethical nature of an action. Utilitarianism calls for the “maximization of overall happiness” and it seems to be a rather obvious point that the general public’s happiness at being able to continue access to their software would outweigh the unhappiness of the content creator’s whose work is being accessed. (Rowan and Zinaich, 19) It is clearly an overall net gain for the public to crack the software. Yet this is potentially a case where the majority is acting as a tyranny and utilitarianism is not prescribing a “fair and ethical” course of action as outlined by Rowan and Zinaich in their critique of act-utilitarianism. (17) Utilitarianism would also dictate cracking the software in all cases, including piracy, since the happiness of the general public upon obtaining free software would greatly outweigh the grave unhappiness of the developers. Yet what differentiates piracy from the case of cracking to allow previous owners continued access? Comment by Nate Olson: Clear sign-posting Comment by Nate Olson: Strong discussion of utilitarianism in this paragraph. The paper cites details from the text, shows how utilitarianism would assess the case, and makes a perceptive point about why utilitarianism is not the best approach to take.

“Abandonware” is not a permanent, immutable state for software. Software can be re-released by both the original publisher as well as new publishers who license the publishing rights. This is particularly true for video games which, like other forms of media such as movies, are often re-released as “remastered” or “updated” editions to fans. The re-release of a program offers a chance for creators to make continued profits from their intellectual property by offering an updated and supported version of their program. As well, ownership of a piece of software is not analogous to the act of owning nearly any other item. When purchasing software it is standard practice for the user to be purchasing a license to use a piece of software. Therefore the user does not have a right to continued access to a program. In Rowan and Zinaich it is mentioned that Kant’s categorical imperative dictates that people should always “…treat humanity, whether in your own person or in the person of any other, always as and end and never as a means only”. (27) The user asserting a continued right to access to a program could be argued as a violation of the rights of the creators to discontinue service—the user is treating the creator as a “means” to gain a program they wish to use rather than as an “ends” and respecting the fact that the creators no longer wish to offer their provided service. Comment by Nate Olson: Good use of Kant here to illustrate the main ethical concern on the side of the creators of the software.

The software engineer who cracks the software must weigh the potential benefits and harm to both the public and the creator/copyright holder when deciding whether their actions will be ethical. W.D. Ross’ version of deontology lists seven duties he considers to be central to ethical action and in his reasoning we can find a solid argument for cracking the software. The primary difference between cracking for piracy and cracking for continual access is the duty of nonmaleficence or the duty to not harm others. (Rowan and Zinaich, 32) While piracy is a clear financial harm to the creators of the software, cracking the software so that owners can continue to access it reduces the harm significantly. The creators already made a profit from the initial sale of the program to the user, so no sale is ‘lost’ with the continued use of the program and therefore no harm is inflicted. Comment by Nate Olson: Thoughtful application of Ross’s ideas to this case.

A potential objection to my argument is that the cracking of the software creates a tool that would help pirates. Pirates could use the crack to gain access to the software without ever purchasing it by sharing the original program’s files and using the crack to circumvent the security features. As well, the argument could be made that allowing further access to the original program would hurt sales for a new, updated or rereleased version of the program. Both of these arguments state that the software engineer, upon cracking the program, would in fact be harming the creators. Yet, I would argue that the creation of a tool that aids an illegal and unethical act does not necessarily make the tool or making of the tool illegal or unethical. The tool itself is not causing harm since, in the vast majority of cases, it is distributed by itself and every other file needed to run the program is not provided. Those who legally own the program have the files they need already—it is the illegal sharing of those files that I would argue is unethical and causing harm to the creators. The second argument is a true one and is therefore more difficult to address—there is financial harm in the fact that the user isn’t forced to buy a new version. However, if a company’s business plan is to purposefully deprive people of access to an item to force them to buy a new version, I would argue that the creators are violating the categorical imperative. They are using the users as means to gain money rather than as ends who may prefer to simply use the older product. The company is robbing the users of their autonomy to pick whether they prefer the older or newer versions of a product by eliminating the older version entirely. Comment by Nate Olson: Good objection to address. It raises a reasonable challenge to one of the author’s main points. Comment by Nate Olson: Logical and well-developed replies to the objection in the rest of the paragraph.

Abandonware is an important legal and ethical grey area in the field of software engineering. While cracking abandonware can lead to unfortunate side effects like piracy, I argue that the overall public good outweighs the potential and limited harm caused to the content creators. A software engineer that cracks the software of another engineer’s making is acting ethically if the crack allows users to access their legally obtained software once more. Comment by Nate Olson: Brief conclusion that restates thesis and ties things together.

Works Cited

1. "Abandonware." Merriam-Webster.com. Merriam-Webster, n.d. Web. 16 Mar. 2016.

2. Higgins, Parker, Mcsherry, Corynne, Stoltz, Mitch, and Walsh, Kit. "Victory for Users: Librarian of Congress Renews and Expands Protections for Fair Uses." Electronic Frontier Foundation. Electronic Frontier Foundation, 27 Oct. 2015. Web. 16 Mar. 2016.

3. Rowan, John R., and Zinaich, Samuel, Jr. “Deontological Ethics.” Ethics for the Professions. Ed. Rowan and Zinaich. Wadsworth, 2003. 22-31. Print.

4. Rowan, John R., and Zinaich, Samuel, Jr. “Deontological Ethics. – W.D. Ross” Ethics for the Professions. Ed. Rowan and Zinaich. Wadsworth, 2003. 31-35. Print.

5. Rowan, John R., and Zinaich, Samuel, Jr. “Utilitarian Ethics” Ethics for the Professions. Ed. Rowan and Zinaich. Wadsworth, 2003. 12-21. Print.

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