The phrase “Beyond Economic Recovery” is one of my favorite phrases because it succinctly describes how to determine if you can safely share an old program, manual, game, etc. online. Please note that safe != legal. It is always illegal to share things you don’t own and you are responsible for any repercussions if you break your country’s laws. This post isn’t about whether it is legal. This post is about whether or not you should be overly worried that you will be pursued by some IP holder’s legal department and sued into the ground.
This would be a good time to mention that I am not a lawyer, and this is not legal advice.
Unless you are a large-scale pirating operation already under government investigation, what usually happens when infringement is discovered is that the infringing party is notified through a cease and desist letter. Quick compliance with the terms of the letter is almost always enough to avoid further action. But what if you are on a Quixote-like mission to share this rare vintage content with the world and really, REALLY want it to stay publicly available? That’s when you apply The Phrase.
“Beyond Economic Recovery” isn’t my phrase; it was uttered to me in more than one interview I’ve had with lawyers on this specific subject. Here’s how to use it: Let’s say you want to share a 30-year-old game on the web for others to grab. If you’re worried about legal repercussions, perform some due diligence and research if the company is actively using the work (the code, its trademarks, its intellectual property, etc.) to earn money, or has immediate or announced plans to do so. If so, such as in the case of Super Mario Brothers, don’t share it. But if not, as in the case of something like Space Strike, you have almost nothing to worry about. When a company is made aware of infringement (usually discovered via automated google searches and machine learning), they perform a quick check of whether or not they would lose money sending the infringing party a cease and desist letter. The average cost of a C&D letter, accounting for all time and services rendered, is roughly $4000. If the company has an internal legal department or prepares communication in batches (or both), that number can be a little less, but it’s still thousands of dollars. So the mental check is essentially “Can we make more than $4000 on the asset or intellectual property this person is threatening to dilute by giving it away for free?” If the answer is “no”, they don’t bother sending a C&D letter.
The Internet Archive enjoys both non-profit status and various DMCA exemptions, which allows them to make various historically-relevant software works available online — but a DMCA exemption doesn’t prevent companies from sending them C&D letters to protect their trademarks or intellectual property. (It also doesn’t succinctly define what is covered under the exemption, as it uses words like “obsolete” without defining what time period “obsolete” refers to.) Some works that used to be public on the IA have since been hidden at the request of the IP holder. For everything else that is still public there, The Phrase is the principle that “protects” those software portions of The Internet Archive; they are simply Beyond Economic Recovery.